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.

Comments

Post a Comment

Popular posts from this blog

CAFC Decision in Double Invoicing Case

The Federal Circuit has issued a decision on the merits in United States v. Inn Foods, Inc.  There had been a previous decision on jurisdiction, which was followed by a trial at the Court of International Trade and then this appeal on the substance. The initial issue is whether Inn Foods' invoicing practice amounts to fraud.  Inn Foods had been receiving an invoice from growers in Mexico that had a relatively low sales prices on it.  Subsequent to entry, Inn Foods created a second invoice at something more similar to market value, retaining the original invoice number, and paid at that higher amount.   Superficially, this looks like a standard-issue double-invoicing scheme.  But, in the age of reconciliation, is it really more like a provisional pricing mechanism?  It might have been possible to make that argument had Inn Foods adjusted its entries accordingly.  It didn't and the loss of revenue was approximately $624,000.  Based on testimony and evidence indicating both knowl
Read more

Target on Finality

Image
In the last post , about the Federal Circuit’s very important decision on due process and allegations of evasion of antidumping duties, I made a snarky, offhand comment that the government believes “liquidation is magic.” That was in the context of the government arguing that Customs’ liquidation of entries mooted an appeal, thereby taking away the importer’s right to further judicial review. I said that knowing full well that I still needed to write this post summarizing Target Corp. v. United States in which Target made what I want to be a valid and righteous argument that Customs’ improper liquidation of entries at a favorable rate of antidumping duty prevents the Court of International Trade from ordering Customs to collect the legally applicable duties. But it turns out that while liquidation is an important legal step, in at least one unusual circumstance it is not sufficiently powerful to overcome the full force of an Article III court. Understanding this case requires a lot
Read more

CAFC: EAPA Process Really Does Violate Due Process

Image
Hot on the heels of my complaining about how the EAPA law and process is stacked against importers, the Court of Appeals for the Federal Circuit has issued an important decision that will have a major impact on how those cases work. If you are unfamiliar with evasion cases under the Enforce and Protect Act and how Customs and Border Protection handles them, go back and look at these two posts: Part 1 , Part 2. Royal Brush Manufacturing, Inc. v. United States , is the decision in an evasion case against Royal Brush involving pencils allegedly transshipped from China through the Philippines. Customs determined that there was evasion of an antidumping duty order based in part on evidence that was not disclosed to Royal. Specifically, Customs sent a representative to the facility in the Philippines to photograph the interior and provide a report. Customs refused to disclose all the photographs to Royal. Moreover, CBP's report concluded that the facility did not have sufficient capacit
Read more