Charlson Realty Company v. The United States

DAVIS, Judge

(dissenting):

I cannot accept, on either of the different bases put forth by the judges comprising the majority, the holding that plaintiff's claim for a tax refund was timely filed by December 6, 1962. 1 However explained, this decision, in my view, runs counter to the proven facts or to the clear and unambiguous standards set forth in this court’s recent pronounce *451 ments on the presumption of receipt after mailing. Its effect is sharply to reshape the statutory limitations period for tax refund suits — a venture which courts should be loath to undertake.

I do agree with Judge Skelton that the plaintiff’s petition was not filed, within the meaning of the limitations statute, until it was actually delivered to the court; mere mailing, even a timely mailing, would not be enough. See Modern Eng’r Co. v. United States, 113 F.Supp. 685, 687 , 126 Ct.Cl. 136, 139-140 (1953); Schultz v. United States, 132 F.Supp. 953, 955-956 , 132 Ct.Cl. 618, 622 (1955). That is what we have previously held, and what the great majority of other courts hold. I also concur that, under the court’s procedures in effect in 1962, a petition would be timely filed if it were delivered to the mail desk, then located at the main entrance of our old building, within the two-year period. Ibid.

Moreover, I do not disagree that, in the circumstances here, a rebuttable presumption of due delivery and receipt arose from the facts found by the trial commissioner as to the mailing. It is true that the mail clerk from plaintiff’s law firm did not exercise much care. 2 Insufficient postage was provided for the petition to have been sent by registered mail and neither the clerk nor the envelope bearing the petition indicated that other preferential mail service was desired. From its appearance, the package could conceivably have been considered fourth-class matter. The type of service was apparently left to the discretion of the postal employee at the St. Paul Post Office. But even as non-preferential mail, including fourth-class mail, in the ordinary course the petition would have been received for filing within the limitations period, and therefore plaintiff is entitled to the presumption of due delivery and receipt.

My dispute with Judge Skelton is over whether that presumption has been properly rebutted. All agree, in theory, that the presumption is not conclusive and can be overcome, but the rule announced by the plurality opinion is that the rebuttal must be by “direct and positive proof of affirmative facts”, not by “negative evidence as to habit, custom and procedure.” This impossibly high standard echoes arguments previously advanced and unmistakably rejected by the court. In Modern Eng’r Co. v. United States, 113 F.Supp. 685 , 126 Ct.Cl. 136 , (1953), the plaintiff mailed a Lucas Act claim which normally would have arrived at the appropriate bureau of the Navy Department within the limitations period. Solely on the basis of the date of receipt written by the Navy’s employees on the face of the claim, the court found that the letter was delivered after the time-bar had fallen — thus rejecting plaintiff’s argument that a presumption of timely delivery was created which was not rebutted. While the opinion does not indicate whether the court refused to indulge in the presumption at al) or considered it rebutted by the notation of the receipt date on the document, the dismissal of the claim did expressly reaffirm this court’s acceptance of the settled rule that the risk of using the mails must be borne by the plaintiff, and that filing “is not complete until the document is delivered and received.” United States v. Lombardo, 241 U.S. 73, 76 , 36 S.Ct. 508, 509 , 60 L.Ed. 897 (1916). We noted that “[plaintiff’s present predicament [late filing] stems solely from the fact that it did not make any allowance for a failure of the mail to move strictly according to schedule * * *. The occurrence of these conditions, however, is a risk which plaintiff must be held to have assumed when it elected to use the mails as a means of filing its claim.” Modern Eng’r Co. v. United States, supra, *452 113 F.Supp. at 687-688 , 126 Ct.Cl. at 140-141 .

