       In the United States Court of Federal Claims
                                      No. 13-319 C

                                  (Filed: June 13, 2013)

                                              )
IAN OWEN SHARPE et al.,                       )
                                              )
                    Plaintiffs,               ) Prison Mailbox Rule Applicable
                                              ) to Filing of Incarcerated Plaintiffs’
v.                                            ) Pro Se Complaint
                                              )
THE UNITED STATES,                            )
                                              )
                    Defendant.                )
                                              )

Ian Owen Sharpe, Gregory R. Young and Michael Troy Olson, Marianna, FL, pro se.

Veronica N. Onyema, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, for defendant.

                                        ORDER

HEWITT, Chief Judge

I.    Background

        Plaintiffs’ complaint was filed on receipt by the office of the Clerk of Court on
May 6, 2013. See generally Allegation of Fed. Constitutional Question Jurisdiction
(Compl.) (Complaint or Compl.), Docket Number (Dkt. No.) 1. Effective May 1, 2013,
the court’s filing fee had increased from $350 to $400. See U.S. Court of Federal Claims
Schedule of Fees, available at www.cofc.uscourts.gov/fee-schedule. Accordingly,
when--on May 13, 2013--the court received a filing fee of $350 from plaintiffs, the
court’s records reflected an outstanding balance of $50. See generally Dkt. (reflecting
partial payment).

        On May 21, 2013 the court issued an order dismissing plaintiffs’ Complaint, sua
sponte, for lack of subject matter jurisdiction. Order of May 21, 2013, Dkt. No. 8, at 1;
plaintiffs’ case was closed on May 22, 2013, see J., Dkt. No. 9 (entering judgment for
defendant and dismissing the Complaint). Plaintiffs were ordered to pay to the court “the
$50 balance they owe with respect to the court’s filing fee.” Order of May 21, 2013, at 3.
        Now before the court is plaintiffs’ Motion to Quash or Vacate Instruction to Pay
(plaintiffs’ Motion or Pls.’ Mot.), received June 10, 2013. Plaintiffs’ Motion was not
filed by the office of the Clerk of Court because this case is closed and because there was
no provision in the Rules of the United States Court of Federal Claims for the filing of
plaintiffs’ Motion.

       Because the court finds that justice requires that plaintiffs’ Motion be filed, the
court directs that the case be reopened and GRANTS LEAVE for the filing of plaintiffs’
Motion. The office of the Clerk of Court SHALL FILE plaintiffs’ Motion.

        Plaintiffs assert in their Motion that, pursuant to the “Prisoner litigation ‘mailbox
rule’ prescribed by the Supreme Court,” plaintiffs’ Complaint should have been
“‘considered filed at the moment of delivery to prison authorities, rather than at a later
point in time after authorities have forwarded item to court and court has formally
recorded its receipt.’” Pls.’ Mot. 1-2 (misquotation in original) (emphasis omitted)
(quoting Edwards v. United States, 266 F.3d 756, 758 (7th Cir. 2001)). Specifically,
plaintiffs contend that their Complaint should be deemed filed on April 30, 2013 and that
they should therefore be subject to the $350 filing fee in effect at that time. See id.

       For the following reasons, plaintiffs’ Motion is GRANTED.

II.    Legal Standards

       The so-called prison mailbox rule was established by the United States Supreme
Court (Supreme Court) in Houston v. Lack, 487 U.S. 266 (1988). In Houston, a civil
case in which a pro se prisoner filed a petition for habeas corpus, the Supreme Court
considered whether, under Rule 4(a)(1) of the Federal Rules of Appellate Procedure (Fed.
R. App. P.), a pro se prisoner’s notice of appeal was “to be considered filed at the
moment of delivery to prison authorities for forwarding or at some later point in time.”
Houston, 487 U.S. at 268; cf. Fed. R. App. P. 4(a)(1) (providing that, in a civil case, a
notice of appeal must be filed with the district clerk within thirty days after the entry of
the judgment or order being appealed). The Supreme Court held in Houston that the pro
se prisoner’s “notice of appeal was filed at the time [the] petitioner delivered it to the
prison authorities for forwarding to the court clerk.” Houston, 487 U.S. at 276.

