HP Lambert Co. v. Secretary of Treasury, 6493.

Decision Date15 November 1965
Docket NumberNo. 6493.,6493.
Citation354 F.2d 819
PartiesH. P. LAMBERT CO., Inc., et al., Petitioners, v. SECRETARY OF the TREASURY, Respondent.
CourtU.S. Court of Appeals — First Circuit

Walter E. Doherty, Jr., Boston, Mass., for petitioners.

Alan S. Rosenthal, Atty., Dept. of Justice, with whom John W. Douglas, Asst. Atty. Gen., and Jack H. Weiner, Atty., Dept. of Justice, were on brief, for respondent.

Before ALDRICH, Chief Judge, J. WARREN MADDEN, Senior Judge,* and JULIAN, District Judge.

ALDRICH, Chief Judge.

This is a petition to review the action of respondent Secretary of the Treasury revoking, pursuant to 19 U.S.C. § 1641(b), the customhouse broker's license issued to petitioner H. P. Lambert Co., Inc. of Louisiana, hereinafter the Louisiana company,1 the license to conduct a brokerage business in Louisiana issued to petitioner H. P. Lambert Co., Inc., a Massachusetts corporation, hereinafter the Massachusetts company, and reprimanding petitioners Fifield and Macchione, each a vice-president of both companies, hereinafter the officers. Except for a half-hearted attempt to suggest a deathbed conversion,2 the petitioners do not dispute the adequacy of the evidence. Instead, they assert a number of procedural and other matters.

For a corporation to obtain a broker's license two of its officers must hold individual licenses, although not necessarily for the district in which the corporation is licensed. 19 U.S.C. § 1641 (a); 19 C.F.R. § 31.7. The individual petitioners herein, the officers holding the qualifying licenses for both companies, are residents of Massachusetts and are licensed only for the Massachusetts district. Although underlying all the charges was the Louisiana company's misconduct in Louisiana, the officers contend that the Louisiana collector lacked jurisdiction over them. Their argument, based upon the regulations applicable to customhouse brokers (see 19 C.F.R. Part 31, particularly § 31.11), indicates a possible question whether Louisiana would be the "appropriate district" for commencing proceedings to revoke Massachusetts licenses. However, we do not reach this question. The principal issue, which was clearly laid in Louisiana, was the revocation of the Louisiana company's license. In connection therewith it was proper for the Louisiana collector to recommend a reprimand for the company's licensed officers who had assumed the duty "to exercise responsible supervision and control of the transaction of the customs business of such corporation * * *." 19 C.F.R. § 31.5(c). Due process required prior notice to the officers and opportunity to be heard, but no more.

Petitioners also contend that under section 1641(b) the initial hearing should have been held by the Collector of Customs, and was improperly held by an assistant collector. 19 U.S.C. § 10 provides, "In cases of occasional and necessary absence or of sickness any collector may exercise his powers and perform his duties by deputy * * *." See also 19 C.F.R. § 31.11(b) (1). At the outset of the hearing the assistant collector stated that the collector "is out of the District and will not be able to so conduct it. He has asked that I conduct it * *." Petitioners objected, stating that the collector "is the sole officer * * * who has jurisdiction to hear this matter."

While there may be no presumption that every absence of a collector from his district is a necessary one, there is a presumption of regularity of official acts. Cf. In re Ingersoll Co., 10 Cir., 1945, 148 F.2d 282; 2 Davis, Administrative Law § 11.06 (1958). At a minimum the collector's appointment of his deputy to conduct the hearing was an official act, importing that there was a proper basis for it. The burden of going forward to overcome this presumption was upon petitioners.

The Massachusetts company protests the revocation of its Louisiana license asserting that it has been dormant and did not participate in any of the misconduct complained of. This is true. However, the Louisiana company and the Massachusetts company are both owned and controlled by the same individual, and have the same qualifying licensed employees, who are also the principal officers of both. In such circumstances, the respondent reasonably concluded that the public would be assured little protection if the Massachusetts company could simply take over the Louisiana company's operation after the latter's license was revoked. However important it may be in other respects, the fiction of the corporate entity cannot stand athwart sound regulatory procedure. See Mansfield Journal Co. v. FCC, 1950, 86 U.S.App. D.C. 102, 180 F.2d 28, 37; cf. Reynolds Pallet & Box Co. v. NLRB, 6 Cir., 1963, 324 F.2d 833.

There is one matter in which we agree with petitioners. The improper conduct of the Louisiana company consisted of a series of acts or failures to act extending back as far as 1951. Although the collector dealt with the Louisiana company and expressed his disapproval over a long period of time, revocation proceedings were not instituted until July 1964. The petitioners, relying on 28 U.S.C. § 2462, assert that events occurring before July 1959 should not have been taken into consideration at the hearing. That section reads in part as follows:

"Except as otherwise provided by Act of Congress, an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first
...

To continue reading

Request your trial
19 cases
  • Bhd. of Loco. Eng'rs v. Springfield Terminal Ry.
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 8, 1999
    ...by an assertion of state power." Anderson v. Abott, 321 U.S. 349, 365 (1944)(piercing the veil); H.P. Lambert Co. v. Secretary of the Treasury, 354 F.2d 819, 822 (1st Cir. 1965) ("However important it may be in other respects, the fiction of the corporate entity cannot stand athwart sound r......
  • 3M Co. (Minnesota Min. and Mfg.) v. Browner
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 9, 1994
    ...proceedings. See Williams v. United States Dep't of Transp., 781 F.2d 1573, 1578 n. 8 (11th Cir.1986); H.P. Lambert Co. v. Secretary of the Treasury, 354 F.2d 819, 822 (1st Cir.1965); The A/S Glittre v. Dill, 152 F.Supp. 934, 940 (S.D.N.Y.1957). 3 Reports of two congressional committees on ......
  • Parcha v. Cuccinelli
    • United States
    • U.S. District Court — Eastern District of Texas
    • February 7, 2020
    ...failure to exercise responsible supervision and control over the business in accordance with the applicable governing statutes. 354 F.2d 819 (1st Cir. 1965). The second, Article II Gun Shop, Inc. v. Gonzales, addresses the revocation of a federal license to sell firearms by the Bureau of Al......
  • U.S. v. Meyer
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 14, 1987
    ...than five years had elapsed since the assessment of the administrative penalty. Id. at 92. 9 Similarly, H.P. Lambert Co. v. Secretary of Treasury, 354 F.2d 819, 822 (1st Cir.1965) and A/S Glittre v. Dill, 152 F.Supp. 934, 940 (S.D.N.Y.1957) (dictum), were cases in which the underlying viola......
  • Request a trial to view additional results
1 books & journal articles
  • CHAPTER 10 EQUITABLE DEFENSES AGAINST THE GOVERNMENT IN THE NATURAL RESOURCES AND ENVIRONMENTAL LAW CONTEXT
    • United States
    • FNREL - Special Institute Natural Resources & Environmental Administrative Law and Procedure (FNREL)
    • Invalid date
    ...Williams v. United States Dep't of Transp., 781 F.2d 1573, 1578 n. 8 (11th Cir. 1986); H.P. Lambert Co. v. Secretary of the Treasury, 354 F.2d 819, 822 (1 Cir. 1965); The A/S Glittre v. Dill, 152 F. Supp. 934, 940 (S.D.N.Y. 1957). [177] 3M, 17 F.3d at 1456 (quoting Butz v. Economou, 438 U.S......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT