Slip Op. 02-33

UNITED STATES COURT OF I NTERNATIONAL

TRADE

____________________________________ : 

### B YUNG 

### W U 

### L EE 

### , :

Plaintiff , : v. Court No. 97-12-02192

: 

### U NITED 

### S TATES , :

Defendant

. ____________________________________: [Plaintiff’s motion for judgment on agency record to set aside revocation of customhouse broker’s license denied, and action dismissed.] Decided: March 29, 2002 Peter S. Herrick

for Plaintiff. Rober t D. McCallum, Jr. , Assistan t Attorne y G eneral ; Joseph I. Liebman , A tt or ne y- In

Charge, and John J. Mahon , Acting Attorney in Cha rge, Int ernational Trade Field Office, Commercial Litig ation Br anch, Civ il Division, U.S. Department of Justice ( Aimee Lee and Arthur J. Gribbin ); David Fleck , Office

of Assoc iate Chie f Counsel, U.S. Customs Service, Of Counsel; for Defend ant.

OPINION RIDGWAY, Judge:

Plaintiff Byung Wu Lee (“Mr. L ee”) initiated this action pursuant to 19 U.S.C. § 1641(d)(2)(B) to contest the decision o f the Secre tary of the Tr easury (“Secr etary ”) revo king his customhou se broke r’s li cense. Mr. Lee ha s mov ed for j udgm ent on the ag ency record under U. S. CIT Rule 56.1 to set aside the Secretary ’s decision. For the reasons that follow, Mr. Lee’s motion is denied, and the Secretary ’s decision is affirmed.Court No. 97- 12-02192 Pag e 2

1 The 60-day re quirement is set forth in 19 C.F.R. § 111.94, which requires that, where Customs makes a final determination that a broker is liable for

a moneta ry penalty , the brok er “must pay the monetary pe

nalty, or make a

rrangements fo r p ayment of the moneta ry penalty

, within 60 calendar days of the date of the written decision .” 19 C.F.R. § 111.94 (emphasis added). 19 C.F.R. § 111.29, in turn, requires that a broker “exercise due dilig ence in making financial settleme nts, in answering correspondence , and in preparing or assisting in the prepa ration and filing of records relating to any

customs business matter handled by him as a broker

. Payment of duty tax, or other debt

or obligation owing to the Government for which the broker is responsible,

. . . shall be made to the Government on or before the date that payment is due .” 19 C. F.R. § 111.2 9 (emphasis added). For purposes of this opin

ion, cita tions to the

Code of F ederal

Regula tions ge nerally refer to the 1991 or 1993 edition, as appropriate, unless otherwise noted. The reg ulations at

issue here are identica l in the two

editions. Si mi la rl y, except as otherwise noted , statu tory citations herein g enerally a re to the 1994 version of the U.S. Code.

2 19 C.F.R. § 11 1.53 auth orizes lic ense re vocation procee dings in any

case where “(c) The broker has violated any provision of any law enforced by Customs or the rules or regulations issued under any such provision .” 19 C.F.R. § 111.53 (1995) (emphasis added). I. Background The United Sta

tes Cust oms Service (“C us to ms ”) , a bu re au of th e D ep ar tm en t o f t he Tr ea su ry, issued a broker’s license to Mr. L ee on August 12, 1987. Agency Record (“A.R.”) 17 at 4. On two separa te occasions in the ye ars that f ollowed, Customs ass essed mon etary penaltie s again st him

for various violations

of applic able statut es and regulations. On both occasions, he failed to pa y the penaltie s within 60 d

ay s of their

assessme nt. Mr. Lee ’s failur

es to make

timely pay ment thems elves co nstituted n ew brea ches of C ustoms regulations –

specific ally , 19 C.F.R. §§ 111.29 and 111.94. 1 Invoking 19 C.F.R. § 111.53, 2 CustomsCourt No. 97- 12-02192 Pag e 3

sought revocation of Mr. Lee ’s license based on the new

charg es. The specific facts underly ing the

new charg es were

set forth in two so-c alled “s

pecific ations”

in the administrative proceedings which ultimately resulted in the decision to revoke Mr. Lee’s license, a

