Because of some communication problems that appear to have been the fault of neither party, Daedalus did not respond until February 3, 1982, to the negative consideration letter regarding the second license application, No. A567746. Daedalus pointed out that the first application, No. A530489, which had received inter-agency approval and had been forwarded to COCOM for review, contained a recorder with capabilities superior to the equipment covered by the second license application. Daedalus requested that Defense review its position on the second license application in light of its previous position regarding the first license application.
As of the filing of the pleadings on this motion for summary judgment, the Department has neither referred the second application to COCOM nor issued a decision to grant or deny the licenses requested in the two applications.
In early 1983, Daedalus requested a meeting with Lawrence J. Brady, the Department's Assistant Secretary for Trade Administration, to discuss both Daedalus license applications. Mr. Brady and other Department personnel met with Alan Parker, President of Daedalus. By letter dated February 24, 1983, Vincent DeCain, Deputy to the Deputy Assistant Secretary of Export Administration, informed Daedalus that, because of interagency disagreement, both applications were in the process of being elevated to the Export Administration Review Board and informed Daedalus that it could discuss any remaining technical matters with interested Federal agencies.
Daedalus pursued the matter further. Its president, Alan Parker, met with Mr. DeCain on March 2, 1983, who arranged a subsequent meeting with a representative of the Defense Department on March 9. Despite those efforts, the Department has yet to take any final action.
In short, some 29 months after the filing of the first license application, and some 21 months after the filing of the second application, the Secretary has not reached a final decision to grant or deny the licenses.
In its motion to dismiss or for summary judgment, the Secretary presents two arguments in support of its contention that despite the egregious delay this Court should not reach the merits of this lawsuit: first, that this is an inappropriate case for judicial intervention; second, that plaintiff has not exhausted its administrative remedies.
The first argument can be dealt with quickly. The Secretary contends that a number of cases dealing with agency delay arising under the Administrative Procedure Act (APA), 5 U.S.C. § 706(1) stand for the proposition that unless the delay is unreasonable, injunctive relief is inappropriate. Cf. Environmental Defense Fund, Inc. v. Hardin, 138 U.S. App. D.C. 391, 428 F.2d 1093, 1099 (D.C.Cir.1970); Blankenship v. Secretary of HEW, 587 F.2d 329, 334-36 (6th Cir.1978). Here, the argument runs, the delay was understandable, in light of the multi-tiered process of review stemming from the foreign policy and national security considerations implicated.
The difficulty with that argument, as the Secretary himself concedes, is that this case does not arise under the APA, a statute bereft of the strict time constraints of the Act. Any role that the concept of "reasonable delay" may play in the context of the APA is irrelevant to the Act, where Congress explicitly set forth a detailed schedule. "In a statutory scheme in which Congress carefully prescribed a series of deadlines measured by numbers of days -- rather than months or years -- we may not simply interpret an additional . . . period into the procedural scheme." Mohasco Corp. v. Silver, 447 U.S. 807, 825-26, 100 S. Ct. 2486, 2497, 65 L. Ed. 2d 532 (1980).
The Secretary's stronger argument is that plaintiff has not exhausted the statutorily prescribed administrative remedies. Under Section 10(j)(2) of the Act, an applicant may file a petition with the Secretary requesting compliance with the time periods established by the Act. Only after first seeking recourse by way of this petition may the applicant then seek judicial review under Section 10(j)(3). The Act's regulations provide that the petition be in writing. 15 C.F.R. § 370.13(m)(3). Daedalus has never filed a written petition pursuant to Section 10(j)(2) and its regulations.
Nonetheless, the fact that Daedalus failed to submit a written petition does not bar its claim here. The doctrine of exhaustion is intended, in part, to afford the administrative agency the first opportunity to correct any error. When the agency has already made it abundantly obvious that it would not correct the error and would not conform its actions with the strictures of the Act, it would be meaningless to compel the hapless plaintiff to pursue further administrative remedies simply for form's sake. See, e.g., McKart v. United States, 395 U.S. 185, 201, 89 S. Ct. 1657, 1666-1667, 23 L. Ed. 2d 194 (1969) (the exhaustion remedy need not "be applied blindly in every case"); Baxter v. Claytor, 209 U.S. App. D.C. 188, 652 F.2d 181, 185 (D.C.Cir.1981); Blitz v. Donovan, 538 F. Supp. 1119, 1124 (D.D.C.1982).
Here, plaintiff sought repeatedly to ascertain the status of the application. Plaintiff's president met with defendant Brady and Mr. DeCain seeking an explanation for the interminable delay. The Court will not force plaintiff to submit to the futile formality of petitioning the same officials yet again.
An appropriate Order accompanies this Memorandum Opinion.