
    Thomas T. CARTER, Plaintiff, v. The UNITED STATES of America, Defendant.
    No. 450-88T.
    United States Claims Court.
    Oct. 13, 1988.
    Hugh J. Ritchie, Los Angeles, Cal., for plaintiff.
    Stuart J. Bassin, Washington, D.C., with whom was Asst. Atty. Gen., William S. Rose, Jr., for defendant.
   ORDER

NAPIER, Judge.

Plaintiff’s complaint, filed in the Clerk’s office on August 1, 1988, is founded upon 28 U.S.C. § 1346(a)(1) invoking this Court’s jurisdiction over income tax refund matters. It is not necessary to recite the facts alleged in the complaint to dispose of plaintiff’s pending motion, entitled “Motion For Corrective Order Re Filing Date.”

In his motion filed on September 6, 1988, plaintiff has moved to change the date of filing from August 1, 1988, the date determined under Rule 3(b)(1), RUSCC, to July 29, 1988, the last day allowed by the statute of limitations for filing the complaint.

In opposition to plaintiff’s motion, defendant filed a brief and supporting affidavit on September 19, 1988. Plaintiff did not file a reply, which was due on October 3, 1988.

After considering plaintiff’s motion, defendant’s brief in opposition, applicable Court rules, and relevant case law, the Court must deny plaintiff’s motion for a corrective order and dismiss the action.

Discussion

Rule 3(b)(1) provides “the records of the clerk, including the date stamped on the complaint, shall be final and conclusive evidence of the date on which a complaint was filed, in the absence of the filing and allowance of a motion under subdivision (b)(2) of this rule.”

Subdivision (b)(2) of Rule 3 provides as follows:

(2)(A) A party plaintiff who contends that the effective date of his complaint should properly be a date earlier than that shown by the clerk’s records may seek a corrective order from the court by means of a motion.
(2)(B) Upon motion of a party plaintiff supported by a proper showing that the clerk’s records are factually incorrect, the court will correct the records by order.
(2)(C) In a situation where a complaint is stamped by the clerk after the last date allowed by a statute of limitations for the filing of the complaint, if the complaint was received by the clerk through the mail, it may, by order of the court, upon motion of the party plaintiff, be deemed to have been filed on the last date allowed if there is a proper showing (i) that the complaint was sent by registered or certified mail, properly addressed to the clerk of the court at 717 Madison Place, N.W., Washington, D.C. 20005, and with return receipt requested; (ii) that it was deposited in the mail sufficiently in advance of the last date allowed for filing to provide for receipt by the clerk on or before such date in the ordinary course of the mail; and (iii) that the party plaintiff as sender exercised no control over the mailing between the deposit of the complaint in the mail and its delivery.

Since plaintiff’s motion is predicated upon Rule 3(b)(2)(C), it must satisfy the three requirements of the Rule in order to prevail.

First, plaintiff must make a proper showing that the complaint was sent by registered or certified mail, properly addressed to the Clerk of the Court at 717 Madison Place, N.W., Washington, D.C. 20005 and with return receipt requested. By affidavit dated August 30, 1988, and attached to the motion, plaintiff’s attorney, Hugh J. Rit-chie, gave the following declaration:

1. That the Complaint of Thomas T. Carter in the above-entitled matter was sent in the United States mail on July 27, 1988, by certified mail, properly addressed to Clerk of Court, United States Claims Court, 717 Madison Place N.W., Washington, DC 20005, with return receipt requested.
2. That the mailing of the Complaint on July 27, 1988, allowed a minimum of two days for the Complaint to reach the Court which was sufficiently in advance of July 29, 1988, the last date for filing the complaint, to allow for receipt by the clerk on or before such date. July 29th was a Friday. The Complaint was stamped on Monday. Declarant alleges that in the normal course of the U.S. Mail the Complaint should have been received by July 29th.
3. That the copies of the Receipt for Certified Mail and Return Receipt attached hereto as Exhibit 2 are true copies of the originals.
I declare under penalty of perjury that the foregoing is true and correct.