nd which are at issue here. A. Specification I On August

16 , 1 99 0, Cu st om s i ss ue d t o M r. Lee a N ot ic e o f In te nt to Iss ue Mo ne ta ry P en al ty, advising that Customs was considering assessing a $1,000 penalty a

gainst him. That

“$1,000 PrePenalty Notice” charg ed Mr. L ee with f

ailure to exercise responsi ble supervision and control over Customs business c onducted (a viola tion of 19 U .S.C. § 1641(b)(4) ) and with failure to obtain a power of attorney be fore transacting Customs business for a princi pal ( a violation of 19 C.F.R. § 141.46). A.R. 17 at 6. Throu gh counsel, Mr. Le e responded to the $1,000 Pre-Penalty Notice on September 13, 1990, contesting Customs’ allegations and urging that the agenc

y take no fur

ther action. A.R. 17 at 7-8. Customs con sidered

but reje cted Mr. Lee ’s arg uments and, on January 15, 1991, issued a Notice of Penalty for $1,000

(the “$1,000 Penalty Notice ”). A.R. 17 at 9. Mr. Lee responded to the notice throu gh counsel on February 8, 1991, requesting “administrative relief” from the penalty. A .R. 17 at 13-14. After consideration of that second response, Customs rendered its final determination on October 10, 1991 (“Final Determination I ”), mitigating the penalty to $250. A.R. 17 at 15. Customs sent demand letters in November 1991 and in Januar y, Mar ch, and April 1992. A.R. 17 at 17, 20, 23, 2 6

. However, Mr. Le e failed to respond. Only after the matter had been forwarded

to the Department of Justice for collection did Mr. Lee pay the $250 – in January 1993, well more than a year after Customs’ Final Determination I . A.R. 17 at 27-28.Court No. 97- 12-02192 Pag e 4

3 Sp ec if ic al ly, the $30,000 Pre-Penalty Notice cited Mr. Lee for f

ailure to e xercise re sponsible supervision and control over Customs business conducted (a violation of 19 U.S.C. § 1641(b)(4) ); for violation of “any provision of a ny law enfor

ced by t he Cust oms Service or the rules or regulations issued under any suc h provision” (a violation of 19 U.S.C. § 1641(d)(1)(C) ); for failure to maintain

record s in

the pres cribed f

ormat (a violation o f 19 C.F.R . § 111.22) ; for fai lure to tim ely provide employee infor

mation (a vi o lation of 19 C.F.R. § 111.28); for failure to exercise due diligence in the con

duct of f inancia l affair s and fai lure to no ti fy clients of responsibilities and liabilities fo r Customs ch arges (a violation of 19 C.F.R. § 111.29(a)-( b) ); for utilization of a fictitious name with out the re quisite approval (a violation of 19 C.F.R. § 111.30(c) ); and for failure to maintain valid powers of attorney for his principals (a violation of 19 C.F.R. § 141.46). A.R. 17 at 29-30. B. S pec ifi cat io n II In the mean

time, on De cember

7, 1992, Cu stoms had is sue d t o Mr . Le e another Notice of Intent to Iss ue Moneta

ry Penalty . That noti ce (the “$30,000

Pre-Pena lty Notice”) advised that Customs was considering assessing a $30,000 pena lty aga inst Mr. Lee for

a laundry list of

violations of applica ble statu tes and regulations identified in an age ncy audit of his books and re cords conducted in March 1992. 3 A.R. 17 at 29-33. Mr. Lee filed no response to the $30,000 P re -Penalty Notice. See A.R. 9, Recommended Decision and Order of Administrative La w Judge John M. Frysiak, In the Ma tte r of Cu stoms Broker ’s License

Revocation of Byung Wu Lee (“ALJ Decision”) ¶ 10. After considering the applica ble laws and

regula tions, Custo ms issued a Notice of Penalty for $30,000 dated

January 12, 1993 (the “$30,000 Penalty Notice ”). A. R. 17 at 34. In the absence of any submission or other resp onse from Mr. Lee, that d eterminati on was deemed t o be the agency’s final det erminatio n (“Fi na l Determination II ”). ALJ Decision ¶¶ 11, 23.Court No. 97- 12-02192 Pag e 5

Customs sent demand letters in March, April and Ma y 1993. A.R. 17 at 39, 46, 53. Customs’ final d eman d for payme nt, dated December 15, 1993, offered to e xplore settlement possibilitie s. A.R. 17 at 60. The letter also warned Mr. Lee that, absent a re sponse by Dec ember 24, 1993, the matter would be forwarded to the Justice Department for c ollection and action might be taken ag ainst his broker’s license. Id. Mr. Lee failed to pay the pena lty or otherw

ise resp ond to Customs’ letter. ALJ Decision ¶ 25.

