Retamal v. U.S. Customs & Border Protection Department of Homeland Security , 29 Ct. Int'l Trade 132 ( 2005 )

Slip Op. 05 - 15
UNITED STATES COURT OF INTERNATIONAL TRADE
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SERGIO U. RETAMAL, :
Plaintiff, :
v. : Court No. 03-00613
U.S. CUSTOMS AND BORDER PROTECTION :
DEPARTMENT OF HOMELAND SECURITY,
:
Defendant.
:
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Memorandum & Order
[Upon motion in the name of the plaintiff
for rehearing, counsel admonished to ad-
here to the rules of proper practice.]
Dated: February 3, 2005
John J. Galvin (Galvin & Mlawski) relator pro bono et malo.
Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Jack S. Rockafellow); and Office of Associate Chief
Counsel, Customs and Border Protection, U.S. Department of Homeland
Security (Marc K. Matthews), of counsel, for the defendant.
AQUILINO, Senior Judge: From the beginning, the Court
of International Trade has had the benefit of able advocacy by the
members of its especial Bar, some of whom, more recently, have
appeared in certain cases pro bono publico. That kind of partici-
pation, however, does not entail any exemption from the well-
established rules of proper practice.
Court No. 03-00613 Page 2
I
This action for judicial review of the revocation of the
license of a customs broker pursuant to 19 U.S.C. §1641(g)(2) was
commenced and prosecuted by the plaintiff pro se. Upon defendant's
motion, it was dismissed as time-barred per the court's slip
opinion 04-149, 28 CIT (Nov. 24, 2004), familiarity with which
is presumed.
Subsequent to the entry of that final judgment, the
office of the Clerk of Court received and docketed a notice of
appearance by the above-named relator, John J. Galvin, Esq., a
Plaintiff's Motion for Rehearing, and, following the filing by the
defendant of papers in opposition thereto, a Plaintiff's Reply to
Defendant's Response in Opposition to Plaintiff's Motion for
Rehearing. Since each submission signed by him appeared on its
face to violate a rule of CIT practice, namely, 75, 11, and 7,
respectively, the undersigned was constrained sua sponte to order
the relator to show cause why he should not be sanctioned for
violation of the rules. A hearing was held thereon in open court
on January 28, 2005.
A
Of course, the initial questions every court must
consider are the standing of a named party plaintiff to invoke
jurisdiction and, when asserted through an attorney, the authority
Court No. 03-00613 Page 3
of that individual to so represent. See, e.g., Ross ex rel. Smyth
v. Lantz, No. 05-CV-116(RNC) (D.Conn. Jan. 25, 2005)(stay of
execution granted), motion to vacate stay denied, No. 05-8900 (2d
Cir. Jan. 25, 2005), application to vacate stay granted sub nom.
Lantz v. Ross, No. 04A656, 543 U.S. (Jan. 27, 2005).
Here, the first answer is and was in the affirmative:
Sergio U. Retamal had (and has) standing to attempt to obtain
judicial relief, and he therefore had at the least his first day in
court, to the extent permitted by the facts and governing law of
his predicament, which were held to warrant final judgment in favor
of the defendant.
The answer to the second question was not clear at all
after entry of that dismissal (and prior to issuance of the order
to show cause), and the hearing held thereon did not completely
clarify the matter either. The motion for rehearing submitted by
the relator prays, in the alternative, that decision thereof
be stayed pending a final resolution of the identical
issue presently pending . . . in Butler v. United States,
Court No. 04-00584, which case appears to involve facts
and issues which are the same in all material respects to
those at bar herein.
That matter, Butler v. United States, was docketed just before the
entry of the judgment of dismissal herein, which, as reported at
the hearing, led Massachusetts counsel therein to contact the
relator for advice with regard to the judgment's impact:
Court No. 03-00613 Page 4
. . . [T]he decision of this court [o]n November 24
would seem to be a difficult obstacle to his prevailing.
He felt that he . . . certainly couldn't represent Mr.
Retamal . . . but he asked me . . . if we would be
willing to . . .. I said, well I doubt it . . . from
what I understand he's a young fella, I doubt he can
afford it.1
This then sounds like the instigation of whatever contact may have
come to be between the relator and the plaintiff, who has yet to
notify this court of any desire that Mr. Galvin represent him any
further before the undersigned. Such notice is the expectation of
USCIT Rule 75(c) viz.:
A party who desires to substitute an attorney may
do so by serving a notice . . . substantially . . .
as set forth in Form 12 of the Appendix of Forms. . . .
