United States v. 2005-02-16 | 03-73141 | DIERKES VUS DEPARTMENT OF LABOR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 TINA DIERKES, No. 03-73141
Petitioner, LABR No.
v.  ALJ-00-TSC-002
U.S. DEPARTMENT OF LABOR, ORDER
Respondent. 
On Petition for Review of an Order of the
Department of Labor
Submitted February 10, 2005*
Seattle, Washington
Filed February 17, 2005
Before: Monroe G. McKay,** Diarmuid F. O’Scannlain, and
Carlos T. Bea, Circuit Judges.
COUNSEL
Thad M. Guyer and Stephani L. Ayers, Government Account-
ability Project, Seattle, Washington, for the petitioner.
Howard M. Radzely, Steven J. Mandel, Anne Payne Fugett,
and Barbara Eby Racine, United States Department of Labor,
Washington, D.C., for the respondent.
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Monroe G. McKay, Senior United States Circuit
Judge for the Tenth Circuit, sitting by designation.
1953

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ORDER
We previously issued an order to show cause why this peti-
tion for review should not be dismissed as untimely. We have
considered the responses submitted by both parties and now
dismiss the petition.
I
Tina Dierkes petitions for review of a decision of the
Department of Labor’s Administrative Review Board
(“ARB”). The timeliness of Dierkes’s petition is governed by
the employee protection provision of the Toxic Substances
Control Act, which provides, “The petition for review must be
filed within sixty days from the issuance of the Secretary’s
order.” 15 U.S.C. § 2622(c)(1) (emphasis added). The date of
June 30, 2003, is indicated on the first page of the ARB’s
decision denying Dierkes’s claim. Sixty days from June 30th
is Friday, August 29th. Although Dierkes did not file her peti-
tion until Tuesday, September 2nd, she contends that the peti-
tion is nevertheless timely because the filing period
purportedly did not commence until the ARB’s decision was
postmarked on July 1st.
We have not previously had occasion to define the term “is-
suance” in 15 U.S.C. § 2622(c)(1). We have, however, inter-
preted a nearly identical provision governing review of
Workers’ Compensation Benefits Review Board decisions.
See Stevedoring Servs. of Am. v. Dir., Office of Workers’
Comp. Programs, 29 F.3d 513 (9th Cir. 1994). That statute
requires a petition for review to be “fil[ed] . . . within sixty
days following the issuance of [a] Board order.” 33 U.S.C.
§ 921(c). The petitioner in Stevedoring Services argued that
the filing period should commence on the date when notice of
the decision is received, not on the date when the Board’s
decision is actually rendered. 29 F.3d at 515. We disagreed
and held that “the 60-day limitation period begins running
1954 DIERKES v. U.S. DEP’T OF LABOR

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when the Board made its decision, regardless of actual
notice.” Id. at 514.
Our conclusion that the “issuance” of an ARB decision is
not contingent upon mailing is bolstered by a Department of
Labor regulation that provides that an ARB “decision shall be
issued within 90 days of the receipt of the complaint and shall
be served upon all parties and the Chief Administrative Law
Judge by mail to the last known address.” 29 C.F.R. § 24.8(c)
(emphases added). The regulation’s plain language demon-
strates that the issuance of the ARB decision and its service
by mail upon the parties are two distinct acts. Indeed, if “issu-
ance” were synonymous with “service by mail,” it would be
redundant for the regulation to provide that a decision shall be
issued and that it shall be served.1
Practical considerations also militate in favor of treating the
date listed on the ARB’s decision—and not the date of the
postmark—as the date of issuance. Dierkes’s proposed rule
would require docketing clerks to attempt to interpret a badly
smudged or otherwise illegible postmark. Moreover, if a peti-
tioner discarded or lost the envelope in which the ARB mailed
the decision, it would be impossible to determine when the
decision had been issued. Utilizing the date indicated on the
Board decision as the date of issuance alleviates such poten-
tial difficulties.
II
Because “the 60-day limitation period [began] running
when the Board made its decision,” Stevedoring Servs. of
1This regulation also distinguishes Haroutunian v. INS, 87 F.3d 374
(9th Cir. 1995). There, we interpreted later-repealed statutory language
concerning the “issuance” of a deportation order as referring to the date
when the order was mailed. Id. at 375. Haroutunian reflects the fact that
the term “issuance” is susceptible to different meanings in different regu-
latory settings. The wording of 29 C.F.R. § 24.8(c) demonstrates that in
the ARB context, issuance and service are two distinct actions.
1955 DIERKES v. U.S. DEP’T OF LABOR

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Am., 29 F.3d at 514, Dierkes’s petition for review is untimely,
and thus we are without jurisdiction to entertain it.
DISMISSED.
1956 DIERKES v. U.S. DEP’T OF LABOR

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The summary, which does not constitute a part of the opinion of the court, is copyrighted
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