C. The Collection Action and The License Revoc ation Proceeding Seeking to collect the $30,000 penalty, the Justice Department brought suit aga inst Mr. Lee in this Court. The collection action, captioned Unite d States v. By ung W u Lee , Court No. 95-08- 01075, was filed August 23, 1995. See A.R. 23. In parallel with the Justice Departm ent’s pr osecutio n of the c ollection action in this forum , Customs took action at the administrative level, commencing preliminary proceedings to revoke Mr. Lee’s broker’s license , based o n his failu re to time ly

pay the asse ssed penalties. The Commissioner of Customs approved the initiation of those p roceed ings on D ecembe

r 7, 1995, pursuant

to 19 C.F.R

. § 111.53(c), which authorizes license suspensio n or rev ocation proceedings where a broker has “violated any provision of any

law enforced by

Customs or the rules or regulations issued under any such prov ision.” A. R. 28; see also 19 C.F.R. § 111.53(c) (1995). Customs issued a Notice of Preliminary Proceedings and a

Proposed Notice to Show Cause and Statement of Charges (“Proposed Notice to Show Cause”) on December 27, 1995. See A.R. 26 at 1; A.R. 27 at1. The Pro

posed Not

ice to Show

Cause inf ormed Mr . Lee

of the ch arges

agains t himCourt No. 97- 12-02192 Pag e 6

in two specifications. A.R. 27 at 2. Specification I concerned Mr. L ee’s failure to pay the mitigated penalty of $250 within 60 days of Customs’ Final Dete rmination I, issued October 10, 1991; Specification

II concerned

his failur

e to pay the $30,0 00 penalt

y within 60 days of Customs’ Final Det erm in ati on II, is sue d J anu ary 1 2, 1 993 . In both instances, the failures to make timely payment were cited as violations of 19 C.F.R. §§ 111.29 and 111.94. The Proposed Notice to Show Cau se noted that – alm ost th ree years aft er C ust om s’ F in al D ete rmi nat io n II – Mr. Lee still had not paid the $30,000 penalty. Id. By letter from

counsel dated January

29, 1996, Mr. Lee reque sted that the license revocation proceeding

be held in abey ance pending resolution of t he collection action. A.R. 25. Cus toms denied the request for an abey

ance, but granted Mr. L ee additional time to respond to the proposed charges in the revocation proc eeding. A.R. 24. In a March 4, 1996 submission, Mr. Lee argued that the statute of limitations had expired for the violations which are the basis for Specification I , and that Specification II

was “covered” by

the $30,00 0 collect ion action he was then contesting. A.R. 20. The submission also incorporated by reference Mr. Lee’s answer , affirmative defenses, and response to the r equest for admissions filed in the collection action. A.R. 21-22. In a supplemental submission dated May 13, 1996, M

r. Le e argu

ed that Cus toms could not proceed in a revocation act ion be cause it was already suing him to collect a penalty based on theCourt No. 97- 12-02192 Pag e 7

4 The Government, in its discretion, dismissed the collection action in May 1997. A.R. 3. same facts. A.R. 19 at 1. The Commissioner of Customs rejected that argument and authorized the institution of formal revocation proceedings on June 14, 1996. 4 A.R. 18. The formal r

evocati on proce edings c ommenced on August 13, 1996 , with Customs’ issuance of a Notice of Revocation Proceedings and a Notice to Show Cause and Statement of Charges (“Notice to Show Cause”). See A.R. 16; A.R. 17. Among other things, those documents informed Mr. Lee of his rig ht t o file an a nswer to the charges, his right to be r epresented by

counsel at the formal revocation proceedings, a nd his right to cross-examine witnesses. A.R. 16 at 1. D. The Administrative Hearing and The De cision of the Secretary The license revocation hearing was conducted before an administrative law judge (“AL J”)

on Sep tem

ber 11, 199 6. A

LJ Decision ¶ 5. In his Recommended Dec ision and Order dated December

16, 1996, the ALJ made findings of fac t and drew conclusions of law con cernin g both Specifications I and I