B
USCIT Rule 7(d) provides that a party making a dis-
positive motion shall have 10 days after service of a response
thereto to serve a reply. Subsection (g) of that rule defines such
motions to include those
for judgment on the pleadings; . . . for summary judg-
ment; . . . for judgment upon an agency record; . . . to
dismiss an action; and any other motion for a final
determination of an action.
On its face, the motion at bar in the name of the
plaintiff for rehearing, praying as it does either for vacation of
the judgment of dismissal or for a stay pending resolution of a
subsequently-commenced, other action, is not one for a final
1
As deciphered from the recording of the hearing that has yet
to be transcribed officially.
Court No. 03-00613 Page 5
determination. See, e.g., Belfont Sales Corp. v. United States, 12
CIT 916, 919 and 698 F.Supp. 916, 919 n. 7 (1988)("a motion for
rehearing . . ., depending on its content, can be either disposi-
tive within the foregoing definition or not"); Volkswagen of
America, Inc. v. United States, 22 CIT 280, 282 and 4 F.Supp.2d
1259, 1261 n. 1 (1998). Hence, the filing of Plaintiff's Reply to
Defendant's Response in Opposition to Plaintiff's Motion for
Rehearing was not in order, and, as stated by the court at the
hearing, its contents therefore will not be taken into account.
C
It can be assumed that each and every lawyer who
practices in federal court is aware, perhaps even painfully-aware,
of Rule 11. See generally Vairo, Rule 11 Sanctions: Case Law,
Perspectives and Preventive Measures (3d ed. 2004 American Bar
Ass'n). USCIT Rule 11(b) provides that, by
presenting to the court (whether by signing, filing,
submitting, or later advocating) a pleading, written
motion, or other paper, an attorney or unrepresented
party is certifying that to the best of the person’s
knowledge, information, and belief, formed after any
inquiry reasonable under the circumstances,
(1) it is not being presented for any
improper purpose, such as to harass
or to cause unnecessary delay or
needless increase in the cost of
litigation;
(2) the claims, defenses, and other
legal contentions therein are war-
ranted by existing law or by a non-
frivolous argument for the exten-
sion, modification, or reversal of
existing law or the establishment of
new law;
Court No. 03-00613 Page 6
(3) the allegations and other factual
contentions have evidentiary support
or, if specifically so identified,
are likely to have evidentiary sup-
port after a reasonable opportunity
for further investigation or discov-
ery; and
(4) the denials of factual contentions
are warranted on the evidence or, if
specifically so identified, are
reasonably based on a lack of infor-
mation or belief.
The gist of Plaintiff's Motion for Rehearing filed herein
by the relator is that it was "manifestly erroneous" for the court
to dismiss this action. Presumably, the relator selected this
compound adjective in recognition of a cited standard that, when
considering a motion for rehearing, a court will not disturb a
prior decision unless it is in fact "manifestly erroneous". E.g.,
United States v. Gold Mountain Coffee, Ltd., 8 CIT 336, 337, 601
F.Supp. 212, 214 (1984), quoting Quigley & Manard, Inc. v. United
States, 61 CCPA 65, C.A.D. 1121, 496 F.2d 1214 (1974). But that
approach was enunciated by the court of appeals in Quigley as the
standard for its review of the Customs Court's denial of a motion
for rehearing. See 61 CCPA at 67, 496 F.2d at 1214, quoting
Commonwealth Oil Refining Co. v. United States, 60 CCPA 162, 166,
C.A.D. 1105, 480 F.2d 1352, 1355 (1973).
Be that as it may, this court continues to consider a
motion for rehearing governed by a broader purpose, to wit, as "a
Court No. 03-00613 Page 7
means to correct a miscarriage of justice" 2. Or stated, another
way, the
purpose of a petition for rehearing under the Rules
. . . is to direct the Court's attention to some material
matter of law or fact which it has overlooked in deciding
a case, and which, had it been given consideration, would
probably have brought about a different result.
NLRB v. Brown & Root, Inc., 206 F.2d 73, 74 (8th Cir. 1953). See
also Exxon Chemical Patents, Inc. v. Lubrizol Corp., 137 F.3d 1475,
1479 (Fed.Cir.), cert. denied, 525 U.S. 877 (1998); New York v.
Sokol, No. 94 Civ. 7392 (HB), 1996 WL 428381, at *4 (S.D.N.Y. July
31, 1996), aff’d sub nom. In re Sokol, 108 F.3d 1370 (2d Cir.