        In deciding Houston, the Supreme Court applied the logic of Fallen v. United
States, 378 U.S. 139 (1964), superseded by amendment to Fed. R. Crim. P. 37(a), 18
U.S.C. app. (Supp. II 1966) (repealed 1968)1 (providing that a district court may extend

       1
         Rule 37(a) of the Federal Rules of Criminal Procedure (Fed. R. Crim. P.) was abrogated
and replaced by Rule 4(b) of the Federal Rules of Appellate Procedure (Fed. R. App. P.);
nevertheless, the substance of the amendment to Fed. R. Crim. P. 37(a) was transferred to Fed.

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the time for filing a notice of appeal “[u]pon a showing of excusable neglect”), as
recognized in Carlisle v. United States, 517 U.S. 416 (1996). See Houston, 487 U.S. at
269-70 (discussing Fallen). In Fallen, a criminal case, the incarcerated pro se petitioner
sent letters requesting a new trial and requesting an appeal to the relevant district court.
Fallen, 378 U.S. at 141-42. The letters were received four days after the ten-day period
to appeal expired, but the date on the letters indicated that they were delivered to prison
authorities for mailing within the appeals period. See id. The Supreme Court held in
Fallen that, because the “petitioner did all he could under the circumstances,” the Federal
Rules of Criminal Procedure should not be read “so rigidly as to bar a determination of
[the petitioner’s] appeal on the merits.” Id. at 144. The concurring opinion in Fallen
suggested that, for the purposes of Rule 37(a) of the Federal Rules of Criminal Procedure
as it then existed, “a defendant incarcerated in a federal prison and acting without the aid
of counsel files his notice of appeal in time, if, within the 10-day period provided by the
Rule, he delivers [the] notice to the prison authorities for forwarding to the clerk of the
District Court.” Id. (Stewart, J., concurring).

      Relying on the analysis of the concurring opinion in Fallen, the Supreme Court in
Houston concluded that the incarcerated pro se petitioner timely filed his notice of appeal
when he delivered his notice of appeal to prison authorities for forwarding to the
appropriate district court before the filing deadline. Houston, 487 U.S. at 270.

        Since Houston, the trend in federal courts appears to be toward extending the
prison mailbox rule to all pro se prisoner district court filings. See Edwards, 266 F.3d at
758 (discussing the expansion of the Houston prison mailbox rule and stating that “every
other circuit to have considered the point” appears to have “assumed that the mailbox rule
applies to all prisoner district court filings” (citing Tate v. Hemingway, 8 F. App’x 361,
363 (6th Cir. 2001) (unpublished); In re Rashid, 210 F.3d 201, 204 (3d Cir. 2000) (per
curiam), superseded by statute on other grounds, Violent Crime Control and Law
Enforcement Act of 1994, Pub. L. No. 103-322, § 320934, 108 Stat. 1796, 2135 (codified
at 11 U.S.C. § 523(a)(13) (1994)), as recognized in In re Thompson, 418 F.3d 1362 (3d
Cir. 2005); Klein v. McClaury, 221 F.3d 1352 (10th Cir. 2000) (unpublished table
decision); Garrett v. United States, 195 F.3d 1032, 1034 (8th Cir. 1999); Anyanwutaku v.
Moore, 151 F.3d 1053, 1057 (D.C. Cir. 1998)). Further, a number of courts have applied
the prison mailbox rule to the filing of a pro se prisoner’s complaint, in particular. See,
e.g., Cooper v. Brookshire, 70 F.3d 377, 380 (5th Cir. 1995) (“[W]e join all other circuit
courts that have considered this issue and extend the [Supreme] Court’s conclusion [in
Houston] to the filing of a prisoner’s pro se complaint under Rule 5(e) [of the Federal


R. App. P. 4(b). Carlisle v. United States, 517 U.S. 416, 424 n.4 (1996). Compare Fed. R. Crim.
P. 37(a), 18 U.S.C. app. (Supp. II 1966) (repealed 1968) (stating that a district court may extend
the time for filing a notice of appeal “[u]pon a showing of excusable neglect”) with Fed. R. App.
P. 4(b)(4) (stating that, in a criminal case, a district court may extend the time for filing a notice
of appeal “[u]pon a finding of excusable neglect or good cause”).

