Instituto De Educacion Universal Corp. v. United States Department of Education

          United States Court of Appeals
                      For the First Circuit


No. 99-1628

              INSTITUTO DE EDUCACION UNIVERSAL CORP.,
                       Plaintiff, Appellant,

                                v.

        UNITED STATES DEPARTMENT OF EDUCATION, ET AL.,
                    Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF PUERTO RICO

     [Hon. Raymond L. Acosta, Senior U.S. District Judge]


                              Before

                      Torruella, Chief Judge,

                   Coffin, Senior Circuit Judge,

                     and Selya, Circuit Judge.


     Roger Juan Maldonado, with whom Balber Pickard Battistoni
Maldonado & Van Der Tuin, PC and Frank D. Inserni were on brief,
for appellant.
     Anthony A. Yang, Attorney, Appellate Staff, Civil Division,
United States Department of Justice, with whom David W. Ogden,
Acting Assistant Attorney General, Guillermo Gil, United States
Attorney, and Barbara C. Biddle, Attorney, Appellate Staff, were
on brief, for appellees.
April 12, 2000
              SELYA, Circuit Judge.           This procedural motley stems

from    the   admittedly      awkward    efforts     of    plaintiff-appellant

Instituto de Educacion Universal Corp. (the Institute) to secure

judicial review of a final determination of the United States

Department of Education (DOE) pursuant to the Administrative

Procedure Act (the APA), 5 U.S.C. §§ 702-706.                   In the pages that

follow, we summarize the strange series of events that led to

the district court's dismissal of the action and explain why, in

the interests of justice, we deem it appropriate to vacate the

order of dismissal in part and remand for further proceedings.

I.     BACKGROUND

              The Institute is a private, not-for-profit educational

institution      based   in   Puerto    Rico.       At    the    times   pertinent

hereto, it offered an array of post-secondary courses.                      Since

1984, its recruitment efforts have depended heavily on the

availability of federal student financial assistance programs

established under the aegis of Title IV of the Higher Education

Act of 1965, 20 U.S.C. §§ 1070-1099c-2, and administered by DOE.

              In 1994, DOE's Inspector General undertook an audit

that resulted in three findings adverse to the Institute.                      The

auditors concluded that the Institute had (1) overstated its

"clock    hours"    of   instruction;         (2)   requisitioned        excessive

student aid payments (and compounded the problem by using the


                                        -3-
ill-gotten funds for unauthorized purposes); and (3) failed to

refund    grants      received       for    pupils    who     never   completed      the

programs to which the grants related.                      In due course, DOE took

a series of steps, some corrective and some punitive.                            Among

other     things,      it     declared       the     Institute        ineligible      to

participate      in     federal       student        aid     programs,    imposed      a

substantial fine, and, after the final audit determination and

program    review      report        were    issued,        instituted    collection

proceedings to recover $1,284,900 in "clock hours" overcharges,

$756,864 in "excess" cash receipts, and $655,554 in unpaid

refunds.

            Asserting that DOE had acted arbitrarily, the Institute

pursued its administrative remedies.                       On January 24, 1997, an

administrative        law    judge     (ALJ)       reversed    the    "clock    hours"

finding but affirmed several other agency determinations (e.g.,

the   "excess    cash"       and     "unpaid       refunds"    findings,       and   the

decision to debar the Institute from participation in federal

student aid programs).              Both sides appealed to the Secretary of

Education.       On October 28, 1997, the Secretary affirmed the

ALJ's decision in part but reinstated the "clock hours" finding

and vacated the debarment decision.

            At   this       point    in    time,    the     Institute    was   without

counsel.    Accordingly, Angel Ruiz Rivera (Ruiz), the Institute's


                                            -4-
founder and president, purporting to act both on the Institute's

behalf and to his own behoof, filed a notice of appeal in this

court, asking that we review the Secretary's determination.                       The

notice of appeal was docketed on March 6, 1998, well within the

six-year period allowed for seeking judicial review of the

Secretary's final orders.             See 28 U.S.C. § 2401(a); see also

Sierra    Club    v.    Slater,    120    F.3d    623,    631    (6th   Cir.    1997)

(holding that six-year limitation period contained in section

2401(a) applies in respect to actions seeking judicial review of

final agency determinations); Wind River Mining Corp. v. United

States,     946        F.2d    710,      713     (9th     Cir.    1991)       (same).

