     Case: 14-41352      Document: 00513004710         Page: 1    Date Filed: 04/14/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                    No. 14-41352                                   FILED
                                  Summary Calendar                             April 14, 2015
                                                                              Lyle W. Cayce
                                                                                   Clerk
DAWN MOORE-AHMED,

                                                 Plaintiff – Appellant,
v.

JOHN MCHUGH, Secretary of the Army, Department of the Army,

                                                 Defendant – Appellee.




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                              USDC No. 5:14-CV-14


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Dawn Moore-Ahmed appeals the district court’s dismissal of her Title VII
discrimination claims. The district court granted Appellee’s motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) based on a conclusion that
Moore-Ahmed’s civil complaint was not filed within ninety calendar days of her
receipt of a right-to-sue letter from the Equal Employment Opportunity




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 14-41352       Document: 00513004710          Page: 2     Date Filed: 04/14/2015



                                       No. 14-41352
Commission, as required by statute. 1 It is undisputed that the complaint was
stamped as “filed” by the district court clerk and entered into the official docket
on October 9, 2013, two days after the statutory limitation period expired.
“Courts within this circuit have repeatedly dismissed [such] cases . . . .” 2
       Moore-Ahmed’s sole argument on appeal is that we should treat the
complaint as having been filed on October 7, 2013, within the limitation period,
because she purports that the district court clerk physically received it on that
date. Our court has recognized “the widely accepted definition that a ‘paper is
filed when it is delivered to the proper official and by him received and filed.’” 3
We have also held that in some circumstances, “when [a complaint] is in the
custody of the clerk within the time required by statute, [it] has been ‘filed’
within the requisite time despite the clerk's failure to actually ‘file’ [it].” 4 In
this case, however, the district court expressly determined that Moore-Ahmed
failed to establish that the complaint had been delivered to the clerk on
October 7 to overcome the “clear record of the [October 9] filing date” evidenced
in the docket and on the face of the complaint itself. Moore-Ahmed’s argument
is thus unavailing.
       Having considered Moore-Ahmed’s brief, the record, and the applicable
law, we conclude that the district court correctly granted Appellee’s motion to
dismiss. Appellee’s motion for summary affirmance is GRANTED and the
judgment of the district court is AFFIRMED. Appellee’s alternative motion for
an extension of time to file a merits brief is DENIED as unnecessary.


       1  42 U.S.C. § 2000e-5(f); see Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th
Cir. 1992).
        2 Bowers v. Potter, 113 F. App’x 610, 612 (5th Cir. 2004) (citation omitted); see, e.g.,

Taylor v. Books A Million, 296 F.3d 376, 379-80 (5th Cir. 2002).
        3 Carillo v. Louisiana Ins. Guar. Ass’n, 559 F.3d 377, 381 (5th Cir. 2009) (quoting

United States v. Lombardo, 241 U.S. 73, 76 (1916)) (emphasis added).
        4 Hernandez v. Aldridge, 902 F.2d 386, 388 (5th Cir. 1990) (emphasis in original)

(citing Ward v. Atl. Coast Line R.R. Co., 265 F.2d 75, 80 (5th Cir. 1959)).
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