Tuesday, January 27, 2009
File Your Report
Brokers know that they are required to file a report with Customs and Border Protection stating that they are continuing to work as a broker and their address. That's in the customs regulations at sec. 111.30(d). They also have to pay the applicable $100 fee. The report is due February 1, so if you are a broker, get your ducks in a row and do your filing.
If you don't, you may be in trouble. I know this because the Court of Appeals for the Federal Circuit has recently decided Schick v. United States. Mr. Schick lost his license because of a failure to file his triennial report. He then appealed to the U.S. Court of International Trade, which held that it had jurisdiction to here his appeal. On that narrow point, the Federal Circuit reversed. According to the Court of Appeals, the revocation of a license for failing to file the report is not reviewable by the Court of International Trade because it is not an action that is specified in 28 U.S.C. sec. 1581(a)-(h). Most specifically, this revocation is not a disciplinary proceeding under sec. 1641(d), which would be reviewable in the CIT.
So what is Mr. Schick to do? Well, the CAFC dangles the possibility of review by another court. But where would he go and what would he do there? The Administrative Procedure Act says that a person aggrieved by an action of a federal agency is entitled to review of that action. The problem is that the APA does not establish jurisdiction for a court to hear the claim. If this claim does not belong in the CIT, it would appear to be best addressed by the district court in the port where Mr. Schick should have filed his report.
Good luck to Mr. Schick. I'm sorry to say that even if he finds a court with jurisdiction, the facts are going to be tough to overcome without some very compelling law.