Unfortunately, Ruiz chose the wrong forum; the district courts,

rather than the courts of appeals, have original jurisdiction

over   actions     for    judicial       review    of    the    Secretary's     final

determinations.         See 5 U.S.C. § 703.             At any rate, the matter

lay fallow until July 24, 1998, when we issued an order that

interpreted the notice of appeal as an attempt to "seek review

. . . of a final decision of the Department of Education," and

transferred it to the district court.                     See 28 U.S.C. § 1631

(authorizing inter-court transfer of misfiled pleadings).

            Because      the     transfer      process    was    plagued   by    lost

documents    and       similar    glitches      (attributable      to   the    courts

involved, not to the parties), the case was not docketed in the


                                          -5-
district court until October 29, 1998.               Following yet another

procedural contretemps (the facts of which need not concern us),

the Institute, still unrepresented, filed a document over Ruiz's

signature entitled "Motion for Temporary Restraining Order."

The title was misleading; although not a model of clarity, this

submission, fairly read, sought not only an injunction but also

judicial review of the final decision of the Secretary.1                  Indeed,

the request for relief included a prayer that DOE be commanded

to produce "its entire administrative record [vis-à-vis the

Institute] in order for this appeal of the final agency decision

to be able to commence."         (Emphasis supplied).

            The response to this motion served further to confound

an already muddled situation.        DOE complained that the Institute

had failed to file a complaint, and then shifted the focus to

one of the Institute's requests for injunctive relief.                      This

request    stemmed   from   an   assertion    that    DOE   had    refused      to

furnish another educational institution that wished to lease a

building    from   the   Institute   with    an   assurance       that,    if   it

consummated the lease, it would not inherit the Institute's


    1 By way of illustration, the submission stated in relevant
part that "[the Institute] is the appellant in this appeal of
the U.S.D.E. Secretary's final decision in the administrative
case of that agency against [the Institute]." It then discussed
the "clock hours" finding and complained that the DOE was
"openly violating" those provisions of the Administrative
Procedure Act that afforded the Institute "a right of review."

                                     -6-
Title IV liabilities.     DOE self-servingly characterized the

lease controversy as the "real issue" in the case and contended

that, because it recently had provided suitable assurances to

the prospective lessee, the issue was moot.     DOE then pounced

upon an isolated use of the phrase "in the alternative" in the

Institute's papers — to be precise, the Institute had used the

phrase once in a thirty-six page submission — and argued that

the court could ignore the remainder of the Institute's claims

(including the request for judicial review of the Secretary's

final decision) because those claims had been proffered only "in

the alternative."

         Eschewing oral argument, the district court issued a

terse, three-page order in which it dismissed the action, rather

than merely denying the request for a temporary restraining

order, on the ground that the relief sought by the Institute

already had been obtained.   See Instituto de Educacion Universal

v. United States Dep't of Educ., No. 98-2225 (RLA), order at 2

(D.P.R. Feb. 19, 1998).   In a footnote, the court explained that

"[s]ince the relief sought in the motion for injunctive relief

has been provided by defendants, the other claims, pled in the

alternative by plaintiffs in their motion, are also rendered

MOOT by the dismissal of this action for lack of controversy."

Id. at 3 n.4.


                               -7-
              Apparently    unaware   that    judgment   had   entered,    the

Institute filed a "Motion Urging Jurisdiction" on February 26,

1999.        The contents of this filing clarified any lingering

uncertainty and made it patent that the Institute's primary goal

was     to    obtain    judicial   review    of    the   Secretary's   final

determination.2         The district court treated this motion as a

motion for reconsideration and denied it summarily.

              This     appeal   ensued.      For   argument    purposes,    we

consolidated it with a second appeal (No. 99-1398) involving

essentially the same cast of characters.                  We have elected,

however, to decide the two appeals separately.                  This is the

first of the two opinions.

II.     ANALYSIS

              As a threshold matter, we confront a jurisdictional

barrier.      Because the appellants' previous counsel had withdrawn

from the case, only Ruiz (a non-lawyer) signed the notice of




      2
      The motion stated, inter alia, that "[i]t is our humble
understanding that . . . this is the forum where the final
agency decision . . . ought to be judicially reviewed," and
"begg[ed]" the court to hold a conference "for the coordination
of this judicial review of the final agency decision."      The
Institute then inquired rhetorically: "If this case is not the
appeal of judicial review of the [Secretary's] final decision,
. . . then what is it?" It also asked: "What do we have to do
in order to have this honorable court perform its judicial
review of the final agency decision?"

