Wednesday, November 04, 2009

No Transfer in License Revocation Case

The Court of International Trade has once again dashed the hopes of Arthur Schick to regain his customhouse broker’s license without re-applying for a license from scratch.

I previously reported on Mr. Schick’s plight. He had his license summarily revoked after failing, due to illness, to file his triennial status report as required by 19 U.S.C. 1641(g). Mr. Schick’s lawyers made a valiant effort, raising a number of arguments that Customs and Border Protection improperly revoked the license without a hearing and, therefore, the revocation is invalid. These arguments were based upon the customs regulations, the Administrative Procedure Act, and the Fifth and Eighth Amendments to the Constitution. The latter arguments were based on the premise that the lack of a hearing violated Mr. Schick’s due process rights and that the revocation was an excessive punishment.

In the first opinion from the Court of International Trade, the Court dismissed the case finding that it had no jurisdiction to review the decision. On appeal, the Federal Circuit agreed that the Court of International Trade lacked subject matter jurisdiction. Nevertheless, the Federal Circuit remanded and suggested that the CIT should consider transferring the case to a court that does have jurisdiction. Plaintiff has suggested that the District Court for the District of Columbia would be the correct venue.

This possible solution, however, ran into another obstacle. Considering the motion to transfer, the CIT began with the premise that transfers are only appropriate where the transfer serves the interest of justice. Consequently, the Court looked at the merits of the underlying claim challenging the revocation. That did not go well for Mr. Schick.

Basically, the Court held that there is no right to a hearing when a broker’s license is revoked for failure to file the triennial report. Revocation is essentially automatic. Because Customs had no discretion on whether to revoke the license, the CIT found that the lack of a hearing did not violate any of Mr. Schick’s rights under the regulations, the Administrative Procedure Act, or the Constitution. Further, Mr. Schick admitted in his complaint seeking relief that he had failed to file the report, thereby admitting that the license was properly revoked.

Because none of Mr. Schick’s arguments had merit, none would result in the restoration of his license or even a hearing on the issue. Consequently, according to the Court of International Trade, justice would not be served by transferring the case to another Court. The Court, therefore , denied the motion and dismissed the case.

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