                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          November 30, 2005
                             FOR THE TENTH CIRCUIT
                                                                             Clerk of Court

    OZELL E. BARRETT; BEATRICE
    ANDERSON; ROLAND PATRICK;
    BILLY BLOOMER,

                Plaintiffs-Appellants,                     No. 05-6055
                                                    (D.C. No. CIV-03-1198-HE)
    v.                                                     (W.D. Okla.)

    DONALD RUMSFELD, Secretary
    Department of Defense; DEFENSE
    LOGISTICS AGENCY,

                Defendants-Appellees.


                             ORDER AND JUDGMENT             *




Before LUCERO , ANDERSON , and BRORBY , Circuit Judges.



         Plaintiffs, appearing pro se, appeal from the district court’s dismissal of

their Title VII action. We exercise jurisdiction under 28 U.S.C. § 1291 and

AFFIRM.



*
  The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is not
binding precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      The procedural history of this case is unusual, and we summarize only the

events relevant to this appeal. On November 12, 1999, Ishmeal Abdul-Raheem

filed a complaint with the equal employment opportunity complaint program of

defendant-appellee Defense Logistics Agency (“DLA”), alleging racial

discrimination in the DLA’s employment practices and requesting a class action.

The DLA dismissed the complaint for failure to meet the class requirements and

for failure to state a claim, and the Equal Employment Opportunity Commission

(“EEOC”) affirmed the dismissal in a decision dated May 1, 2003.

      On September 2, 2003, plaintiffs initiated this action by filing a motion for

certification of a class action, which the district court treated as a class action

complaint (“Barrett I”). Referencing Abdul-Raheem’s administrative proceeding

before the DLA, the complaint in this action alleged discrimination under a

variety of legal theories, including Title VII; 42 U.S.C. §§ 1981, 1983, and 1985;

and breach of contract. The court granted plaintiffs the opportunity to file an

amended complaint to include any claims raised by plaintiff Ozell Barrett in a

separate and later-filed action, Barrett v. Rumsfeld, CIV-04-756-HE (W.D. Okla.,

filed June 21, 2004) (“Barrett II”), indicating that it would dismiss Barrett II by

separate order, which it did. Plaintiffs never filed an amended complaint.




                                          -2-
      Defendants moved to dismiss the complaint with prejudice for lack of

subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) because it was

filed more than ninety days after receipt of the EEOC’s dismissal of the appeal

and notice of right to sue. The district court granted the motion and dismissed the

action with prejudice. Barrett then filed a motion asking the court to permit the

case to continue in order to address the claims originally raised in Barrett II. The

court vacated its order of dismissal as to those claims raised in Barrett II only,

and ordered Barrett to file an amended complaint that set forth those of his

Barrett II claims that differed from the claims in this case. The court warned

Barrett that the case would be dismissed if he failed to comply with its order.

Barrett failed to file an amended complaint. Instead, he filed a new class action

complaint in yet a third action, apparently alleging discrimination arising from a

completely different administrative complaint. The district court then dismissed

this action with prejudice because Barrett failed to comply with its order.

Plaintiffs appeal.

      Even though we review the pleadings and other papers of pro se plaintiffs

liberally and hold them to a less stringent standard than those drafted by

attorneys, see Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991),

plaintiffs’ pro se status does not relieve them from complying with procedural

rules applicable to all litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.


                                          -3-
1994). Plaintiffs have not challenged the district court’s dismissal of the Barrett

II claims. Therefore, that issue is waived. See State Farm Fire & Cas. Co. v.

Mhoon, 31 F.3d 979, 984 n.7 (10th Cir. 1994) (stating that failure to raise an

issue in an opening brief results in waiver of that issue).

      The sole issue on appeal, thus, is whether the district court erred in

dismissing the case for lack of subject matter jurisdiction because plaintiffs failed

to file their complaint “[w]ithin 90 days of receipt of the Commission’s final

decision on an appeal[.]” 29 C.F.R. § 1614.407(c); see also 42 U.S.C.