The most recent précis of this court’s attitude toward the filing of petitions by mail is Rosengarten v. United States, 181 F.Supp. 275 , 149 Ct.Cl. 287 (Jones, C. J.), cert. denied, 364 U.S. 822 , 81 S.Ct. 60 , 5 L.Ed.2d 53 (1960). We there set forth the two major rules applicable to this kind of case. First, in limited circumstances and upon receipt of “compelling evidence” of correct preparation, addressing, and mailing, the court will recognize a presumption that a paper sent through the mails was duly delivered and received by the addressee. The evidence “must be strong enough to suggest that it is highly probable that the filing has taken place. Otherwise no presumption will be indulged.” Id., 181 F.Supp. at 277-278 , 149 Ct.Cl. at 291-292 . Second, this presumption can be overcome by appropriate proof. Rebuttal evidence, however, need not be of the same quality or quantity as that required to raise the presumption. On the one hand, mere evidence that there is no record of the date of receipt of a petition is insufficient. At the other pole, it is not necessary for the Government to establish with absolute certainty that the claim was not lost after being received or that no delay occurred between the receipt and the clerk’s stamping of the claim. More specifically, the court in Rosengarten directly and unequivocally stated that the presumption of due delivery and receipt cannot prevail against evidence of the “general and specific procedures” of the office responsible for the receipt of petitions, where such proof indicates that it is improbable that a claim was improperly handled. Id., 181 F.Supp. at 278 , 149 Ct.Cl. at 292 . In Rosengarten , the office was the local unit of the Internal Revenue Service and evidence of the step-by-step treatment of incoming mail was offered to show that it was unlikely that a claim would be misplaced. Today, we are concerned with the administrative procedures established by the clerk of this court and, as the trial commissioner’s findings show, adequate evidence has been received to demonstrate that the likelihood of delay and mishandling of the petition was minimal. The type of proof is the same as in Rosengarten and the applicable legal principle is exactly the same. Yet the plurality opinion today repudiates that principle without acknowledging that it is doing so. In silently jettisoning this aspect of Rosengarten , the court ignores that that decision held, alternatively, that no presumption arose and also “in any event” that even a presumption based on stronger evidence “would not prevail against the evidence offered by the Government as to the general and specific procedures of the local Internal Revenue office.” Ibid.

Schultz v. United States, 132 F.Supp. 953 , 132 Ct.Cl. 618 (1955) (Jones, C. J.), is entirely consistent with the later Rosengarten ruling. Schultz recognized the propriety of receiving evidence of general and specific procedures, employed by our clerk’s office, in rebuttal. Reviewing the procedures then employed, however, the court correctly found that the date of receipt stamped on the petition “does not necessarily indicate * * that plaintiff’s petition arrived on that day [July 16] since it was the custom of the clerk’s office at that time to stamp the Monday [July 16] filing date on all papers that had arrived on the previous Saturday or Sunday.” Id., 132 F.Supp. at 954 , 132 Ct.Cl. at 620 . Such evidence could not rebut the presumption that the petition was properly delivered (within the limitations period) on Saturday, as plaintiff claimed it was. The decision does not even hint that evidence of more exact and reliable procedures would not have been adequate to rebut the presumption of due delivery and receipt.

In the present case, the evidence plainly shows the more exact and reliable procedures, adopted by our clerk, which warrant the finding made by the trial commissioner that the date stamp on plaintiff’s petition represents its actual date of receipt by the court. Not only has the defendant presented uncontradicted evidence of the general and specific *453 procedures employed by the clerk’s office to ensure the proper handling and dating of incoming mail, but the evidence has also described with considerable specificity the movements, observations, and actions of members of the clerk’s office (as they relate to plaintiff’s claim) during the critical days. The trial commissioner has correctly found these detailed facts:

As non-preferential mail, the petition would have been delivered only in the course of one of three ordinary deliveries regularly made to the court each business day. Therefore, if it was delivered within the limitations period (ending on December 6, 1962), it could have arrived no later than approximately 2:00 P.M. on December 6th, the hour of the last regular daily mail delivery.

All mail deliveries made to the court during regular business hours were received at a mail desk located inside the front door, i. e., the main entrance, of the then court building. An employee of the court was regularly assigned to duty at the mail desk from 7:45 A.M. until 5:15 P.M., the normal closing hour for Monday through Friday, except on holidays, and it was his responsibility to accept all mail delivered to the court by the postman. Upon receipt of the mail, the employee would sort it and stamp all envelopes addressed to the clerk. Ordinary letter-size mail was fed into a time-stamp machine which showed the time and date received. Larger packages, such as plaintiff’s, were hand-stamped to show the date of receipt. The hand stamp was adjusted each morning before the first regular mail delivery by the employee on duty at the mail desk. The envelope in question was stamped “Received Dec-7 1962 Office of Clerk”. Mail addressed to the clerk received during regular business hours was delivered to the clerk’s office on the first floor of the building or to the docket section of the clerk’s office on the second floor.

