Slip Op. 08-11
UNITED STATES COURT OF INTERNATIONAL TRADE
Sherri N. Boynton,
Plaintiff,
v. Before: Pogue, Judge
Court No. 06-00095
UNITED STATES,
Defendant.
[Remand determination affirmed.]
Decided: January 23, 2008
Law Offices of Robert W. Snyder (Robert w. Snyder) for Sherri N.
Boynton, Plaintiff.
Peter D. Keisler, Assistant Attorney General, Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Aimee Lee, Civil Division, Dept. Of Justice Commercial Litigation
Branch, Maritza Tamayo-Sarver, Of Counsel, Office of Associate
Chief Counsel, U.S. Customs and Border Protection for U.S.
Department of Homeland Security, Customs and Border Protection,
Defendant
OPINION
Pogue, Judge: This is a review of remand results, filed by the
Secretary of the Department of Homeland Security (hereafter
“Secretary”), revoking Plaintiff Sherri N. Boynton’s (hereafter
“Boynton”) customs broker’s license. In our prior opinion, Boynton
v. United States, ___CIT___, Slip Op 07-146 at 28(CIT 2007), we
remanded the Secretary’s initial revocation “to consider what
penalty is appropriate” on the record remaining after that prior
review.
Court No. 06-00095 Page 2
The Court has jurisdiction over this case under Section 641(e)
of the Tariff Act of 1930, 19 U.S.C. § 1641(e)(1),1,2 and 28 U.S.C.
§ 1581(g) (granting the Court of International Trade exclusive
jurisdiction of any civil action to review the revocation of a
customs broker’s license by the Secretary of the Department of
Homeland Security (“DHS”)). In accordance with 19 U.S.C. §
1641(e)(1) and USCIT Rule 56.1(a), the court reviews the decision
of the Secretary of DHS on the administrative record, considering
any objections raised in that proceeding.
Background
In our earlier decision we upheld, as supported by substantial
evidence, the Secretary’s findings of violations of Customs rules
and regulations “in Charges I, II, IV, V, VI, VIII, IX, and for
1
Citation is to the 2000 edition of the U.S. Code unless
otherwise noted.
2
19 U.S.C. § 1641(e)(1) provides: In general. A customs
broker, applicant, or other person directly affected may appeal
any decision of the Secretary denying or revoking a license or
permit under subsection (b) or (c), or revoking or suspending a
license or permit or imposing a monetary penalty in lieu thereof
under subsection (d)(2)(B), by filing in the Court of
International Trade, within 60 days after the issuance of the
decision or order, a written petition requesting that the
decision or order be modified or set aside in whole or in part. A
copy of the petition shall be transmitted promptly by the clerk
of the court to the Secretary or his designee. In cases involving
revocation or suspension of a license or permit or imposition of
a monetary penalty in lieu thereof under subsection (d)(2)(B),
after receipt of the petition, the Secretary shall file in court
the record upon which the decision or order complained of was
entered, as provided in section 2635(d) of title 28, United
States Code.
Court No. 06-00095 Page 3
Specifications 1, 4, 6, 7, 9, and 11 of Charge III” of Customs’
Notice to Show Cause and Statement of Charges (“Notice”). Id.
However, we also found that “Specifications 2, 5, and 8 of Charge
III, as well as Charge VII” were not supported by substantial
evidence. Id. Accordingly, we remanded this matter to the
Secretary to consider the appropriate penalty on the record
remaining after our review. Id.
On remand, the Secretary reviewed the record and held that,
“judicially sustained Charges I, II, IV, V, VI, VIII, IX, and
Specifications 1, 4, 6, 7, 9, and 11 of Charge III, jointly, and,
Charges III (Specifications 4, 7, 9, 11), IV, V, VI, VIII, and IX
severally or in combination thereof, support revocation of
[Boynton’s] license.”
We now review that remand determination.
Discussion
Customs regulations allow for revocation of a customs broker’s
license if, “[t]he broker has violated any provision of any law
enforced by Customs or the rules or regulations issued under any
provision of any law enforced by Customs.” 19 C.F.R. § 111.53(c).