Dated: August 30, 1988

/s/ HUGH J. RITCHIE

The Ritchie declaration satisfies all of the elements of the first prerequisite set forth in Rule 3(b)(2)(C)(i). Furthermore, there is no evidence that plaintiff has not satisfied the third prerequisite in Rule 3(b)(2)(C)(iii). It was not referred to in the Ritchie declaration and defendant has not challenged plaintiff’s satisfaction of the third prerequisite.

It is the second requirement for which plaintiff is unable to make a proper showing and upon which this ruling turns. Rule 3 (b) (2) (C) (ii) requires the complaint be deposited in the mail sufficiently in advance of the last date allowed for filing to provide for receipt by the clerk on or before such date in the ordinary course of the mail. Thus, under the rule, plaintiff must establish that a letter mailed from Commerce, California, during July 1988, would reach its destination in Washington, D.C., within two (2) days in the ordinary course of the mail. Plaintiffs only evidence that such a letter would be delivered within two (2) days in the ordinary course of the mail is the unsupported declaration of counsel, Mr. Ritchie, while defendant submitted the affidavit of Bryan A. Bailey, a United States Postal Service employee responsible for compiling statistics regarding postal delivery. The Bailey affidavit states that a letter mailed from Los Angeles, California, during July 1988 would not be delivered within two (2) days in the ordinary course of the mail. His affidavit indicates that only 7 percent of the metered mail and 45 percent of the stamped mail sent from Los Angeles, California, to Washington, D.C., is delivered within two (2) days; that the published delivery standard for ordinary delivery of such mail is three (3) days. Most importantly, he stated that the use of certified mail (as is the case here), would serve to further delay ordinary delivery by at least one more day. See Appendix A, Affidavit of Bryan A. Bailey.

A proper showing under Rule 3(b)(2)(C) must be supported by more than an unsubstantiated declaration of plaintiffs counsel, as here, where the Court has before it opposition to the motion, buttressed by the affidavit of a Postal Service employee containing official statistics which are contrary to the unsubstantiated contentions of plaintiff’s counsel.

Rule 3(b) represents the Court’s adoption of a rule to conform to the standard set forth in Charlson Realty Co. v. United States, 181 Ct. Cl. 262, 384 F.2d 434 (1967), reh’g denied (1968).

In Charlson, defendant moved for summary judgment dismissing plaintiffs petition to recover taxes alleged to have been erroneously assessed and collected based upon the fact that the claim was not filed by the taxpayer within the period set forth by the applicable statute of limitations. The Court held that the suit was begun by the taxpayer within the applicable period and that proof that plaintiff’s petition was properly sealed, stamped, and addressed to the Clerk of the Court of Claims in Washington, D.C., and deposited in the mail on November 30, 1962, in St. Paul, Minnesota, created a rebuttal presumption that the petition reached the Court in the ordinary course of the mail which, in this case, would have been no later than December 5, 1962. Thus, the presumption was not rebutted by defendant’s proof of the Court’s date stamp on the envelope indicating receipt of the petition in the mail on December 7, 1962, one (1) day late.

In Charlson, the Court had testimony before it that the normal time for transportation of first-class mail from St. Paul to Washington, according to an official of the Post Office Department, was two (2) days for first-class mail and one (1) day longer for fourth-class mail. The Court found that plaintiff’s petition should have arrived at its destination no later than December 3, and, therefore, should have been docketed before the close of business December 6.

The facts of this case do not support such a holding as found in Charlson. The facts are quite the opposite of those in Charlson. In this case, plaintiff has presented no evidence from anyone with expertise in postal delivery standards. Defendant, on the other hand, has produced an exhaustive affidavit consisting of technical information showing that there was less than a 50 percent chance, whether by metered or stamped mail, that the complaint would reach the Court within the necessary time. Defendant has shown that certified mail normally takes three (3) days to reach its destination.

Charlson set forth the standard now embodied in Rule 3(b)(2) which relaxed an earlier strict standard by the creation of the rebuttable presumption found in Rule 3(b)(2)(C). Defendant has clearly rebutted any presumption that the complaint was deposited in the mail sufficiently in advance of July 29,1988, the date upon which the statute of limitations ran.

