
    (C.A.D. 1194)
    No. 77-6
    The United States v. Fairfield Gloves, Unitrex of America, Inc., Circle Import-Export Company, Kwan Yuen Co., Inc. California Gardenware Distr.,
    (558 F. 2d 1023)
    
      United States Court of Customs and Patent Appeals,
    July 21, 1977
    
      Barbara Allen Babcock, Assistant Attorney General, David M. Cohen, Chief, Customs Section, Edmund F. Schmidt for the United States.
    
      Robert Glenn White (Glad, Tuttle & White) attorneys of record, for appellees. Walter E. Doherty, Jr., E. Thomas Honey, James Cajfentzis, attorneys of record, for Amicus Curiae.
    [Argued on June 1, 1977 by David M. Cohen for appellant and by Robert Glenn White for appellees]
    Before Market, Chief Judge, Rich, Baldwin, Lane and Miller, Associate Judges.
    
    
      
       Rule 3.2 Commencement of Action
      (b) Summons: Filing by Mail; Date of Filing: For purposes of commencement of an action, a summons sent by registered or certified mail propeily addressed to the clerk of the court at One Federal Plaza, New York, New York 10007, with the proper postage affixed and return receipt requested, shall be deemed filed as of the date of postmark.
    
   Miller, Judge.

This is an appeal from an order of the United States Customs Court in Fairfield Gloves et al. v. United States, 77 Cust. Ct. —, C.R.D. 76-10 (1976), upholding the validity of Rule 3.2(b) of the Customs Court and ordering that the date of filing shown on summonses in five actions be corrected to show filing as of the date of their postmark. Noting that a controlling question of law was involved, the court also granted an interlocutory order for the Government to apply for an appeal to this court pursuant to 28 USC 1541(b). The Government’s petition for leave to appeal was granted by this court on November 30, 1976, and a notice of appeal and assignment of errors was filed on December 9, 1976. We affirm.

The facts in this case are uncontested. The summonses were mailed from Los Angeles, California, by certified mail in accordance with Rule 3.2(b) on January 28,1976, one hundred eighty days after denial of the protest.

Sections 2631(a) .and 2632(a) of 28 USC provide.

§2631. Time for commencement of action.
(a) An action over which the court has jurisdiction under section 1582(a) of this title is barred unless commenced within one hundred and eighty days after:
(1) tbe date of mailing of notice of denial, in whole or in part; of a protest pursuant to tbe provisions of section 515(a) of tbe Tariff Act of 1930, as amended; or
(2) the date of denial of a protest by operation of law pursuant to the provisions of section 515(b) of tbe Tariff Act of 1930, as amended.
§2632. Customs Court procedure and fees.
(a) A party may contest denial of a protest under section 515 of the Tariff Act of 1930, as amended, or tbe decision of the Secretary of tbe Treasury made under section 516 of tbe Tariff Act of 1930, as amended, by bringing a civil action in tbe Customs Court. A civil action shall be commenced by filing a summons in tbe form, manner, and style and with tbe content prescribed in rules adopted by tbe court.

Tbe Government contends that Rule 3.2(b), permitting an action to be commenced by mailing a summons, rather than by receipt by tbe court, within tbe statutory period, impermissibly attempts to expand tbe jurisdiction of tbe Customs Court and is, therefore, invalid. It urges that 28 USC 2631 is a statute waiving sovereign immunity and is to be strictly construed, that there is a body of case law construing tbe term “filing” to mean actual receipt by a court, that tbe legislative history of tbe Customs Courts Act of 1970, Pub. L. No. 91-271, 84 Stat. 274 (1970) (codified in scattered sections of 28 USC), shows a Congressional intent that tbe date of filing of a summons means tbe date of receipt by tbe court, and that other statutes show that when Congress intended that “fifing” mean “mailing” it explicitly so provided. Appellees and amicus urge that Congress delegated to tbe Customs Court tbe authority to provide by rule tbe “manner” in which an action may be “filed,” and hence “commenced,” and that Rule 3.2(b) is a valid exercise of that authority.

Opinion

We recognize tbe general rule that statutes waiving sovereign immunity, and thereby defining jurisdiction, are to be strictly construed. United States v. Boe, 64 CCPA 11, C.A.D. 1177, 543 F. 2d 151 (1976). However, it is “tbe terms of [tbe sovereign’s] consent to be sued in any court” which “define that court’s jurisdiction.” United States v. Sherwood, 312 U.S. 584, 586 (1941). Congressional adoption of broad statutory language authorizing suit is not to be thwarted by an unduly restrictive interpretation. Canadian Aviator, Ltd. v. United States, 324 U.S. 215, 222 (1945); see also Nahrgang v. United States, 51 CCPA 76, C.A.D. 840 (1964). •

The Government’s arguments would be much more persuasive if section 2631(a) read:

An action ... is barred unless a summons is filed with the Customs Court within one hundred eighty days.

