(D.C. Cir. 1984), that "the policies inherent in the rule requiring strict construction of waivers of sovereign immunity strongly suggest that any doubts about the scope of a waiver be resolved in favor of the narrower governmental liability." Id. at 1257. In this case, the most restrictive construction of "dismissal" -- the date of the decision -- would ensure the "narrower governmental liability."
However, we hold that the policy behind the rule of strict construction should not apply in this case. The desire to preserve sovereign immunity reflects a desire to protect the public treasury. Unlike cases where liberal construction of the immunity waiver leads to monetary damage judgments against the United States, see, e.g., Kubrick, 444 U.S. 111, 62 L. Ed. 2d 259, 100 S. Ct. 352 (Federal Tort Claims Act); Nichols, 239 U.S. App. D.C. 146, 740 F.2d 1249 (claim for attorney's fees), the present action involves only a request for injunctive relief. Choosing a more liberal interpretation here would not increase government liabilities.
On the other side of the balance, strict interpretation of "dismissal" could effectively negate judicial review. In providing for review, Congress entrusted to the courts the responsibility "to insure the integrity of the decision-making process." Williams v. Robinson, 139 U.S. App. D.C. 204, 432 F.2d 637, 642 (D.C. Cir. 1970). To the extent the Commission's strict construction shortens the time available to prepare a petition, it devalues the right of review that Congress granted. The Commission here delayed eleven days from the time it voted to dismiss until the time it notified Common Cause. Neither the statute nor the regulations bar this practice. If we accept the Commission's interpretation, this lag necessarily reduces the sixty-day period. As the Fifth Circuit reasoned in Chem-Haulers, 536 F.2d 610, "it would be incongruous to rule that the speed with which the [Interstate Commerce] Commission issues an order following the session date at which it decides a matter is determinable of the variable length of time in which an aggrieved party may seek judicial review." Id. at 616. Allowing the Commission here to fix the review period would be equally "incongruous."
Moreover, the statute does not require the Commission to notify the complainant within sixty days of its decision. Taken to the extreme, therefore, the Commission's position could lead to notification of a dismissal after sixty days have elapsed and thus completely foreclose all opportunity for judicial review. This anomalous result would certainly be contrary to the intent of Congress. Cf. Chem-Haulers, 536 F.2d at 616 (rejecting the ICC's potential power "to insulate its orders from judicial scrutiny by delaying service of the order until sixty days after its decision date").
A further problem with accepting the date of decision as the baseline for review is that the complainant may not learn that date. In the present case, the Commission's letter to Common Cause merely stated that the Commission had closed the file and that Common Cause had the right to seek review. It failed not only to describe the Commission's action as a "dismissal" but also to mention when the vote occurred. A complainant receiving such a letter could only guess as to when his or her review period began -- or would run out.
The Commission's argument that Common Cause could have filed within sixty days of the decision does not sway our view of the statute. Common Cause still had almost fifty days after notification within which to file its petition. But the fact that this plaintiff enjoyed a substantial, if abbreviated, period after notice to seek review does not guarantee that all plaintiffs will be as fortunate. In defining the statutory term "date of the dismissal," we must anticipate future complainants, whose notification letters could conceivably issue more than sixty days after the Commission's secret vote.
We hold, therefore, that "date of dismissal" is the date of notification. This finding, however, leaves open one further question: when does the Commission notify? Although both Common Cause and the Commission focus on the date of the letter, notification could occur not only when the letter is dated, but also when it is mailed or received.
It is possible for a letter to be dated and then not mailed for an indeterminate period of time. To avoid the harshness of this possibility and to accommodate the fact that mails are frequently late, we further hold that the sixty-day review period begins when the complainant actually receives notice of the dismissal. Until the claimant is aware of the action, notice cannot accomplish its purpose of advising the plaintiff that the review period has started to run. See Franks v. Bowman Transportation Co., 495 F.2d 398, 404 (5th Cir. 1974), rev'd on other grounds, 424 U.S. 747, 47 L. Ed. 2d 444, 96 S. Ct. 1251 (1976). This interpretation follows analogous cases where courts have construed statutory notice as requiring receipt. See, e.g., Lewis v. Conners Steel Co., 673 F.2d 1240, 1243 (11th Cir. 1982)(interpretating Title VII provision for review "within ninety days after the giving of such notice"); Hospital San Jorge v. Secretary of Health, Education and Welfare, 616 F.2d 580, 585 n.6 (1st Cir. 1980)(interpretating Social Security Act).
Applying these conclusions to the facts before us, we find that Common Cause filed its petition within the statutory period for review. Accordingly, defendant's motion to dismiss is denied.
An order consistent with the foregoing has been entered this day.
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