I, as well as the non-pay

ment of penalties. See gen erally ALJ Decision. Based on the re cord dev eloped be fore him, the AL J found that

Mr. L ee was o n notic e that he owed the $250 penalty assessed against him on October 10, 1991, b ut chose not to pay or otherwis e resolve it. AL J Decision ¶ 24. The ALJ further found that Mr. L ee did not resolve the $250 pe na lt y un ti l J an ua ry 1 99 3 – we ll mo re th an 60 da ys following Customs’ Final Determination I, and only after

a number of deman ds had issued and the case had been forwar ded to the Justice Department for collection. Id. Based on the record, the ALJ similarly determined that Mr. Lee

was on notice that he owedCourt No. 97- 12-02192 Pag e 8

5 The Secretary ’s decision – entered on his behalf by the Acting Deputy

Assistant Secretary for Regulatory , Tariff & Trade Enforcement – is included as an Addendum to the certified list filed with the agency

record pursuant to U.S. CIT Rule 72(a)

. the $30,0 00 penalt

y a ssessed o n January

12, 1993, b

ut agai n chose not to make timely pay

ment or otherwis e resp ond to Customs or resolve the penalty, which – a s the ALJ noted – still remained unpaid. Id . ¶ 25. The ALJ therefore concluded tha t Customs had met its burden of proof t o establish t he allege d violation s. Specif ically , he dete

rmined tha

t: [Customs]

. . . p ro ve d b y a preponderance of the evidence that Mr. Lee twice violated 19 C.F.R. § 111.29 as set forth in Violation I, Specifications I and II of the Charge s; and

. . . twice vi olated 19 C.F.R. § 11 1.94 as se t forth in Violation II , Specifications I and II of the Cha

rges. Id. ¶ 26. The ALJ further noted: Warning notices of a variety of deficiencies were issued to Mr. Lee . Alt hough informed in each letter that he could c ontact t he broker compliance unit, Mr. L ee failed to respond in any wa

y to any of these notice s. Mr. Lee’s continued cour se of ignoring and disre gardin

g the Cus toms Servic e when pr oblems we

re broug ht to his attention, as evidenced by the three warning

notices and his action regarding the two penaltie s, demonstrates gross irresponsibility in the performance of his duties. The evidence also demo nstrates that he f

ailed to im

p rov e his per

formanc e despite repeated communications from Customs and the imposition of disciplinary measures including monetar y pe nalties. Id

. ¶ 27 (citation omitted). The ALJ therefore re commended that Mr. Lee’ s li cen se b e re vok ed. ALJ Decision at ¶ 29. The Secretary

of the Treasur

y adopted the ALJ’s recommendation and revoke d Mr. Lee’s license on September

16, 1997. 5 The Commissioner of Customs notified Mr. Lee of the Secretary ’s decision by mailing a N otice of Revocation to Mr. Lee on N ovember 3, 1997. See Lett er to P

.Court No. 97- 12-02192 Pag e 9

6 Under 19 U.S.C. § 1 641(e)( 1), a dec ision by the Secr etary to revoke

a customs

broker’ s license may be appealed by commencing

an action in this Court “within 60 days after the issuance of the decision or order.” 19 U.S.C. § 1641(e) (1994). See also 28 U.S.C. § 2636(g) (barring action to contest denial or revocation of broker’s license unless commenced in accor dance with CIT Rules within 60 day s after d

ate of entry of Sec

retary ’s decision or order). However, there are conf licting statutory provisions as to precisely how a n action is commenced. See general ly Defendant ’s Supplemental Submission at 1-5. Under 19 U.S.C. § 1641(e)(1), an action is commenced by the f iling of “a written petition,” a copy of which is to be “ transmitted promptly by

the clerk of the court to the Secreta ry or his designee.” In contrast, 28 U.S.C. § 2632(a) requir es the concurrent filing with the Cou rt of “a summons and complaint,” which must then be served upon the Government