1997); In re Anderson, 308 B.R. 25, 27 (8th Cir. BAP 2004).
2
Starkey Laboratories, Inc. v. United States, 24 CIT 504,
510, 110 F.Supp.2d 945, 950 (2000), quoting Nat'l Corn Growers
Ass'n v. Baker, 9 CIT 571, 585, 623 F.Supp. 1262, 1274 (1985).
Compare Bomont Industries v. United States, 13 CIT 708, 711, 720
F.Supp. 186, 188 (1989) ("a rehearing is a 'method of rectifying
a significant flaw in the conduct o[f] the original proceeding'"),
quoting RSI (India) Pvt., Ltd. v. United States, 12 CIT 594, 595,
688 F.Supp. 646, 647 (1988), quoting the "exceptional circumstances
for granting a motion for rehearing" set forth in North American
Foreign Trading Corp. v. United States, 9 CIT 80, 607 F.Supp. 1471(1985), aff'd, 783 F.2d 1031 (Fed.Cir. 1986), and in W.J. Byrnes &
Co. v. United States, 68 Cust.Ct. 358, C.R.D. 72-5 (1972). See
also USCIT Rule 61:
No error . . . or defect in any ruling or order or
in anything done or omitted by the court . . . is ground
for granting a new trial or for setting aside a verdict
or for vacating, modifying, or otherwise disturbing a
judgment or order, unless refusal to take such action
appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which
does not affect the substantial rights of the parties.
Court No. 03-00613 Page 8
As the facts underlying the instant action and set forth
at page 4 of slip opinion 04-149 show, there is no injustice to
correct, and, perhaps not surprisingly, the relator does not argue
otherwise. Rather, he refers to the opinion's conclusory citation
of 19 U.S.C. §1641(e)(1) and 28 U.S.C. §2636(g) as the error, but
correction thereof 3 cannot lead to vacation of the judgment of
dismissal. Quite simply, the plaintiff failed to timely file his
report that is required by 19 U.S.C. §1641(g)(1) on the first of
February every third year and then failed to submit that triennial
report within the grace periods afforded by subsection (g)(2) viz:
If a person licensed under subsection (b) of this
section fails to file the required report by March 1 of
the reporting year, the license is suspended, and may be
thereafter revoked subject to the following procedures:
(A) [Customs] shall transmit written
notice of suspension to the licensee no later
than March 31 of the reporting year.
(B) If the licensee files the required
report within 60 days of receipt of the [Cus-
toms] notice, the license shall be reinstated.
(C) In the event the required report is
not filed within the 60-day period, the li-
cense shall be revoked without prejudice to
the filing of an application for a new li-
cense.
As pointed out at page 2 of slip opinion 04-149, plaintiff's report
was received by Customs on May 28, 2003, some three weeks after his
license had been revoked "by operation of law on May 6, 2003".
3
The language, but not the essence, of slip opinion 04-149
will be amended.
Court No. 03-00613 Page 9
Clearly, the plaintiff acted too late to forego that
mandatory statutory revocation, albeit "without prejudice to the
filing of an application for a new license." Moreover, as Plain-
tiff's Motion for Rehearing itself indicates, the statutes4 "do not
address []or confer jurisdiction in cases involving revocation of
a broker's license by operation of 19 U.S.C. §1641(g)(2)[C)".
Indeed, the fact that Congress has provided in 19 U.S.C. §1641(e)
for judicial appeal from license revocations pursuant to preceeding
subsections of 1641 is the best evidence of the legislative
determination not to permit such review of matters arising out of
succeeding subsection (g), nor does the history of those statutes
(or the relator herein) show otherwise.
II
In view of the foregoing, Plaintiff's Motion for
Rehearing must be, and it hereby is, denied; and its relator pro
bono et malo must be, and he hereby is, admonished to adhere to the
rules of proper practice.
So ordered.
Dated: New York, New York
February 3, 2005
Thomas J. Aquilino
Senior Judge
4
E.g., Tariff Act of 1930, ch. 497, Title IV, §641, 46 Stat.
590, 759-60 (June 17, 1930), as amended; Customs Courts Act of
1980, Pub. L. No. 96-417, Title VI, §611, 94 Stat. 1727, 1746 (Oct.
10, 1980); Trade and Tariff Act of 1984, Pub. L. No. 98-573, Title
II, §212, 98 Stat. 2948, 2978-84 (Oct. 30, 1984).