The court maintained personnel in the building 24 hours a day, seven days a week, including holidays, so it was possible to accept mail and papers for filing at all times. Mr. Cole, a long-time employee of the court, was regularly assigned to the mail desk from 7:45 A.M. to 4:15 P.M. each regular working day. After Mr. Cole left for the day, his place at the mail desk was taken by some other court employee who remained there until the court was closed. As just indicated, all ordinary mail deliveries regularly made daily to the court were received prior to the time Mr. Cole went off duty. Mail addressed to the clerk and papers for filing received between the time Mr. Cole left work and 5:15 P.M. were delivered to the clerk or the docket section of the clerk’s office in the same manner as was done while Mr. Cole was on duty. Special delivery mail and papers for filing received after regular business hours were accepted by court employees assigned to night shifts, who noted on such items the time and date of arrival thereof and deposited them on the desk of either the clerk or chief deputy clerk of the court. Mr. Cole was on duty during the entire week of December 3, 1962, and testified that he had not found mail of any kind on his desk when he arrived for work in the morning.

I agree with Commissioner Stone that it is apparent from the foregoing facts that, in order to conclude that the presumption of normal delivery has not been rebutted, we would have to find that the envelope bearing plaintiff’s claim arrived at the court while Mr. Cole was on duty but that he negligently failed to stamp the envelope properly and to route it to the clerk’s office, and that he left the item on his desk when he went off duty; that the night employees similarly failed to note the date on the envelope and remove it from Mr. Cole’s desk and deposit the item on the desk of either the clerk or chief deputy clerk; and that Mr. Cole presented untruthful testimony when he stated that he never had found mail on his desk in the morning upon arriving for work. Like the commissioner, I believe that there simply is no warrant in the record for making such a series of inferences, and that all *454 the evidence in fact points in the other direction.

Indeed, the trial commissioner explicitly found that the testimony of Mr. Cole that no mail was ever on his desk in the morning when he arrived for work was clear and convincing. Accepting this as a fact, it follows that the envelope must either have been delivered to the clerk’s office prior to the morning of December 7, 1962, or that it arrived in one of the regular deliveries on that day because Mr. Cole would have no mail for the clerk’s office before the first regular delivery of the day. But the testimony establishes beyond question, and the plaintiff concedes, that the envelope containing plaintiff’s petition did not arrive in the docket section of the clerk’s office until December 7, 1962; that on the same day the chief deputy clerk first saw the envelope, removed its contents and stamped the petition as filed on that date; and that thereafter, on December 7, 1962, an entry was made in the docket indicating that the petition was filed on that day. The only reasonable conclusion is that the petition arrived at the court on December 7th — a day after the termination of the filing period.

None of the decisions cited in the other opinions, except possibly one part of Arkansas Motor Coaches, Ltd., Inc. v. Commissioner, 198 F.2d 189 (C.A. 8, 1952), indicates that on the present facts the petition should be deemed timely. Crude Oil Corp. v. Commissioner, 161 F.2d 809 (C.A. 10, 1947), reversed a Tax Court finding of untimeliness solely because the latter had made the legal error of ruling that the presumption of delivery after mailing was overborne by the parallel presumption of the correctness of the determination of the Commissioner of Internal Revenue that the filing was late; far from rejecting the Government’s evidence of careful handling of mail, the Court of Appeals returned the case “for decision wholly on the evidence”, giving “no weight to the presumption of correctness of the Commissioner’s finding.” Id. at 810-811 . In Borden Co. v. United States, 134 F. Supp. 387 (D.N.J., 1955), there was no proof, as in this case, of the course of handling of mail within the receiving agency; all that appeared was that the letter was stamped received six months after it was mailed and a long time after it had already been reported missing within the agency (after an inquiry by the claimant had initiated a search). In Central Paper Co. v. Commissioner, 199 F.2d 902 (C.A. 6, 1952), the court, after reviewing the Tax Court’s customary procedures, concluded that as a matter of fact the petition reached a ledge by the lock-box maintained by the Tax Court at the local post office within the limitations period, and that such delivery to the ledge was sufficient even though the paper did not reach the clerk’s office until after the period had expired; the issue of whether or not delivery to or near the lock-box constitutes a “filing” is of course not present in our case.