in accor dance w ith U.S. CIT Rule 4(i). Recognizing the statutory inconsiste

ncy , the Prac

tice Comme

nt to U.S. CIT Rule 3 advises th a t the “preferred procedur e to achieve uniformity

and consistency a

nd to minimize the ambiguity . . . is to follow the provisions in Title 28.” Under 19 U.S.C. § 1641(e)(1), Mr. Le e had until January 2, 1998 – 60 days from Nove

mber 3, 1997 – to file a petition appealing the revocation of his license. On December 31, 1997, he filed a “Petition f

or Review

” and a “ Summons” w ith the Cour t. There is no docke

t entry to indica te whether the Clerk of the Court transmitted a copy of the

petition and summons to the Secretary. O n February 3, 1998, c ounsel fo

r the Gov ernment

wrote to c ounse l for M r. Lee, acknow ledging the filing of the pe

tition and s

ummons with

the Court b

ut noting that Mr. L ee had f

ail ed to serve the United States as require d by

U.S. CIT Rule 4(i). See Lette r to P. Herrick from A. Lee (Feb. 3, 1998), attached to Defendant’s Supplemental Submission. At some point thereafter, the office of the Clerk of the Court advised M

r. Le e’s coun sel of the

need to f ile a summo ns and co mplaint an d to prope rly serve t he United States. However, Mr. L ee’s petition (filed on December 31, 1997) was ne ver rejected by

the Clerk of t

he Court. Mr. Lee filed his summons and complaint on March 10, 1998, and served them on the United States two day s later. See Defendant’s Supplemental Submission. Mr. Lee’s petition and summons were timely filed under 19 U.S.C. 1641(e)(1 ); but the summons and complaint filed on March 10, 1998 were not. I n any event, un der the c ircumsta

nces, Herrick fromDeputy

Assistant Secretary

of Treasury

(Dec. 21, 1997) (advising of mailing of N otice of Revocation), attached

to Lette r from P. Herric k to Court (March 21, 2002) and Defendant’s Supplemental Submission A s Requeste d By The Court (Mar ch 22, 2002) (“Defendant’s Supplemental Submission”). Mr. Lee filed this action to appea l the Secretary ’s decision. 6Court No. 97- 12-02192 Pag e 10

the Government has not interposed a statute of limitations defense. Id . Accordingly , the Court may properly re ach the merits of the case.

7 As discussed in sec tion I II .A immediately below, Mr. Lee has also asserted a claim for damage s. II. Jurisdiction and Standard of Review Jurisdiction in this matter is predicated on 28 U.S.C . § 1581(g), which accords the Court exclusive jurisdiction over any action contesting the revocation of a customs broker’s license. See also 19 U.S.C. § 1641(e). Mr. Lee seeks to have the decision of the Secretary of the Treasury

revoking his license set aside. See Complaint. 7 However, in a case such as this, the Court’s role is limited. “[T]he Court may not substitute its judgment for that of the agency ,” but rather is only to “a ssure itself the decision

was rational and based on consideration of relevant factors.” Barnhart v. U.S. Treasury Dep’t , 9 C IT 287, 290, 613 F. Supp. 370, 374 (1985). Thus, the Court may not second-g uess the agency ’s choice of sanctions: “When the penalty chosen by an agency

is within the range of sanctions provided by applica ble disciplinary

regulations, the severity

of the sanction imposed

is within the discretion of the ag en cy. ” Id . at 291, 613 F. Supp. at 374 ( quoting Tempo Trucking and Transfer Corp. v . Dickson , 405 F. Supp. 506, 514 (E.D.N.Y. 1975) ) (citation omitted). In short, the Secretary ’s decision here must be affirmed unless the underly ing findings of fact

are unsuppor

ted by substantia

l evidenc e on the r

ecord, o r unless th e decisi on is arbitra ry , capric ious,

anabuse of discretion, or otherwise not in accordanc e with law. See 5 U.S .C. §§ 706(2)(A), 706(2)( E); Tarnove v. Bentsen , 17 CIT 1324 (1993).Court No. 97- 12-02192 Pag e 11

