Butler v. U.S., Slip Op. 06-100. Court No. 04-00584.

CourtU.S. Court of International Trade
Writing for the CourtRidgway
Citation442 F.Supp.2d 1311
PartiesPatrick BUTLER, Plaintiff, v. UNITED STATES of America, Defendant.
Decision Date30 June 2006
Docket NumberSlip Op. 06-100. Court No. 04-00584.
442 F.Supp.2d 1311
Patrick BUTLER, Plaintiff,
v.
UNITED STATES of America, Defendant.
Slip Op. 06-100. Court No. 04-00584.
United States Court of International Trade.
June 30, 2006.

Page 1312

Law Office of Stephen J. Leahy, Hingham, MA (Stephen J. Leahy), for Plaintiff.

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 (James A. Curley); for Defendant.

OPINION

RIDGWAY, Judge.


In this action, Plaintiff contests the revocation of his customhouse broker's license, which resulted from his failure to file a triennial status report with the U.S.

Page 1313

Customs Service (now the Bureau of Customs and Border Protection) in February 2003.1

Now pending before the Court are Plaintiff's Motion to Transfer Case to Federal District Court and his supporting memorandum of points and authorities ("Plaintiffs Brief'), seeking the transfer of this action to the U.S. District Court for the District of Massachusetts. The Government opposes Plaintiffs motion. See Defendant's Opposition to Plaintiff's Motion to Transfer This Action to District Court ("Defendant's Brier)2

For the reasons set forth below, Plaintiffs Motion to Transfer is granted.

I. The Facts of The Case

According to the Complaint in this matter, Plaintiff—then a licensed customs broker, employed in Massachusetts—changed his residence in 2001. Although Plaintiff states that he gave Customs timely notice of his change of home address, it appears that the agency failed to record that change. Complaint ¶¶ 3-7; Administrative Record ("A.R.") 9 (May 13, 2003 letter to Customs from counsel for Plaintiff).3

In 2003, Plaintiff neglected to file a triennial status report on or before March 1, as required by 19 U.S.C. § 1641(g)(1) (2000) and 19 C.F.R. § 111.30(d) (2003).4 Complaint ¶¶ 8-9.5 As a result, Plaintiffs customs broker's license was suspended pursuant to 19 U.S.C. § 1641(g)(2). Complaint ¶ 10.6

Page 1314

On March 7, 2003, Customs sent written notice of Plaintiff's suspension, via certified mail, return receipt requested, in accordance with the statute and regulations. Complaint ¶ 14; A.R. 7-8 (March 7, 2003 suspension notice and envelope);7 19 U.S.C. § 1641(g)(2)(A); 19 C.F.R. § 111.30(d)(4). That notice, however, was sent to Plaintiff's former home address— the home address listed on his triennial report filed in 2000. Because the notice was misaddressed, the U.S. Postal Service did not deliver it, and returned it to Customs instead. Complaint ¶¶ 14-15, 27; A.R. 5 (2000 triennial report); A.R. 8 (envelope addressed to Plaintiffs former residence, stamped by U.S. Postal Service "Forwarding Order Expired," and returned to/signed for by Customs mailroom employee). Thereafter, Customs reportedly made some effort to reach Plaintiff through his employer, but failed. A.R. 10 (May 16, 2003 letter from Customs to counsel for Plaintiff, stating that agency personnel "made every attempt" to contact Plaintiff at his place of employment).8

Page 1315

In May 2003, Plaintiff independently realized that he had neglected to file the requisite triennial status report, and contacted Customs authorities in Boston. Complaint ¶¶ 16-17; A.R. 9 (May 13, 2003 letter to Customs from counsel for Plaintiff). Plaintiff first received notice of the suspension of his license on May 12, 2003, when Customs officials in Boston faxed a copy of the notice to him. One day later, on May 13, 2003, he submitted both his triennial status report and the required filing fee. Complaint ¶¶ 18-19, 23-24, 28; A.R. 9. But Customs officials in Boston returned the report and fee to Plaintiff on May 16, 2003, because they had not been filed within 60 days of March 7, 2003—the alleged date of the notice of suspension. Complaint ¶ 20; A.R. 10 (May 16, 2003 letter from Customs to counsel for Plaintiff).

