Amodio v. Reconstruction Finance Corp., 562.

• Decision Date: 11 October 1951
• Docket Number: No. 562.,562.
• Citation: 191 F.2d 862
• Parties: AMODIO v. RECONSTRUCTION FINANCE CORP.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

191 F.2d 862 (1951)

AMODIO v. RECONSTRUCTION FINANCE CORP.

No. 562.

United States Emergency Court of Appeals.

Submitted August 31, 1951.

Decided October 11, 1951.

Rehearing Denied October 27, 1951.

Paul W. Walter, D. Rusk Haverfield and F. Wilson Chockley, Jr., Cleveland, Ohio, James Perkins Parker, Washington, D. C., and Walter & Haverfield, Cleveland, Ohio, for complainant.

J. Gregory Bruce and Maurice S. Meyer, Attys., Dept. of Justice, Washington, D. C., for respondent.

Before MARIS, Chief Judge, and MAGRUDER, McALLISTER, LINDLEY and LAWS, Judges.

MARIS, Chief Judge.

The complaint in this case was filed on July 11, 1951 by the complainant, a slaughterer of cattle, seeking review by this court of orders of the respondent invalidating claims of the complainant for livestock slaughter subsidy payments under Regulation No. 3 and Revised Regulation No. 3 of Defense Supplies Corporation and its successor, Reconstruction Finance Corporation. The complaint alleges that the complainant under date of December 13, 1950, filed a protest with the respondent and that the respondent informed the complainant on June 11, 1951 that it had denied the protest.

The respondent has moved to dismiss the complaint on the ground, inter alia, that it was not filed within the period required by statute and, therefore, fails to confer jurisdiction upon this court. To this motion the complainant has filed an answer and objections. Both parties have filed briefs in support of their respective contentions which we have fully considered.

The jurisdiction of this court is conferred by Section 204(a) of the Emergency Price Control Act of 1942 as amended 50 U.S.C.A.Appendix § 924(a),¹ the significant language of which follows: "Any person who is aggrieved by the denial or partial denial of his protest may, within thirty days after such denial, file a complaint with the Emergency Court of Appeals * * *." (Emphasis supplied.)

It is conceded that the denial of the complainant's protest was in the form of a letter dated June 7, 1951 from the respondent to the complainant's attorneys which was sent to them by the respondent by registered mail from Washington and received by them in Cleveland on Monday, June 11, 1951.

The respondent contends that the protest was denied, within the meaning of Section 204(a), on June 7th, the date of its letter of denial. If so, the complaint was filed 34 days after the denial of the protest and was clearly out of time. The complainant, on the other hand, urges that the protest may not be regarded as having been denied until the letter of denial was received by him, which was exactly 30 days before the filing of the complaint. Accordingly, he argues, the complaint was in fact filed within the time limited by Section 204(a). It will thus be seen that the basic question for our determination is whether the denial of a protest, within the meaning of Section 204(a), takes place when the respondent takes definitive action to deny it or when notice of that action is subsequently received by the protestant. Our conclusion is that the denial takes place when the action is taken by the agency, not when notice of it is later received by the protestant.

In considering the meaning of the word "denial" as used in Section 204(a) reference must be made to Section 203 of the act which lays down the protest procedure. When that section is examined it becomes clear that "denial" refers to the action by the agency and that the transmitting of notice of denial is contemplated as a separate act. Thus Section 203(a) provides that "* * * in no event more than thirty days after such filing, the Administrator here the Reconstruction Finance Corporation shall either grant or deny such protest in whole or in part, notice such protest for hearing, or provide an opportunity to present further evidence in connection therewith. In the event that the Administrator denies any such protest in whole or in part, he shall inform the protestant of the grounds upon which such decision is based * * *."

See also the provisions of Section 203(d).

When Congress has intended to make the time for judicial review run from the date of receipt of notice of agency action it has had no difficulty in saying so. Thus in Section 5(c) of the Federal Trade Commission Act as amended² it is provided that any person may obtain a review of an order of the Federal Trade Commission by filing a petition in the proper court of appeals "within sixty days from the date of the service of such order * * *." And consider, in this connection, Section 25 of the Bankruptcy Act, as amended,³ subsection a of which provides: "Appeals under this Act to the United States courts of appeals and the United States court of appeals for the District of Columbia shall be taken within thirty days after written notice to the aggrieved party of the entry of the judgment, order or decree complained of, proof of which notice shall be filed within five days after service or, if such notice be not served and filed, then within forty days from such entry."

We find ourselves in agreement with the rule laid down by Judge Parker in Tyson v. United States, 4 Cir. 1935, 76 F.2d 533, 534, that a claim is denied by an administrative official "when he takes action denying it, not when notice of denial is received by the" c...