U.S. v. Meyer

• Decision Date: 14 January 1987
• Docket Number: No. 86-1731,86-1731
• Citation: 808 F.2d 912
• Parties: UNITED STATES of America, Plaintiff, Appellant, v. Robert E. MEYER, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 912

808 F.2d 912

UNITED STATES of America, Plaintiff, Appellant, v. Robert E. MEYER, Defendant, Appellee.

No. 86-1731.

United States Court of Appeals, First Circuit.

Argued Dec. 1, 1986.

Decided Jan. 14, 1987.

Robert V. Zener with whom John F. Cordes, Appellate Staff, Civ. Div., Dept. of Justice, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., and William F. Weld, U.S. Atty., Boston, Mass., were on brief, for appellant.

Robert E. Meyer, pro se.

Before CAMPBELL, Chief Judge, COFFIN and SELYA, Circuit Judges.

SELYA, Circuit Judge.

The sole issue to be decided in this appeal is whether the five-year statute of limitations for enforcement of civil penalties, 28 U.S.C. Sec. 2462, as applied to sanctions imposed under the Export Administration Act's antiboycott regulations, is triggered on the date the predicate violation occurs or on the date the penalty is subsequently imposed. Reluctant though we may be to create a split among the circuits, we adopt the latter view and therefore reverse the district court.

I.

The pertinent facts can be catalogued with dispatch. During a period of time commencing on or about January 18, 1978 and concluding on or about September 21, 1978, Robert E. Meyer, appellee herein, allegedly disobeyed a series of antiboycott regulations promulgated under the Export Administration Act (EAA), currently codified at 50 U.S.C.App. Secs. 2401-2420 (1982), as amended by the Export Administration Amendments Act, Pub.L. No. 99-64, 99 Stat. 120 (July 12, 1985). The government charged that Meyer flouted 15 C.F.R. Sec. 369.2(d)(1) by furnishing boycott information to Saudi Arabia on three separate occasions, and ran afoul of 15 C.F.R. Sec. 369.4 by failing to report receipt of a request for boycott-related information to the United States Department of Commerce (Department). Each of these boycotts supposedly occurred in connection with Meyer's herculean efforts as legal counsel for Zemco Corporation vis-a-vis the desired registration of three of the company's trademarks in Saudi Arabia.

The mills of the bureaucrats grind slow, if exceedingly fine. It was not until July 2, 1981, that the Department initiated administrative enforcement proceedings against Meyer by issuing a "charging letter" pursuant to 15 C.F.R. Sec. 388.4(a). On July 22, 1983, after two years of skirmishing, the administrative law judge (ALJ) assigned to the matter rendered an initial decision. The ALJ found Meyer to have transgressed the EAA and its implementing regulations; pursuant to 15 C.F.R. Sec. 387.1(b)(3), he imposed a civil penalty of $5,000. Meyer's further intra-agency protests were bootless. On August 10, 1984, the Department affirmed the decision of the ALJ in all respects.

Little daunted, Meyer refused to pay the sanction. So, on December 31, 1985--more than five years after the infractions themselves occurred, but within five years of the assessment of the penalty--the Department brought an enforcement suit in the United States District Court for the District of Massachusetts. See 50 U.S.C.App. Sec. 2410(f). The district court, however, dismissed the action as barred by the five-year limitations period embodied in 28 U.S.C. Sec. 2462, relying upon the Fifth Circuit's opinion in United States v. Core Laboratories, Inc., 759 F.2d 480 (5th Cir.1985).

The Core panel held that the five-year statute of limitations, 28 U.S.C. Sec. 2462, which is concededly applicable to recovery of civil penalties under the EAA, runs from the date of the predicate violation, rather than from the date of administrative assessment of the sanction. ¹ Yet, with respect, we find the Fifth Circuit's reasoning--the core of Core, as it were--to be unconvincing. A critical examination of 28 U.S.C. Sec. 2462, its relationship to the penalty assessment and enforcement mechanisms of the EAA, the relevant caselaw, and the broader policies which undergird statutes of limitations, leads us to an opposite result.

II.

We begin with an overview of the pertinent statutes. The EAA prescribes no limit on the time within which either an administrative claim to impose a civil penalty or a suit to enforce such a penalty must be brought. Consequently, the litigants agree that we must look to 28 U.S.C. Sec. 2462 for the applicable statute of limitations. Section 2462 states in relevant part:

[A]n action, suit, or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued....