In Arkansas Motor Coaches, Ltd., Inc. v. Commissioner, supra, 198 F.2d 189 , the taxpayer, who “meticulously followed the sanctioned procedure and was guilty of no negligence”, mailed his petition so that it would ordinarily have been delivered and filed with the court within the proper time. An entry on the court’s docket, but not on the petition itself, indicated that it was received after the statutory period. The majority of the panel assumed that the delay was “either the fault of the employees of the Post Office or the employees of the Clerk’s office,” and concluded that the taxpayer should not be penalized for the negligence of government employees. Id. at 192-193. This view that the negligence of postal employees will excuse the late filing of a petition is contrary to the Supreme Court’s decision in United States v. Lombardo, supra, 241 U.S. at 76-79 , 36 S.Ct. 508 , 60 L.Ed. 897 , as well as numerous lower court decisions. Judge Johnsen’s concurring opinion in Arkansas Motor Coaches rejected it as “fraught with implications”. 198 F.2d at 193 . Central Paper Co. v. Commissioner, supra, 199 F.2d at 904 , expressly rejected the position that late filing of a petition *455 is excused if the delay is caused by matters over which the plaintiff has no control. I, too, find the Eighth Circuit’s statement insupportable in law and unsatisfactory in practice. In any event it is inapplicable here. 3

To the extent that the Eighth Circuit’s decision in Arkansas Motor Coaches rested on the conduct of court employees the case is clearly distinguishable. As Judge Johnsen observed in his concurring opinion, the docket entry “will not necessarily represent the date of legal receiving, if the receipt is one which does not automatically channelize itself into the court’s mailing room routine processes * * “[I]t must be possible for us to find, from direct testimony or on circumstances, that there had been some breakdown in the processes of that machinery, which was responsible for the taxpayer’s petition not having been formally filed and docketed” during the limitations period. 198 F.2d at 194 . The facts in Arkansas Motor Coaches, supported such a finding. Convincing testimony in our case requires the contrary result.

Not only is dismissal of this petition, as untimely filed, strongly suggested by our own previous decisions, compelled by the specific proof in this case, and harmonious with the general course of judicial rulings, but it is also supported by independent considerations. Use of a rebuttable presumption of due delivery and receipt, after a claim has been properly mailed, is intended to relieve a petitioner from the task of presenting evidence which is not readily available. Its effect should be limited to shifting the burden to the Government of going forward with evidence of nonreceipt or late receipt. We should not, however, relieve one party of a difficult burden by imposing an almost impossible one on the other. The plurality’s current view that the presumption of due delivery can be rebuttéd only by “direct and positive proof of affirmative facts” has that undesirable effect.

In view of the specific, detailed, and cumulative proof offered here — which Judge Skelton stigmatizes as ineffective “negative evidence” — the plurality must mean by “direct and positive proof” evidence bearing directly and specifically on the single piece of mail in dispute. This is a very heavy burden, hardly one capable of being met. We cannot demand or expect a government clerk to be able to identify the trail of each of the many petitions or documents which initiate or affect judicial proceedings. To impose such a requirement would, in cases like the present, operate to accelerate the moment of filing from delivery toward the time of mailing. Whether that result comes by explicit judicial ruling or through the use of an almost conclusive presumption, it remains contrary to the established rule that “[fjiling * * * is not complete until the document is delivered and received. ‘Shall file’ means to deliver to the office and not send through the United States mails. * * * A paper is filed when it is delivered to the proper official and by him received and filed. * * * ” United States v. Lombardo, supra, 241 U.S. at 76 , 36 S.Ct. at 509 . This standard has been widely followed by other federal tribunals and should not now be avoided by this court. 4 See, e. g., Evans v. Jones, 366 F.2d 772 (C.A. 4, 1966); Phinney v. Bank of the Southwest Nat’l Ass’n, 335 F.2d 266 , 268 (C.A. 5, 1964); Ward v. Atlantic Coast Line R. R., 265 F.2d 75, 80-81 (C.A. 5, 1959), rev’d on other grounds, 362 U.S. 396 , 80 S.Ct. 789 , 4 L.Ed.2d 820 (1960) (per curiam); Di Prospero v. Commis *456 sioner, 176 F.2d 76 (C.A. 9, 1949); Stebbins’ Estate v. Helvering, 74 App.D.C. 21 , 121 F.2d 892, 893-894 (1941); Poynor v. Commissioner, 81 F.2d 521, 522 (C.A. 5, 1936). Most lawyers know of cases which have failed because a petition or complaint reached the tribunal, through the mails, one or two days late. Many a certiorari petition, for instance, has been denied by the Supreme Court for this reason.