See also, 19 U.S.C. § 1641(d)(1)(C). However, Customs’ policy has
generally been to issue progressive penalties and to reserve
revocation of a broker’s license only for “egregious” violations.
An “egregious” violation is a “flagrant act or omission that shows
gross irresponsibility beyond that of a nonrepetitive [sic]
Court No. 06-00095 Page 4
clerical mistake or a good-faith oversight.” Customs Directive
Number 099 3530-007 Section 5(B), available at
http://www.cbp.gov/linkhandler/cgov/toolbox/legal/directives/3530
-007.ctt/3530_007.doc. Thus, under Customs policy, if Boynton has
committed “egregious” violations of Customs rules, then revocation
of her license is warranted.
As we found in our earlier opinion, Boynton violated “several
Customs rules and regulations, often on multiple occasions.” The
Secretary has now determined that certain of the violations,
enumerated above, jointly and severally suffice to justify revoking
Boynton’s license. Since nothing in our prior decision requires
otherwise, we uphold the Secretary’s decision.
Plaintiff claims, however, that the decision of the Secretary
was both arbitrary and capricious and violated her right to due
process. More specifically, Plaintiff contends that the decision
of the Secretary is “arbitrary and capricious” in that the
Secretary considered no penalty other than revocation and that due
process was denied her because she was not allowed to submit new
evidence to the Secretary after our original ruling. Neither claim
has merit.
As to the first claim, if the findings of the Secretary are
supported by substantial evidence they must be upheld. 19 U.S.C.
§ 1641(e)(3). We have already held that the charges upon which the
Secretary relies in his decision were supported by substantial
Court No. 06-00095 Page 5
evidence. As noted above, revocation may be grounded on a
violation of “any provision of any law enforced by customs.” 19
C.F.R. § 111.53(c). The Secretary, then, did not act in an
“arbitrary and capricious” manner in revoking Boynton’s license,
but rather acted in accordance with law.
Plaintiff’s due process claim is also without merit.
Plaintiff seems to believe that the “record” in the case has
substantially changed and that this change justifies reopening the
record to allow her to submit additional evidence. Both aspects of
the claim are incorrect. First, the “record” upon which the
Secretary made his remand decision is essentially the same record
reviewed by the court in our prior decision with the exception of
the charges that we held not to be supported by substantial
evidence. It is unclear how this sort of change in the record
could prejudice Boynton in any way. Boynton availed herself of her
opportunity to seek and obtain judicial review. That review was
completed before any penalty was imposed, and the imposed penalty
was based on the record found supported by that prior judicial
review.
Secondly, reopening of an administrative record is an unusual
step, generally taken only in extraordinary circumstances. Farmers
Export Co. v. United States,758 F.2d 733, 737 (D.C. Cir. 1985). In
her reply, however, Plaintiff offers no argument at all as to what
“extraordinary circumstances” might justify reopening the record.
Court No. 06-00095 Page 6
It is not clear how the only claim she makes--that she has obtained
judgments against certain complaining witnesses-- might meet this
standard because Plaintiff has provided no clarification or
specific claim as to which, if any, of the charges against her
might be affected by reopening the record to consider any new
evidence. Given this, and given that Plaintiff has not,
apparently, before sought to introduce this evidence or reopen the
record, we find this claim to be without merit.
Conclusion
The Secretary has reasonably held that Charges I, II, IV, V,
VI, VIII, IX, and Specifications 1, 4, 6, 7, 9, and 11 of Charge
III, jointly, and, Charges III (Specifications 4, 7, 9, 11), IV,
V, VI, VIII, and IX severally or in combination thereof, support
revocation of [Boynton’s] license. As this decision is supported
by substantial evidence, is not arbitrary and capricious, and
does not violate Plaintiff’s right to due process we uphold the
determination revoking Plaintiff’s license. Judgment will be
entered accordingly.
So ORDERED.
/S/ Donald C. Pogue
Donald C. Pogue, Judge
Dated: Jan. 23, 2008
New York, New York