28 U.S.C. Sec. 2462.

Both parties concede that, as applied to the EAA, this statute at least requires that any administrative action aimed at imposing a civil penalty must be brought within five years of the alleged violation. ² Although the analytical underpinnings of this interpretation seem somewhat wobbly, the view is eminently reasonable as a matter of policy and is supported by two distinct pronouncements of subsequent legislative committees that chose to comment on the matter. See post at 915-16 & n. 3. Any possible question along these lines need not further detain the court, however, as the record in this case reveals that the Department initiated administrative proceedings against Meyer well within this time frame. What remains for resolution is whether Sec. 2462 affords an additional five year period following final administrative assessment of a civil penalty during which the government may sue to enforce the sanction. If the statute so provides, then the government's action to inflict the $5,000 penalty upon Meyer, brought within 17 months of the date when the final administrative pronouncement issued, was timely filed. We hold that 28 U.S.C. Sec. 2462 is designed to operate in exactly that fashion.

Under the precise phraseology of Sec. 2462 itself, the limitations period on the government's enforcement action began to run on the "date when the claim first accrued." Although there is no dearth of authority construing the term, the standard definition of the concept of accrual is to the effect that "[a] cause of action 'accrues' when a suit may be maintained thereon." Black's Law Dictionary 19 (5th ed. 1979). See Mack Trucks, Inc. v. Bendix Westinghouse Automotive Air Brake Co., 372 F.2d 18, 20 (3d Cir.1966) (a cause of action "accrues" only with the occurrence of the last significant event necessary to make the claim suable), cert. denied, 387 U.S. 930, 87 S.Ct. 2053, 18 L.Ed.2d 992 (1967); cf. United States v. Hughes House Nursing Home, Inc., 710 F.2d 891 (1st Cir.1983) (in Medicare reimbursement setting, government's cause of action to recover overpayment "accrues" and statute of limitations starts to run only when final audit has occurred and retroactive administrative adjustments have been made). In the case at bar, it is abundantly clear that no suit to recover a civil penalty can be mounted under the EAA unless and until the penalty has first been assessed administratively. In this vein, the law declares in the plainest of terms that "in the event of the failure of any person to pay a penalty imposed pursuant to [the antiboycott provisions of the EAA], a civil action for the recovery thereof may ... be brought in the name of the United States." 50 U.S.C.App. Sec. 2410(f). This language alone strongly suggests--indeed, requires--that the Department refrain from initiating a civil suit until the appropriate administrative authority has imposed a sanction which the respondent has thereafter refused to satisfy.

Such a view of the EAA universe likewise accords with the obvious proposition that a claim for "enforcement" of an administrative penalty cannot possibly "accrue" until there is a penalty to be enforced. Cf. Hughes House Nursing Home, 710 F.2d at 894 (Nothing in Medicare law "gives the government any right to collect any additional overpayment ... before a final audit, formally determining its existence, takes place."). The use of the word "enforcement" in 28 U.S.C. Sec. 2462 is not without significance; the noun by definition ("compulsion ... forcible urging ... the compelling of the fulfillment," Webster's Third New International Dictionary 751 (1981)) presupposes the existence of an actual penalty to be enforced. And, lest any residue of doubt remain, the EAA further states that "[e]xcept as provided in this subsection and in subsection (d) [relating to payment of penalties for export license violations], no such liability shall be asserted, claimed, or recovered upon by the United States in any way unless it has previously been reduced to judgment." 50 U.S.C.App. Sec. 2410(f). Therefore, inasmuch as the government was effectively prohibited from commencing suit in the district court until a penalty had been assessed and reduced to an (unsatisfied) administrative judgment, it would be illogical to say that its claim for enforcement "accrued" prior to that point in time.

We recognize that Core, 759 F.2d at 482, placed considerable emphasis on various excerpts from the legislative history of the 1965 amendments to the EAA. (These amendments, of course, were the very vehicle by which civil penalty provisions were added to the Act.) The Senate Report noted:

The bill does not prescribe any period following an offense within which the civil penalty must be imposed. It is intended that the general 5-year limitation imposed by section 2462 of title 28 shall govern. Under that section, the time is reckoned from the commission of the act giving rise to the liability, and not from the time of imposition of the penalty, and it is applicable to administrative as well as judicial proceedings.

S.Rep. No. 363, 89th Cong., 1st Sess. 7, reprinted in 1965 U.S.Code Cong. & Adm.News 1826, 1832. Substantially the same statement appeared in the House report. H.R.Rep. No. 434, 89th Cong., 1st Sess. 5 (1965).

Where, as here, the language of a statute seems clear and unambiguous, courts should be extremely hesitant to...