Congress, however, used the term “commenced,” which is broader than “fifing.” Also, Congress provided that an action is “commenced by fifing a summons in the . . . manner . . . prescribed in rules adopted by the court.” (Emphasis ours.) 28 USC 2632(a). In United States v. Thompson-Starrett Co., 12 Ct. Cust. Appls. 28, T.D. 39896 (1923), this court’s predecessor decided the question of whether timely mailing could be considered timely “fifing” in the negative, based on the statutory provision which then governed appeals to the court. Section 515 of the Tariff Act of 1922, 42 Stat. 970, provided for appeals to the Court of Customs Appeals “within the time and in the manner provided by law.” The “manner” provided by law was “fifing in the office of the clerk of said court a concise statement of errors of law and fact complained of.” Tariff Act of 1909, ch. 6, §29, 36 Stat. 105, 107. However, in 26 USC 7502, timely mailing of documents to the Tax Court is treated as timely fifing” of such documents.

Under 18 USC 3772, the Supreme Court has been delegated authority to “prescribe the times for and manner of taking appeals and applying for writs of certiorari” in criminal cases. The Court, pursuant to this grant of authority, promulgated its own Kule 22, which, among other things, fixes the time for fifing a petition for writ of certiorari and provides that timely mailing is deemed timely fifing in the case of petitions from judgments of district courts outside the continental United States.

That Congress has not delegated authority to the Customs Court to prescribe the time for the commencement of an action does not detract from the clear wording of the statute (28 USC 2632(a)) indicating that Congress has delegated authority to prescribe the -“manner” of fifing summonses in rules adopted by the court.

Within the rule-making authority of the Customs Court, this court has advanced only one limitation, namely: that substantial rights of litigants not be unduly circumscribed. S. Stern & Co. v. United States, 51 CCPA 15, C.A.D. 830, 331 F. 2d 310 (1963), cert. denied, 377 U.S. 909 (1964). Far from unduly circumscribing litigants’ rights, Rule 3.2(b) recognizes the national jurisdiction of the Customs Court and attempts to place litigants far from the court’s New York City headquarters on an equal footing with those nearby in the commencement of actions in the court.

We are not persuaded by the cases cited by the Government for the proposition that “mailing” does not constitute “filing.” In all of those cases the relevant statute or rule specified that filing was to be at a definite place within a specified time, and none of the statutes included a delegation of the type of authority found in 28 USC 2632(a). Nor are we persuaded by what the Government'terms “the relevant legislative history” of the Customs Courts Act Statements made in briefs or in testimony presented at committee hearings cannot be considered as a guide to what Congress intended, since Congress has not delegated to organizations or individuals appearing before its committees the authority to construe a statute. See R. Sturm, A Manual of Customs Law 189 (1974), and cases cited therein.'

In view of the foregoing, we hold that Rule 3.2(b) of the Customs Court is a reasonable and valid exercise of authority delegated to the court by Congress.

The order of the Customs Court is affirmed. 
      
       A brief amicus curiae was filed by the Association of the Customs Bar¿
     
      
       We also recognize the rule that statutes giving the right of appeal are to be liberally construed in further* anee of justice. Wilmington Shipping Co. v. United States, 52 CCPA 76, 79, C.A.D. 861 (1965). Although the •Customs Courts Act of 1970 changed the procedure for obtaining judicial review in the Customs Court, 28 USC 1582 and 2631 can still be viewed as statutes giving the right of appeal. Prior to that Act, denials of protests were automatically transmitted to the Customs Court, a complete waiver of sovereign immunity from suit. Taiiff Act of 1930, ch. 497, § 515, 46 Stat. 734. It is clear from thelegislativehistoiy of the Customs Courts Act that this change in the method of appeal from denials of protests was merely to remove cases, which the importer had no intention or desire to litigate, from the Customs Court’s crowded docket. Such change was not designed to prejudice the appeal lights of importers who desired judicial review. S. REP. NO. 91-576, 91st Cong., 1st Sess. 7-10 (1969).
     
      
       Civil actions may be “commenced” in courts by means other than “filing” oi filing with the court. See, e.g., IOWA R. CIV. P. 48 (civil action commenced by serving the defendant with an original notice);
     
      
       Thus, the statute (section 6 of the White Slave Traffic Act, ch. 395, 36 Stat. 825, 826 (1910)) in United States v. Lombardo, 241 U.S. 73 (1916), required that a statement be filed “with the Commissioner General of Immigration.” Section 2601(b) of 28 USC, tho statute involved in Seneca Grape Juice Corp. v. United States, 61 CCPA 118, 492 F. 2d 1235 (1974), íequired “filing in the office of the clerk of the Cornt of Customs and Patent Appeals.” The Customs Court rule involved in Minkap of California, Inc. v. United States, 55 CCPA 1, C.A.D. 926 (1967) required motions for rehearing to be “filed with the clerk of the court at New York.”
     