                                      -8-
appeal.      DOE   argues    that    this   circumstance    deprives   us    of

appellate jurisdiction.

             It is a close question as to whether a notice of appeal

signed by a corporate officer has force with respect to the

corporation.       On reflection, however, we answer that question

affirmatively.       Corporations, unlike natural persons, can act

only through agents.         Moreover, appeal periods are notoriously

brief and, if we were to adopt the Secretary's view, a corporate

litigant whose counsel dies, becomes disabled, or withdraws at

an inopportune time would be powerless to perfect an appeal.

While   it    is   true   that   a   non-lawyer    may     not   represent    a

corporation in ongoing proceedings, see In re Las Colinas Dev.

Corp., 585 F.2d 7, 13 (1st Cir. 1978), we believe that a valid

distinction can be drawn between ongoing legal representation

and the essentially ministerial action involved in the filing of

a notice of appeal.         Thus, we hold that a corporate officer may

sign and file a notice of appeal on behalf of the corporation,

as long as the corporation then promptly retains counsel to take

up the cudgels and prosecute the appeal.                 Accord Bigelow v.

Brady, 179 F.3d 1164, 1165-66 (9th Cir. 1999) ("We fail to see

any compelling reason to refuse to recognize a corporation's

notice of appeal, signed and filed by a corporate officer, so

long as a lawyer promptly thereafter enters a formal appearance


                                      -9-
on      behalf     of     the      corporation     and   undertakes       the

representation."); K.M.A., Inc. v. GMAC, 652 F.2d 398, 399 (5th

Cir. 1981) (similar).           That condition is satisfied here.

            Having cleared this jurisdictional hurdle, we review

the order of dismissal de novo.          See Viqueira v. First Bank, 140

F.3d 12, 16 (1st Cir. 1998).          The district court was, of course,

correct in holding that the lease controversy had become moot.

But we think that the record adequately (though inartfully)

raised the separate issue of judicial review of the Secretary's

final decision.         See 5 U.S.C. § 702 ("A person suffering legal

wrong    because    of    agency    action,   or   adversely   affected    or

aggrieved by agency action within the meaning of a relevant

statute, is entitled to judicial review thereof.")              That issue

is live and unresolved.          Thus, unless the order of dismissal can

be justified on some other ground, it cannot stand.

            DOE proclaims that the Institute's failure to file a

complaint qua complaint sounded the death knell for its suit.

A civil action customarily is instituted by the filing of a

complaint, see Fed. R. Civ. P. 3, and DOE asseverates that the

motion for temporary restraining order is the only document of

record here that could have been construed as a complaint.            That

being so, its thesis runs, the district court had a perfect

right to treat the motion as the Institute's complaint and to


                                      -10-
construe the phrase "in the alternative" as erasing any need to

consider    other       redress      (including         judicial      review     of

administrative     action)      once    the    Institute     had    achieved   the

relief requested in regard to the lease controversy.

           We   are     troubled       by   this   rigid     approach     to   the

construction of pleadings.           The rule that every civil action is

initiated by the filing of a complaint historically has been

relaxed    in   actions       that   originate     elsewhere       and   are   then

transferred to a federal district court (e.g., by removal from

a state court).     See Fed. R. Civ. P. 81(c) (eliminating the need

for repleading unless the transferee court so orders).                    In such

a situation, the district court need not try to fashion a silk

purse from a sow's ear by treating a paper that obviously was

intended   to   serve     a    different      purpose   as   a    complaint,    but

instead may direct the filing of a complaint.                    We believe that,

given the peculiar circumstances of this case, the district

court should have charted such a course before terminating the

entire action (say, by issuing a show-cause order or otherwise

advising the Institute that its case was at risk).                   Its failure

to do so constituted an abuse of discretion.                 This is especially

true because the principal purpose of the proceeding — judicial

review of the final administrative determination — was clearly

stated both in the Institute's original notice of appeal and in


                                       -11-
our    transfer      order.       These    statements,     combined     with    the