III. Analysis A. Availability of Damag es In addition to the restoration of his broker’s license, Mr. Le e also seeks unspecified damages fromthe Government. See Complaint ¶ 63; Plaintiff’s Motion on the Agency Record to Set Aside the Secretary

of the Treasury ’s Revocation of His Customs Broker’s Lic ense at 1; Plaintiff’s Brief in Support of His Motion on the Agency Record to Set Aside the Sec re tary of the Tr easury’ s Revocation

of His Customs Broker’s License ( “Plaintiff’s Brief”) at 1, 11. However, the claim for damage s is bey

ond the jur

isdiction o f the Cour

t. It is axiom atic that

“ ‘[t]he Un

ited State s, as sove

reign, is immune f

rom suit sa

ve as it consents to be sued

. . ., and [that] the terms of its consent to be sued in any court de fine that court’s ju risdicti on to entertain the suit.” United Sta tes v. Mitc

hell , 445 U.S. 535, 538 (1980) ( quoting United States v. Sherwood , 312 U.S. 584, 586 (1941) ). Accord United States v. Boe , 543 F.2d 151, 154-55 (C.C.P.A. 1976). See also Fed. Deposit Ins. Corp. v. Mey er , 510 U.S. 471, 475 (1994) (“[s] overei gn immunity

is ju ris di ct io na l i n n at ur e” ). Mo re ov er , a wa iv er of so ve re ig n i mm un it y

“ ‘cannot be implied

but must be unequ ivocally expressed.’ ” Mitchell , 445 U.S. at 538 ( quoting United States v. King , 395 U.S. 1, 4 ( 1969) ); see also Lane v. Pena , 518 U.S. 187, 192 (1996) (waiver of sover eign immu

nity “must be u

nequivoc ally

expre ssed in statutory text” and will be “strictly construed, in ter

ms of its scope, in favor of the sovereign”) ( citations omitted). The Court’s jurisdiction in this case rests on 28 U.S.C. § 158 1(g) a nd 19 U.S.C. § 1641(e), which extend only to the review of the Sec reta ry of the Tr

easury’ s decision revoking Mr. Le e’s license. And Mr. Lee has identified no othe r statute w

here the United Sta

tes has wa

ived itsCourt No. 97- 12-02192 Pag e 12

8 Indeed, since Mr. Lee elected not to file a reply brief, h e made no

response whatsoe ver to the Government’s jurisdictional argument. See Memoran dum in Support of

Defend ant’s Res ponse in Opposition to Plaintiff’s Motion on t he A gency Record to Set Aside the Secretary of the Treasury ’s Revocation o f His Customs Broker’s Lice nse (“De fendant ’s Brie f”) at 1 1-12 (se tting fo rth Government’s jurisdictional argument). immunity from liab ility

for damages in circumstances such a s these. 8 Accordingly , Mr. Lee’s claim for damages must be dismissed for want of jurisdiction.

B. Statute of Limitations As a thresh old matter , Mr. L ee conte nds that th e revoc ation of h is license is invalid because the revocation proceeding was initiated more than five y ears after the asserted violations. Plaintiff’s Brief at 4-6 . He argu es that the proceeding was there fore barred by the statute of limitations. Id

. The applicable statute of limitations requires that a revocation procee ding such as the one at issue here be

“institute d by

the appr opriate service of written notice within 5 years from the date the alleged violation was committed .” 19 U.S.C. § 1641(d)(4) (emphasis added). 1. Specification I Mr. Lee posits that the statute of limitations for Specification I was trig gered either on December

22, 1989 ( the date of the violation that ga ve ri se to th e $ 1, 00 0 p en al ty, which was later mitigated to $250), or on August 16, 1990 (the date of Customs’ $1,000 Pre -P en al ty Notice). Plaintiff’s Brief at 5. Under Mr. L ee’s reasoning, then, the statute of limitations would have expired five years la

ter, either on December 22, 1994 or on August 16, 1995. Id

. Howeve r, his posi tion is at odds with both the facts and the law.Court No. 97- 12-02192 Pag e 13

