Boynton v. U.S.

• Decision Date: 02 October 2007
• Docket Number: Slip Op. 07-146.,Court No. 06-00095.
• Citation: 517 F.Supp.2d 1349
• Parties: Sherri N. BOYNTON, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

517 F.Supp.2d 1349

Sherri N. BOYNTON, Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 07-146.

Court No. 06-00095.

United States Court of International Trade.

October 2, 2007.

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 council, Office of Associate Chief Counsel, U.S. Customs and Border Protection for U.S. Department of Homeland Security, Customs and Border Protection, for Defendant.

OPINION

POGUE, Judge.

Plaintiff, Sherri N. Boynton, moves for judgment on the administrative record pursuant to USCIT Rule 56.1, asking the court to set aside the decision of the Secretary of the Department of Homeland Security¹ ("the Secretary") revoking her Customs broker's License.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),³, ⁴ 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 will review the decision of the Secretary of DHS on the administrative record, considering any objections raised in that proceeding.⁵

Standard of Review

The factual findings of the Secretary must be based on substantial evidence. 19 U.S.C. § 1641(e)(3). See also 5 U.S.C. § 706(2)(E) and Anderson v. United States, 16 CIT 324, 324 799 F.Supp. 1198, 1199-1200 (1992). Substantial evidence includes "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Fusco v. United States Treasury Dep't, 12 CIT 835, 838-39, 695 F.Supp. 1189, 1193 (1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Less than the weight of the evidence, the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency's findings from being supported by substantial evidence. Barnhart v. U.S. Treasury Dep't, 9 CIT 287, 290 613 F.Supp. 370, 373 (1985).

For legal issues, in accordance with 5 U.S.C. § 706(2)(A) the court reviews the Secretary's revocation decision to determine whether it is "arbitrary, capricious an abuse of discretion, or otherwise not in accordance with law". See also Barnhart, 9 CIT at 291, 613 F.Supp. at 374 (The court need only "assure itself the decision was rational and based on consideration of relevant factors").

Background

Plaintiff Sherri N. Kaplan, a.k.a. Boynton received her Customs broker's License in 1987. Through July 1, 1998, Plaintiff worked as the qualifying broker for Southwest Customs Service.⁶ On July 3, 1998, Boynton wrote to Customs to advise that as of July 1, 1998, she had resigned from Southwest and would no longer be the licensed individual employed by Southwest.⁷ On July 7, 1998, Boynton again wrote to Customs to confirm that she had resigned her position at Southwest effective July 1, 1998. She updated her license to use her married name, "Boynton", and stated that she intended to apply for a permit to operate under her married name. She submitted an application to operate under the name "Sherri N. Boynton CB", on July 23, 1998, and informed Customs that all operations would be conducted at 25031 Oak Street, Lomita, CA 90717, declaring that, "[a]ll files will be kept at this location in numerical order ... each file will contain ... a copy of my invoice to the customer as their Customs Broker, a copy of the Entry Summary and any other documents directly pertaining to each particular importation." In re Revocation of Customs Broker License of Sherri N. Boynton, 9-10 (Feb. 2, 2004, citing Tr. 570.) Boynton reconfirmed her resignation from Southwest on July 27th, 1998.

Shortly thereafter a new license was issued to Sherri N. Boynton under her original license number, allowing her to use the license under her married name. A new Customs broker permit was issued to her authorizing her to conduct business as "Sherri N. Boynton." The business address on the permit was the same as used in her application, 25031 Oak Street, Lomita CA 90717-2207. Boynton was assigned filer code "GE6," requiring every entry she filed, whether for herself or a client, to begin with "GE6."

From the time shortly before she left the employment of Southwest until the initiation of disciplinary actions in August, 2001, numerous problems arose with Boynton's actions as a Customs broker. Customs agents advised her, in writing and in person, about proper procedures and she was placed on national and local sanctions.⁸ Eventually, on August 9, 2001, the director of the Los Angeles/Long Beach Port (the "Port Director") requested that license revocation proceedings be instituted against Boynton. The Assistant Commissioner authorized the initiation of preliminary proceedings on September 11, 2001, and a "Notice of Preliminary Proceedings and the Notice to Show Cause and Statement of Charges" was served on Boynton on September 27, 2001. The Port Director requested authorization to institute formal revocation proceedings against Boynton's license on December 20, 2001, and the Assistant Commissioner authorized the proceedings on February 26, 2002.

Revocation proceedings commenced on March 28, 2002, under the direction of the former United States. Customs Service, now the United States Customs and Border Protection, a part of the Department of Homeland Security. Customs' Notice to Show Cause and Statement of Charges ("Notice") issued on March 28, 2002 was reissued on November 5, 2002 without modification to the charges. A formal hearing was conducted at Long Beach, California by Administrative Law Judge ("ALP) Sippel, from November 4 until November 7, 2002, in accordance with the Administrative Procedures Acts ("APA"), 5 U.S.C. § 554 et seq., and the Customs Rules of Practice, 19 C.F.R. § 111.62 et seq. ALJ Sippel issued a recommendation of license revocation on February 2, 2004. This recommendation was reviewed by the Secretary, and a decision revoking Boynton's license was issued on January 23, 2006. Boynton filed a timely appeal of the Secretary's decision on March 20, 2006. It is the revocation decision issued by the Secretary that we review here.

Discussion

In her decision revoking Boynton's license, The Secretary stated, "[b]ased on the record in this case, and in concurrence with the ALJ's recommended determination, I sustain [Custom's] proposed revocation of Ms. Boynton's License." Memorandum for Commissioner Robert C. Bonner from Acting Assistant Secretary Elaine Dezenski re revocation of Customs Broker License — Sherri N. Boynton. At the same time, the Secretary's decision did not hold any particular charge or set of charges against Boynton to be independently sufficient for the revocation of her license.

Customs regulations allows 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.⁹ An "egregious" violation is a "flagrant act or omission that shows gross irresponsibility beyond that of a nonrepetitive [sic] clerical mistake or a good-faith oversight." Customs Directive Number 099 3530-007 Section 5(B),¹⁰ 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. However, because the Secretary based her opinion not on a particular enumerated violation or sub-set of violations, but rather on the record as a whole, the court is unable to affirm the Secretary's decision unless it upholds each of her findings. We therefore must review each of the charges set out against Boynton under the "substantial evidence" test. Because the court may not substitute its judgment as to the appropriate penalty for Boynton, Barnhart, 9 CIT at 291, 613 F.Supp. at 374, if any charges remain after our review, the case must be remanded to the Secretary for further consideration. The Secretary may then decide what penalty is appropriate in light of any surviving charges.

The Government objects to this approach, noting that Boynton, in her brief, did not challenge one charge taken as proven by the Secretary: charge 5, operating under a name other than that on her broker's license without permission from or notice to Customs.¹¹ The government's position is that, pursuant to 19 C.F.R. § 111.53(c),¹² the Secretary could have based her decision on this one uncontested charge and that, given this, remand is not appropriate or necessary. The government is not correct. If the court were to follow the government's argument it would be substituting the court's judgment for that of the agency. Because the Secretary did not state that this charge alone would be sufficient to ground a revocation of Boynton's license, we will not make that decision for her now and, as noted, we must review each of the charges against Boynton under the "substantial evidence" test. If we do not find all of the charges accepted by the Secretary to be supported by substantial evidence, we must remand to the Secretary to determine a consequence in accordance with the remaining charges, if any. See SEC v. Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 87 L.Ed. 626 (1943) ("[t]he grounds upon which an administrative order must be judged are those upon which the record discloses...