Plaintiff protested that the statute, on its face, allows a broker to avoid the revocation of his license by filing his status report within a 60-day "grace period" that begins to run upon the broker's receipt of notice of the suspension of his license. A.R. 11 (June 5, 2003 letter to Customs from counsel for Plaintiff) (highlighting "the difference in language between the statute and the regulation"); see also A.R. 9 (May 13, 2003 letter to Customs from counsel for Plaintiff). Plaintiff asserted that Customs' regulation—which runs the 60-day clock from the date of the notice of suspension—is inconsistent with the plain language of the statute itself. A.R. 9; A.R. 11.9 Plaintiff emphasized that, in accordance with the language of the statute, his 2003 status report was filed within 24 hours of his receipt of the notice of suspension. A.R. 9. And Plaintiff argued that the application of Customs' regulation is particularly unjust where, as here, the broker's failure to receive the notice is not due to any act or omission by the broker himself. A.R. 9; A.R. 11.10

Page 1316

Plaintiffs arguments and objections were to no avail. Notice of the revocation of Plaintiffs customs broker's license was published in the Customs Bulletin and in the Federal Register in April 2004. Complaint ¶ 21; 38 Customs Bulletin & Decisions No. 16 at 2 (April 14, 2004); 69 Fed.Reg. 17,214 (April 1, 2004). This action ensued.

II. The Procedural History of The Case

Within a week of the filing of Plaintiffs action, an opinion issued in Retamal, a case with strikingly similar facts. See Retamal v. U.S. Customs & Border Protection, Dep't of Homeland Security, 28 CIT ___, ___, 2004 WL 2677199 (2004), vacated in part and rev'd in part, 439 F.3d 1372 (Fed.Cir.2006). The Court of International Trade there granted summary judgment in favor of the Government, finding that action "time-barred by operation of the law." 28 CIT at ___, 2004 WL 2677199 at * 3 (citing 19 U.S.C. § 1641(g)(2)).11

At the request of both parties, the Court stayed further proceedings in this action pending the decision of the U.S. Court of Appeals for the Federal Circuit in Retamal. The Court of Appeals' opinion in that case issued earlier this year, and is the predicate for Plaintiffs pending Motion to Transfer.

III. Analysis

In Retamal, the Court of Appeals has squarely held that the Court of International Trade lacks subject matter jurisdiction to review the revocation of a customs broker's license for failure to timely file a triennial status report. Retamal v. U.S. Customs & Border Protection, Dep't of Homeland Security, 439 F.3d 1372, 1375-76 (Fed.Cir.2006). Plaintiff contends that this action therefore should be transferred to the U.S. District Court for the District of Massachusetts, pursuant to 28 U.S.C. § 1631.

The statute invoked by Plaintiff provides, in pertinent part:

§ 1631. Transfer to cure want of jurisdiction

Whenever a civil action is filed in a court ... and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action ... to any other such court in which the action . . . could have been brought at the time it was filed ..., and the action ... shall proceed as if it had been filed in . . . the court to which it is transferred on the date upon which it was actually filed in ... the court from which it is transferred.

Page 1317

28 U.S.C. § 1631 (emphasis added).12 Accordingly, because it is plain that this Court lacks jurisdiction over the instant action, transfer pursuant to § 1631 is warranted if (a) transfer is "in the interest of justice," and (b) the action "could have been brought" in the U.S. District Court for the District of Massachusetts. See generally Britell v. United States, 318 F.3d 70, 73-74 (1st Cir.2003) (highlighting history of § 1631, summarizing purpose of statute as "protect[ing] litigants against both statutory imprecision and lawyers' errors," and explaining that statute creates rebuttable presumption in favor of transfer); Dalton v. Southwest Marine, Inc., 120 F.3d 1249, 1250 (Fed.Cir.1997) ("section 1631 is a remedial statute designed to eliminate any prejudice that results from filing in an improper forum") (citation omitted).

A. Whether Transfer Is In The Interest of Justice

The Government apparently does not dispute Plaintiff's claim that transfer would serve the interest of justice.13 As a leading treatise explains, "The `interest of justice' requirement ordinarily will be satisfied if the statute of limitations has expired subsequent to the time of the original filing, so that transfer, rather than dismissal, will preserve the plaintiffs cause of action." 17 Moore's Federal Practice § 111.52 (footnote omitted). Indeed, "[e]ven if the statute of limitations would not bar the plaintiff from refiling the action in the correct court, transfer rather than dismissal may be in the interest of justice because it would save the plaintiff the time, expense and effort of having to refile the action." Id. (footnote omitted).