9 Mr. Lee mistakenl

y c laims that the Governm ent conte nds that “the statut

e of limita tions did not begin to

run until Jan

uary 13, 1993 w

hen L ee paid t

he pena lty [i n itially $1,00 0, mitiga

ted to $250] as part o f an off

er in compr omise.” Plaintiff’s Brief at 6. The Government does not asser t that th e s ta tu te of

li mi ta ti on s w as tr ig ge re d w he n M r. Lee fi na ll y (b el at ed ly) paid the p en al ty. Rat her, as discussed above, the Government’s point is that the statute began to r un when th e violation at issue in the revocation proceeding occ urred – that is, when the payment became overdue , when the penalty

was not paid within 60 days of its assessment. De fendant’s Brief at 13-14. The violations at issue in t he revo cation proceeding were Mr . Lee’s failures to timely pay assessed penalties – not the under lying viol ations which resulted in those penalties (such as the December

22, 1989 violation) . Moreove r, the 60- day

clock fo r timely

pay ment did no t begin

to run until Customs issued its “final determination.” 9 19 C.F.R. § 111.94. Thus, the violation detailed in Specification

I in the revocation

proceeding did not occur until December 9, 1991 – when Mr. Lee failed to pay the mitig ated penalty

within 60 da

ys a fter Cust oms’ Octo

ber 10, 1 991 issuan

ce of its Final Determi

nation I . Customs the

refore had until December 8, 1996 to institute a revocation procee ding. See generally Defendant’s Brief at 13-14. The Proposed Notice to Show Cause, dated December

27, 1995, i ssued alm ost a full y ear bef ore the s tatute of limitations expired. Id .; see also Defendant’s Supplemental Submission at 5-6.

2. S pec ifi cat io n II Alth ough he offers no argument on the point, Mr. Lee also makes the conc lusory assertion that “[t]he statute of limitations has expired regarding Specification I I.” Plaintiff’s Brief

at 8. That position too finds no support in the record. When Mr. L ee faile d to respo nd to Cu stoms’ $30, 000 Penalty Notice (da ted January 12, 1993), that notice became C ustoms’ fi nal determination. ALJ Decision ¶¶ 11, 23. Thus, theCourt No. 97- 12-02192 Pag e 14

10 Asserting that “Mr. Lee . . . never r aised this issue in the admin

istrative procee dings he ld below,” the Gove

rnment a rgues t hat “ this n ewly introduced a rgument is not properly

considered” by the Court. According to the Government, “Customs, [the ALJ], and the Secretary of Tre asury were deprive d of the op

portunity to consider such argument which in turn prevents this Court from considering Mr. Le e’s position.” See Defendant’s Brief at 20, citing United States v. L.A. Tucker Truck Lines, I

nc. , 344 U.S. 33, 37 (1952). Contrary to the Gov ernment ’s asser tions, Mr. Lee ’s counse l in fact did al lude to this argument in the course of the administrative hearing. F or example, in his opening argument, counsel for Mr. Lee asserted that “[t]he forum that [Mr. Lee] chose to defend himself was in cour t, not during the administrative proceeding.” A.R. 14, Administrative Hearing Transcript

(“Tr.”) at 10. See also Tr. at 37 (Mr . Lee ’s counse l querie d, “Why would tha

t be absur d if somebod y wants to choose a violation detailed in Specification II in the revocation proceeding occ urred on March 15, 1993 – when Mr . Le e f ai le d t o p ay t he $3 0, 00 0 p en al ty w it hi n 6 0 d ays after January 12, 1993. Customs then had five yea rs from March 15, 1993 – until March 14, 1998 – to in stit ute a re vocat ion p roceed ing. See generall

y Defendant’s Brief at 14-15. The Propo sed Notic e to Show Ca use prec eded tha

t date by more than two y

ears. Id .; see also Defendant’s Supplemental Submission at 5-6. In short, Mr. L ee has no statute of limitations defense.

C. Ri gh t t o J ud ic ia l R ev ie w o f t he Leg al it y of A P en al ty Mr. Lee also contends that Customs’ action in seeking revocation of his license for his failure to timely pay assesse d penalti es effe ctively deprive d him of his r

ight to se ek judici al revie

w of those penaltie s. Plaintiff’s Brief at 6-7. Mr. L ee asse rts that “ [t]he o nly

cour se of acti on [op en to him] .

