Tyler v. Donovan, Court No. 81-6-00712.

• Decision Date: 11 March 1982
• Docket Number: Court No. 81-6-00712.
• Parties: Jack TYLER, Vice President, Uaw 1660 Itt Hancock Industries, Plaintiff, v. Raymond J. DONOVAN, United States Secretary of Labor, Defendant.
• Court: U.S. Court of International Trade

535 F. Supp. 691

3 CIT 62

Jack TYLER, Vice President, Uaw 1660 Itt Hancock Industries, Plaintiff, v. Raymond J. DONOVAN, United States Secretary of Labor, Defendant.

Court No. 81-6-00712.

United States Court of International Trade.

March 11, 1982.

Jack Tyler, pro se.

J. Paul McGrath, Asst. Atty. Gen., David M. Cohen, Director, Commercial Litigation Branch, Washington, D. C. (Francis J. Sailer, Washington, D. C., on motion), for defendant.

RE, Chief Judge:

In this action for worker adjustment assistance under the Trade Act of 1974, 19 U.S.C. § 2101 et seq. (1976), defendant moves to dismiss plaintiff's complaint for failure to commence the action within the prescribed sixty (60) day statute of limitations.

On May 15, 1980, plaintiff filed a petition with the Secretary of Labor for certification of eligibility for adjustment assistance benefits on behalf of the present and former employees of International Telephone & Telegraph Corporation, ITT Hancock Industries Division, Elsie, Michigan. Upon consideration of the petition, the Secretary determined that plaintiff was ineligible to apply for worker adjustment assistance, and, on January 27, 1981, published his determination in 46 Fed.Reg. 8805. Thereafter, by undated letter, postmarked February 28, 1981, plaintiff applied for administrative reconsideration of the Secretary's negative determination.

By letter dated March 12, 1981, the Secretary, through his designee, Marvin M. Fooks, Director, Office of Trade Adjustment Assistance, informed plaintiff that his application for reconsideration had been dismissed "for failure to allege sufficient grounds upon which a determination regarding the application may be made." The letter stated that the dismissal constituted a final determination for purposes of judicial review. It further informed plaintiff that he had sixty days from the date of receipt of the letter to file an action contesting the Secretary's negative determination "with the U. S. Court of International Trade in New York City (formerly the U. S. Customs Court)."

Plaintiff, acting pro se, endeavored to commence an action in this court. He mailed an undated letter in an envelope postmarked April 27, 1981, addressed as follows:

"U. S. Court of International Trade New York City New York 10001."

The Postal Service returned the letter to the plaintiff with the notation:

"RETURNED TO WRITER INSUFFICIENT ADDRESS NEW YORK, NEW YORK."

Plaintiff made a second effort to commence this action. Enclosing the first letter and envelope, he mailed a second undated letter in an envelope, postmarked May 27, 1981, addressed as follows:

"Customs Court 1st Federal Plaza New York City, New York 10001."

The Office of the Clerk of this court, by letter dated June 3, 1981, informed plaintiff that his first undated letter fulfilled the requirements of a summons and complaint for the commencement of a civil action to review the Secretary of Labor's final determination. That letter also stated that the filing of the summons and complaint was deemed made on June 2, 1981, the date on which the court received plaintiff's second letter.

Subsequently, the defendant filed this motion to dismiss. Defendant maintains that the sixty-day statute of limitations, as prescribed in section 284(a) of the Trade Act of 1974, 19 U.S.C. § 2395(a), as added by the Customs Courts Act of 1980, Pub. L.No. 96-417, 94 Stat. 1727, 1746, began to run on March 12, 1981, the date of the mailing of the Secretary's denial of plaintiff's request for administrative reconsideration, and ran through May 11, 1981. Since plaintiff did not commence the present action until June 2, 1981, some eighty-two (82) days after the mailing of the March 12 letter, defendant contends that this court lacks jurisdiction to entertain plaintiff's request for judicial review.

The question presented is whether the statute of limitations commenced to run on March 12, 1981, the date of the mailing of the Secretary's letter dismissing plaintiff's application for administrative reconsideration, as contended by defendant, or whether further administrative action was required in order for the commencement of the statutory sixty-day period.

Citing Microwave Communications, Inc. v. F. C. C., 515 F.2d 385, 389 (D.C.Cir.1974), Fed.R.App.P. 26(b), and Pennsylvania v. I. C. C., 590 F.2d 1187, 1193 (D.C.Cir.1978), defendant contends that the sixty-day statute of limitations of section 284(a) for the filing of this action is "jurisdictional and unalterable." Defendant further contends that judicial review is precluded when an action is instituted beyond the statutorily prescribed period. Id. See also Selco Supply Co. v. U. S. Environmental Protection Agency, 632 F.2d 863 (10th Cir. 1980). Had the statute of limitations commenced to run on March 12, 1981, as contended by defendant, judicial review would be precluded. A careful review of the administrative record, however, reveals that the Secretary of Labor failed to comply with the applicable statute and regulations for the commencement of the statutory sixty-day period.

It is firmly established that an executive agency is bound to respect a valid regulation which, while in effect, "has the force of law." United States v. Nixon, 418 U.S. 683, 695, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974). This is particularly true when the rights of individuals are affected. Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct. 968, 3 L.Ed.2d 1012 (1959).

Pursuant to 29 C.F.R. § 90.18(a) (1980), plaintiff filed an application for reconsideration of the Secretary's negative certification determination of January 27, 1981. The Secretary's letter of March 12, 1981 informed plaintiff that a negative determination was made on his application for reconsideration, and that the determination was final for purposes of judicial review.

Section 223(c) of the Trade Act of 1974, 19 U.S.C. § 2273(c) (1976), expressly requires that the Secretary of Labor, upon reaching a final determination on a petition for certification of eligibility, "shall promptly publish a summary of the determination in the Federal Register together with his reasons for making such determination." In furtherance of that duty, 29 C.F.R. § 90.18(e) of Labor's published regulations¹ specifically requires:

"Upon reaching a determination that an application for reconsideration does not meet the requirements of paragraph (c) of this section, the certifying officer shall issue a negative determination * * and shall promptly publish in the FEDERAL REGISTER a summary of the determination, including the reasons therefor. Such summary shall constitute a Negative Determination Regarding Application for Reconsideration. A negative determination issued pursuant to this paragraph shall constitute a final determination for purposes of judicial review * * *." (Emphasis added.)

The record in this case, however, fails to disclose any publication of the negative determination of the application for reconsideration. Hence, the Secretary has failed to comply with the publication requirements of the statute and regulations.

An action challenging the Secretary's final determination must be commenced pursuant to section 284(a) of the Trade Act of 1974, 19 U.S.C. § 2395(a) (1976), as added by the Customs Courts Act of 1980, "within sixty days after notice of such determination." Not only do the regulations (29 C.F.R. §§ 90.18(e) and 90.19(a) (1980)) require publication in the Federal Register, but the language of 29 C.F.R. § 90.19(a) makes it clear that the date of publication commences the running of the sixty-day statute of limitations. 29 C.F.R. § 90.19(a) explicitly states that the aggrieved party must seek judicial recourse "in the appropriate court² within sixty (60) days after the notice of determination has been published in the Federal Register." (Emphasis added.)

The identical question was considered by the Court of Appeals for the Third Circuit in Timex Components, Inc., Former Employees v. Marshall, 672 F.2d 904 (3d Cir. 1981) (per curiam). In the Timex Components case, the court rejected the contention of both the petitioners and the Labor Department that the...