The Court is not unmindful of the harsh result in this instance. Nevertheless, the words of Judge Oscar Davis in his Charl-son dissent are instructive:

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, 537, 89 L.Ed. 535] (1945); Tolerton & Warfield Co. v. United States, 152 Ct. Cl. 402, 404, 406, 285 F.2d 124, 125, 126 (1961); Melchior v. United States, 136 Ct. Cl. 483, 145 F.Supp. 193, 194 (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 [772] at 773 [ (4th Cir.1966) ]; Chambers v. Lucas, 41 F.2d 299 (C.A.D.C., 1930).

Charlson, 181 Ct. Cl. at 297, 298, 384 F.2d 434.

Rule 12(h)(3) RUSCC provides:

Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

Upon representations made by plaintiff in his motion, July 29, 1988, was the last date allowed by the statute of limitations for filing the complaint. The complaint was filed on August 1, 1988, clearly outside the limitations period. No motion to dismiss has been filed by the Government. Nevertheless, even if the parties remain silent (in this instance, the Government cited the Court to Rule 12(h)(3) in its opposing brief), a trial court “ * * * is obliged to notice on its own motion the want of its own jurisdiction * * Hambsch v. United States, 857 F.2d 763, 765 (Fed.Cir.1988); quoting 13 C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3522 at 69-70 (2d ed. 1984).

The Court, sua sponte and pursuant to Rule 12(h)(3) RUSCC, must, therefore, direct the Clerk to dismiss the action for lack of subject matter jurisdiction.

Accordingly, plaintiffs motion to change the date of filing is denied and the Clerk is directed to dismiss the complaint. No costs.

IT IS SO ORDERED.

APPENDIX A

AFFIDAVIT OF BRYAN A. BAILEY

Bryan A. Bailey, being duly sworn, deposes and states as follows

1. I am currently employed as the Manager of the Service Statistics Branch of the United States Postal Service (USPS).

2. The Service Statistics Branch of the USPS is responsible for compiling statistics regarding the time required for mail delivery within the postal system.

3. Those statistics, which separately report data for metered and stamped mail, report the percentage of letters mailed from a particular city actually delivered in another city within a specified number of days.

4. Attachment 1 is an excerpt from a report summarizing the statistics for metered mail delivery for the period from July 2 through July 29, 1988, relating to service between Los Angeles, California, and Washington, D.C.

5. According to the statistics reported in Attachment 1, 7 percent of the letters mailed from Los Angeles, California, are delivered in Washington, D.C. within two days, and 88 percent of such letters are delivered within three days.

6. Attachment 2 is an excerpt from a report summarizing the statistics for stamped mail delivery for the period from July 2 through July 29, 1988, relating to service between Los Angeles, California, and Washington, D.C.

7. According to the statistics reported in Attachment 2, 45 percent of the letters mailed from Los Angeles, California, are delivered in Washington, D.C., within two days, and 86 percent of such letters are delivered within three days.

8. Use of certified mail would serve only to increase the time required for delivery, typically by approximately one day.

9. The USPS has established a delivery standard of three days (excluding Sundays and holidays) for first class letters mailed from Los Angeles, California, to Washington, D.C.

10. USPS delivery standards represent goals established by the USPS for mail delivery, based upon handling, transportation, and delivery requirements, which represent the USPS’s goal for ordinary delivery of mail.

11. USPS delivery standards are a matter of public record and are readily available to the public.

12. Attachments 1 and 2 are copies made by Jack Siegel in the course of his duties as an employee in the Service Statistics Branch from reports printed on microfiche.

13. These statistics represent factual findings developed in the course of investigations regarding postal service made pursuant to lawful authority.

14. The statistics are based on raw data regularly recorded by USPS employees in the ordinary course of their employment duties.

15. I have read the foregoing statement and have determined that the information contained herein is true and correct to the best of my knowledge, information, and belief.

/s/ Bryan A. Bailey

BRYAN A. BAILEY

Sworn to and subscribed before me this 19th day of September, 1988.

(Signature)

Notary Public

My commission expires July 31, 1990 
      
      . The Court notes that the receipt for certified mail attached to the Ritchie declaration is stamped “City of Commerce, Ca., July 27, 1988.” Defendant’s opposition brief refers to Los Ange-les, California, as the point of mailing with no reference to Commerce, California. The Court, however, takes judicial notice of the fact that Commerce, California, is a postal subdivision of the Los Angeles division.
     
      
      . The Court is unable to determine from the submissions whether plaintiff used metered mail or stamped mail.
     