repeated references to judicial review that popped up like a

rampant case of impetigo throughout the motion papers, should

have put the lower court on notice that the Institute's main

goal was to seek judicial review of the adverse administrative

decision.3

              We add, moreover, that even assuming, contrary to our

impression, that the district court's decision to construe the

motion for temporary restraining order as the complaint was

within its discretion, its decision to dismiss the entire action

based on a non-lawyer's isolated use of the phrase "in the

alternative" was not.             The Supreme Court has long held that

complaints drafted by non-lawyers are to be construed with some

liberality.         See Hughes v.        Rowe, 449 U.S. 5, 9 (1980) (per

curiam);      Haines      v.   Kerner,    404    U.S.   519,   520   (1972)    (per

curiam); see also Lema v. United States, 987 F.2d 48, 54 n.5

(1st       Cir.   1993)    ("Given   [plaintiff's]       pro   se    status,    the

reference by attachment, though perhaps technically deficient,

was sufficient to alert the court and the government to the



       3
     An additional reason for circumspection is that the
district court accepted (and ruled on) papers filed by Ruiz, a
non-lawyer, on behalf of the Institute. Had the district court
followed standard practice and required the Institute to secure
counsel at that point, the interpretative difficulties that
ensued might well have been avoided.

                                          -12-
specific basis of [plaintiff's] claims.").                    This tenet rests on

the sober reality that, "[p]resumably unskilled in the law, the

pro se litigant is far more prone to making errors in pleading

than       the    person   who    benefits       from   the    representation   of

counsel."         Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)

(en    banc)      (citation      and    internal   quotation     marks   omitted).

Accordingly, the lower court should not have dismissed this

action, on essentially technical grounds, without affording the

Institute some opportunity to replead.4                       See 5 Charles Alan

Wright & Arthur R. Miller,                Federal Practice and Procedure §

1217, at 176-77 (2d ed. 1990).

                 If more were needed — and we doubt that it is — the

aforementioned        motion      for    reconsideration       demonstrated   with

unmistakable clarity the Institute's desire to secure judicial

review of the Secretary's final determination, regardless of

whether the lease controversy was resolved.                    See supra note 2.

Although trial courts have substantial discretion in dealing



       4
      We add two caveats.    First, we note that 28 U.S.C. §
1915(e)(2)(B) does not apply here. Second, we do not mean to
intimate that pro se parties are excused from compliance with
procedural rules (they are not, see Eagle Eye Fishing Corp. v.
United States Dep't of Commerce, 20 F.3d 503, 506 (1st Cir.
1994)), nor to require district courts invariably to notify pro
se parties that their cases are open to dismissal. We hold only
that when, as now, a pleading drafted by a pro se party appears
non-frivolous on its face, the court ought not automatically to
resolve material ambiguities against the pleader.

                                          -13-
with   motions    for       reconsideration,      that    discretion      is   not

unbounded.     See Weinberger v. Great Northern Nekoosa Corp., 925

F.2d 518, 528 (1st Cir. 1991).               Thus, a refusal to reconsider

may be overturned if the record makes manifest "that the court

below committed a clear error of judgment in the conclusion it

reached upon a weighing of the relevant factors."                   Id. at 528-

29.

          So     it    is    here.     The     district    court,   apparently

influenced both by the ambiguity contained in the motion for a

temporary restraining order and by DOE's self-serving argument,

erroneously      concluded      that     the     abatement     of   the    lease

controversy    accorded       the    Institute    all    the   relief   that   it

sought.   The motion for reconsideration, however, made it clear

that the court had misinterpreted an admittedly prolix, hard-to-

read pro se pleading.         Under those circumstances, the interests

of justice required that the court reconsider and modify its

earlier order.        Cf. id. at 529 (holding that, when fee-seekers'

submission on motion for reconsideration corrected deficiencies

in original fee application, "[t]here was insufficient reason to

deny reconsideration merely because the movants had erred the

first time around").




                                       -14-
III.   CONCLUSION

           We need go no further.      For the reasons stated, we

affirm the district court's order with respect to the denial of

the motion for a temporary restraining order, but vacate it

insofar as it purposes to dismiss the entire action.     The matter

is remanded to the district court with instructions that the

Institute be given an opportunity to file a complaint seeking

judicial   review   of   the   Secretary's   final   administrative

determination.



           Affirmed in part and vacated in part.     No costs.




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