Transfer is thus the preferred course of action in a case such as this, unless (1) the action is patently frivolous, (2) the action was not timely filed in the original court, or (3) the movant was dilatory in seeking transfer. 17 Moore's Federal Practice § 111.52. Moreover, "[s]ince the term `interests of justice' is vague," a court is entitled to "a good deal of discretion" in reaching its determination. Phillips

Page 1318

v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999) (Posner) (citations omitted).

The Court of Appeals' opinion in Retamal was handed down on March 6, 2006. See Retamal, 439 F.3d 1372. The Government and the Court were on notice of Plaintiff's intent to seek to transfer this action less than a month thereafter. See Joint Status Report (April 5, 2006). And the Motion to Transfer itself was filed on May 8, 2006—mere days after the Court of Appeals' mandate in Retamal issued. In short, there can be no argument here that Plaintiff was slow to seek the relief in question.

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4 practice notes
  • Reilly v. The United States, No. 09-506C
    • United States
    • Court of Federal Claims
    • 9 Julio 2010
    ...costs and expediting review, thereby furthering the interests of justice. See Ruiz, 552 F.3d at 276; Butler v. United States, 442 F. Supp. 2d 1311, 1317 (Ct. of Int'l Trade 2006); see also Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) ("Normally transfer will be in the interest of j......
  • L-3 Servs., Inc. v. United States, No. 11-755C
    • United States
    • Court of Federal Claims
    • 15 Marzo 2012
    ...v. United States, 93 Fed. Cl. 643, 653 (2010) (citing Ruiz v. Mukasey, 552 F.3d 269, 276 (2d Cir. 2009); Butler v. United States, 442 F. Supp. 2d 1311, 1317 (CIT 2006)). Transfer will cure the jurisdictional defects of plaintiff's complaint and expedite its review in district court. Moreove......
  • Best Key Textiles Co. v. United States, Slip Op. 15 - 63
    • United States
    • U.S. Court of International Trade
    • 18 Junio 2015
    ...the action "could have been brought" in the District Court for the District of Columbia. See Butler v. United States, 30 CIT 832, 837, 442 F. Supp. 2d 1311, 1317 (2006) (citation omitted). The plaintiff argues that transfer is in the interests of justice because it is "anPage 3aggrieved par......
  • Schick v. U.S., No. 2008-1172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 27 Enero 2009
    ...Trade should consider the applicability of the transfer statute, 28 U.S.C. § 1631, on remand. See Butler v. United States, 442 F.Supp.2d 1311 Each party shall bear its own costs for this appeal. REMANDED WITH INSTRUCTIONS. --------------- Notes: 1. Mr. Schick also argued on behalf of himsel......
4 cases
  • Reilly v. The United States, No. 09-506C
    • United States
    • Court of Federal Claims
    • 9 Julio 2010
    ...costs and expediting review, thereby furthering the interests of justice. See Ruiz, 552 F.3d at 276; Butler v. United States, 442 F. Supp. 2d 1311, 1317 (Ct. of Int'l Trade 2006); see also Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990) ("Normally transfer will be in the interest of j......
  • L-3 Servs., Inc. v. United States, No. 11-755C
    • United States
    • Court of Federal Claims
    • 15 Marzo 2012
    ...v. United States, 93 Fed. Cl. 643, 653 (2010) (citing Ruiz v. Mukasey, 552 F.3d 269, 276 (2d Cir. 2009); Butler v. United States, 442 F. Supp. 2d 1311, 1317 (CIT 2006)). Transfer will cure the jurisdictional defects of plaintiff's complaint and expedite its review in district court. Moreove......
  • Best Key Textiles Co. v. United States, Slip Op. 15 - 63
    • United States
    • U.S. Court of International Trade
    • 18 Junio 2015
    ...the action "could have been brought" in the District Court for the District of Columbia. See Butler v. United States, 30 CIT 832, 837, 442 F. Supp. 2d 1311, 1317 (2006) (citation omitted). The plaintiff argues that transfer is in the interests of justice because it is "anPage 3aggrieved par......
  • Schick v. U.S., No. 2008-1172.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 27 Enero 2009
    ...Trade should consider the applicability of the transfer statute, 28 U.S.C. § 1631, on remand. See Butler v. United States, 442 F.Supp.2d 1311 Each party shall bear its own costs for this appeal. REMANDED WITH INSTRUCTIONS. --------------- Notes: 1. Mr. Schick also argued on behalf of himsel......

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