                                                  3
Rules of Civil Procedure (Fed. R. Civ. P.)]”); Dory v. Ryan, 999 F.2d 678, 682 (2d Cir.
1993) (extending Houston to the filing of complaints on the basis that a “prisoner simply
has no control over the processing of his complaint, and he should not be required to do
more under Fed. R. Civ. P. 5(e) than turn his complaint over to prison officials within the
statute of limitations period”), modified on reh’g on other grounds, 25 F.3d 81 (2d Cir.
1994); Garvey v. Vaughn, 993 F.2d 776, 783 (11th Cir. 1993) (holding that the United
States Court of Appeals for the Eleventh Circuit “extends Houston to pro se prisoners
filing complaints in section 1983 cases and claims under the Federal Tort Claims Act);
Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 736 (4th Cir. 1991) (per curiam)
(finding Fed. R. Civ. P. 5(e) “so similar to the Rules at issue in Houston . . . that it
permits identical interpretation”).2

        In Bernaugh v. United States, 168 F.3d 1319 (Fed. Cir. 1998) (per curiam)
(unpublished table decision), the United States Court of Appeals for the Federal Circuit
(Federal Circuit) applied the prison mailbox rule to an incarcerated pro se plaintiff’s
motion for reconsideration. See Bernaugh, 168 F.3d 1319 (finding that the record
supported a finding that the plaintiff’s motion was given to prison officials prior to the
filing deadline and concluding, therefore, that the motion could be deemed timely filed).
In Bernaugh, the Federal Circuit also articulated the prison mailbox rule broadly:

       In [Houston], the Supreme Court recognized that incarcerated prisoners
       face special challenges in complying with court filing deadlines. In
       particular, the prisoner has no way to ensure that prison officials will act
       promptly to forward the filing to the court. As a result, a prisoner’s
       submission may be deemed filed with the court when it has passed into the
       control of the prison officials.

Id. (citing Houston, 487 U.S. at 272).

III.   Discussion

        Based on the articulation of the Houston prison mailbox rule by the Federal
Circuit in Bernaugh and the national trend toward applying the prison mailbox rule to all
filings by incarcerated pro se litigants at the trial court level, see supra Part II, the court
holds that the prison mailbox rule is applicable in this court with respect to the filing of
       2
           Rule 5 of the Federal Rules of Civil Procedure (Fed. R. Civ. P.) has been amended and
restyled so that subdivision (e) no longer exists. See generally Fed. R. Civ. P. 5. One of several
similar former versions of Rule 5 provided in subsection (e), “‘The filing of pleadings and other
papers with the court as required by these rules shall be made by filing them with the clerk of
court . . . .’” See Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 736 (4th Cir. 1991) (per
curiam) (emphasis omitted) (quoting a former version of Fed. R. Civ. P. 5(e)). The current Rule
5 contains similar language. See Fed. R. Civ. P. 5(d)(2) (“A paper is filed by delivering it . . . to
the clerk; or . . . to a judge who agrees to accept it for filing . . . .”).

                                                  4
an incarcerated pro se plaintiff’s complaint. Therefore, because “a prisoner’s submission
may be deemed filed with the court when it has passed into the control of the prison
officials,” see Bernaugh,168 F.3d 1319, the court must determine whether plaintiffs’
Complaint was delivered to prison officials for filing prior to the court’s May 1, 2013 fee
increase. For the following reasons, the court concludes that it was.

        First, plaintiffs’ Complaint is dated April 30, 2013. Compl. 23. In addition, as
plaintiffs point out, see Pls.’ Mot. 1, a request for the withdrawal of funds in the amount
of $350 from plaintiff Gregory Young’s personal account for “Court Fees” is dated April
29, 2013, see id. at Ex. 1 (request for withdrawal). Plaintiffs represent that “they are
accustomed to” requests for withdrawals being completed “by Electronic Transfer of
Funds . . . the same day.” Pls.’ Mot. 1. Given that the request for withdrawal was time
stamped 4:31:22 p.m. on April 29, 2013 and was for the full amount of the court’s filing
fee at that time, see id. at Ex. 1 (request for withdrawal), the court has no reason to doubt
plaintiffs’ assertion that, the next day, on April 30, 2013 the Complaint was placed in the
institutional mail system, cf. Pls.’ Mot. 1 (“On April 30th, 2013, the Plaintiffs filed a
Complaint with this Court . . . .”).

        Plaintiffs’ Complaint is therefore deemed filed on April 30, 2013. Because the
court’s filing fee at that time was $350 and because plaintiffs have paid that amount in
full, plaintiffs’ Motion is GRANTED, and the court’s instruction that plaintiffs pay the
court an additional $50 is VACATED-AS-MOOT.

       IT IS SO ORDERED.

                                                  s/ Emily C. Hewitt
                                                  EMILY C. HEWITT
                                                  Chief Judge




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