§ 2000e-16(c) (same). We agree with the district court that plaintiffs filed the

class complaint beyond the ninety-day period, but conclude that the court should

have decided the matter under Rule 12(b)(6), not 12(b)(1). “Compliance with the

filing requirements of Title VII is not a jurisdictional prerequisite, rather it is a

condition precedent to suit that functions like a statute of limitations and is

subject to waiver, estoppel, and equitable tolling.” Million v. Frank, 47 F.3d 385,

389 (10th Cir. 1995). Accordingly, motions to dismiss for failure to file a Title

VII civil action within the ninety-day filing period should be considered under

Rule 12(b)(6). Anjelino v. New York Times Co., 200 F.3d 73, 87 (3d Cir. 1999). 1


1
  Ordinarily, if “matters outside the pleading are presented to and not excluded by
the court, the [Rule 12(b)(6)] motion [must be] treated as one for summary
judgment.” Fed. R. Civ. P. 12(b). However, a district court may review
indisputably authentic copies of documents referred to in the complaint that are
                                                                       (continued...)

                                           -4-
      We review de novo an order dismissing a Title VII civil action for failure

to file within the ninety-day period, using the same standard applied by the

district court. Conkle v. Potter, 352 F.3d 1333, 1335 (10th Cir. 2003). Under this

standard, we “accept as true all well-pleaded facts, as distinguished from

conclusory allegations, and view those facts in the light most favorable to the

nonmoving party.” Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304

(10th Cir. 1998).

      There is no dispute that plaintiffs filed their class action complaint more

than ninety days after Abdul-Raheem received the EEOC’s notice of his right to

sue. Based on Rule 6(e), the Supreme Court has established a presumption that a

claimant receives a right-to-sue letter three mailing days after the date on the

notice. Baldwin Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 n.1 (1984).

Plaintiffs have not presented any evidence or argument that such a presumption is



1
 (...continued)
central to a plaintiff’s claim without converting the motion to one for summary
judgment. GFF Corp. v. Associated Wholesale Grocers, Inc., 130 F.3d 1381,
1384-85 (10th Cir. 1997). The district court considered public documents related
to the handling of Abdul-Raheem’s complaint by the DLA and the EEOC,
including the right-to-sue letter. These documents were not attached to the
complaint, but the complaint referenced the Abdul-Raheem administrative
proceeding by number. We conclude that consideration of these documents
without treating the motion to dismiss as one for summary judgment is proper
under Rule 12(b)(6). These documents, particularly the right-to-sue letter, are
central to the timeliness of the filing of plaintiffs’ claim in this action, and
plaintiffs do not contest their authenticity.

                                         -5-
incorrect in this case. We therefore assume that the notice was mailed on

Thursday, May 1, 2003, and received on Tuesday, May 6, 2003. Plaintiffs had to

file their complaint on or before August 4, 2003. They filed it on September 2,

2003, well after the expiration of the ninety-day period.

      Plaintiffs have provided no explanation for their failure to file their

complaint within the ninety-day period. Their argument that the DLA and the

EEOC mishandled their complaint does not explain their failure to file their

action in the district court within the ninety-day period. Plaintiffs also contend

that their action arose out of their own individual complaints, not that of Abdul-

Raheem. This argument fails. Plaintiffs’ individual agency complaints, if any,

are inadequate to support jurisdiction over their class complaint because

administrative exhaustion of individual Title VII claims is not sufficient to

exhaust administrative remedies for class claims, Belhomme v. Widnall, 127 F.3d

1214, 1217 (10th Cir. 1997), and exhaustion is a jurisdictional requirement.

Sizova v. Nat’l Inst. of Stds. & Tech., 282 F.3d 1320, 1325 (10th Cir. 2002).

Plaintiffs have not shown that any of their individual agency complaints asserted

class claims. Therefore, to the extent that plaintiffs allege that their class

complaint is based on their own individual agency complaints and not the

Abdul-Raheem administrative proceeding, the district court lacked jurisdiction.




                                          -6-
      As noted above, the ninety-day filing period for Title VII civil actions is

subject to equitable tolling, waiver, and estoppel. Million, 47 F.3d at 389.

Plaintiffs have not advanced any arguments that the district court should have

applied equitable tolling. They have pointed to no active deception on the part of

defendants or any extraordinary impediments to the assertion of their rights. Id.

(“Equitable tolling may be appropriate where the defendant has actively misled

the plaintiff respecting the cause of action, or where the plaintiff has in some

extraordinary way been prevented from asserting his rights”) (quotation omitted).

We also are given no evidence of waiver and see no reason to apply estoppel.

Additionally, we decline to excuse plaintiffs’ late filing on the basis of their pro

se status. See Nielsen, 17 F.3d at 1277 (holding that pro se litigants must follow

procedural rules that govern other litigants).

      The judgment of the district court is AFFIRMED.

                                                     Entered for the Court


                                                     Carlos F. Lucero
                                                     Circuit Judge




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