Of course, there is often a feeling of discomfort when a party thus fails to obtain a ruling on the merits. But a court’s power to ease the effects of a limitations period established by Congress for suits against the sovereign is relatively narrow. See Soriano v. United States, 352 U.S. 270 , 77 S.Ct. 269 , 1 L.Ed. 2d 306 (1957). Time-bars for tax refunds “are established to cut off rights, justifiable or not, that might otherwise be asserted and they must be strictly adhered to by the judiciary.” Kavanagh v. Noble, 332 U.S. 535, 539 , 68 S.Ct. 235, 237 , 92 L.Ed. 150 (1947); see Rosenman v. United States, 323 U.S. 658, 661 , 65 S.Ct. 536 , 89 L.Ed. 535 (1945); Tolerton & Warfield Co. v. United States, 285 F.2d 124, 125, 126 , 152 Ct.Cl. 402, 404, 406 (1961); Melchior v. United States, 145 F.Supp. 193, 194 , 136 Ct.Cl. 483 (1956). The Supreme Court “has consistently ruled that no federal judge or court possesses the power to extend the time for appeal beyond the statutory period by any form of judicial action * * Hill v. Hawes, 320 U.S. 520, 525 , 64 S.Ct. 334, 336 , 88 L.Ed. 283 (1944) (Stone, C. J., dissenting). Though we might, if we were legislators, prefer to change some of the existing statutory requirements, we cannot as judges absolve a petitioner from the consequences of his failure to pursue his existing remedies in a timely manner. See Evans v. Jones, supra, 366 F.2d at 773 ; Chambers v. Lucas, 59 App.D.C. 327 , 41 F.2d 299 (1930).

Relief from these rigors of limitations, where it seems to run unfairly, should originate in Congress rather than the courts. The legislative branch has been cognizant of this responsibility in the tax field. In 1954 Congress amended the existing rule by providing that most documents to be filed with the Internal Revenue Service and the Tax Court shall be deemed filed on the date of the postmark. The statute specifically added, however, that “This section shall not apply with respect to the filing of a document in any court other than the Tax Court.” Int.Rev.Code of 1954, § 7502 (d). Explicit legislative limitation of this new rule provides a further reason why we should not follow the course of the majority. Similarly, Congress has provided that a party has thirty days to appeal from a judgment of a district court to a court of appeals but that the time for filing the notice of appeal may be extended upon a showing of “excusable neglect.” Fed.R.Civ.P. 73(a), 28 U.S.C. § 2107 (1964). 5 But Congress has not changed the rule, or made it more lenient, for refund suits or other claims commenced in this court. We should continue to apply to the facts of this case the standards established by our prior decisions and the general judicial practice, and leave modifications to the legislature.

LARAMORE and DURFEE, JJ., join in the foregoing dissenting opinion.

. I do not reach the other issue of whether the second refund claim was, in reality, separate from the first one.

. In this respect, I differ from Judge Skelton’s conclusion that “[t]he plaintiff did everything that could be reasonably expected of it in the mailing of its petition to this court” and “[t]here is no showing of negligence on its part.” The trial commissioner’s detailed findings show the • contrary, and there is no reason to reject his findings, which are based on testimony which he heard personally and evaluated carefully.

. In the present case there is an express finding that there was no negligence by employees of the Post Office Department.

. Judge Nichols’ opinion would reject our own prior decisions and the holdings of the other courts and go even further than the majority in the Arkansas Motor Coaches case since his view does not rest on any negligence of the post office’s or the court’s employees. I think that such overruling would also contradict the Supreme Court’s decision in United States v. Lombardo, supra. The same is true of Judge Jones’ separate opinion, as I understand it.

. Recently the scope of “excusable neglect” was expanded. See H.R.Doc. No. 391, 89th Cong., 2d Sess. (Feb. 28,1966); Evans v. Jones, supra, 366 F.2d at 773 .