. . to prove he did not owe the penalty was to be sued by

United States in a collection action.” Id

. at 7. But, he claims, the Government’s po si ti on me an s t ha t “ if a c us to ms br ok er . . . f

ai ls to pa y a penalty timely by c hoosing to be sued for the penalty

, such bro ker is au

tomatica lly s ubjectin g himsel f to revocation of his license.” Id

. 10Court No. 97- 12-02192 Pag e 15

judicial forum rather than an administr ative fo rum to con

test penalty issues?”). Similarly , Mr. Lee’s post-hearing

submission argued that he “chose to challeng e the Customs penalty de cisions by not paying the pena lties.” A .R. 4. Howe

ver, Mr. Lee ’s c ounsel did not develop the argument in the course of the hearing, the Gove rnment did not respo nd to it, an

d Mr. L ee ga

ve no test

imony to support it. Indeed, Mr. Lee testified that his failure to pay wa s for other reasons. For example, when questioned

why he did not pay

the $1,000 penalty, Mr. Lee replied that he didn ’t think he ow ed $1,000. Tr. at 210. When asked why he paid the mitigated

penalty of $250, Mr. Lee responded tha t he “didn’t want to go through all the hassles . . . That’s the re ason why I pa id. It ’s not bec ause I fe lt I had to pay.” Id. at 211. When asked why he did not pay the $30,000 penalty, Mr. Lee answered, “F ir st of al l, I do n’ t t hi nk I ow e $ 30 ,0 00 . A nd se co nd ly, I have no [financial] capabilities.” Id. at 220. In s ho rt , n ot hi ng in Mr . Le e’ s t es ti mo ny s ug ge st ed th at he in te nt io na ll y fa il ed to pa y t h e penalties to preserve his right to judicial review. Nor did Mr. Lee make such a n argument to Customs at any time prior to the administrative hearin g. However, there is no indication in the record of the hearing that the G overnment objected to the argument on that

basis. And Defendant’s Brief here does not specifically a

ddress whether Mr. Lee was free to raise the arg ument for the f

irst ti me at the hearing, and – if not – what the consequences are, particularly where the Government did not object at the time. In any event, it is not nece ssary

to definit ively resolve whether or not Mr. Lee ’s arg

ument is properl y before the Court, because – fo r all the reasons discussed herein – that arg ument has no merit. Mr. Lee asserts, in essenc e, that he was confronted by a Hobson’s choice: He could either (1) timely tender p ay

ment of a penalty he consi dered u njus t and f orever waive his ri ght to chall enge the legality of

the penalty; or

(2) put his license on the line by failing to pay within 60 day

s, in order to preserve his ability to c hallenge the legality

of the penalty whe

n a collection action

was brou ght. But in fact Mr. Lee ’s options were not nearly so bleak. The grava men of Mr . Lee ’s arg

ument is that a cu stoms brok er must be able to obtain judicial review of the le gality

of a pena

lty w ithout jeop ardizing

his licens e. A brok

er’s rig ht t o judicial review of a penalty a ssessed against him is settled law. See Unit ed States v. Ricci , 21 CIT 1145,Court No. 97- 12-02192 Pag e 16

11 T he Pen tax cases concerned an importer’s liability for duties and penalties for the importation of photographic and optical mercha ndise which was produced in China but marked

“ Hong Kong,” in violation of the “country of origin marking” requireme nts of U.S. custom s law

. See generall

y 19 U.S.C. § 1304(a) (1988). To minimize its liability for penalties, Pentax made a “prior disclosure” to Customs, reporting its misstate ments concerning the merchandise’ s country of origin

. To secure “prior disclosure” treatment, a n importer must: (1) voluntarily disclose i t s viol ation “before, or without knowledge of, the c ommencement of a formal investigation of suc h 1148, 985 F. Supp. 125, 128 (1997) (while agency decision concer

n ing mitig ation of p enalty is b eyond judicial review, “[t]his does not prevent a broker from challeng ing the legality of the underlying

penalty” in cour

t). Howeve

r, Mr. L ee has c ited no au thority to sugg est that a

broker i s entitled to sit on his rights, as Mr. Lee did here. Indeed, as t

he Gover nment obse

rves, Mr . Lee ’s action s at the tim e belie h is prese nt claim “that he intentionally refr

ained from

pay ing the p enalt[ies ] in order to obtain judicial review.” See Defendant’s Brief at 22. Certainly nothing in Mr. Lee’s correspondence with Customs concerning the $1,000 penalty (eve

ntually mitigated

to $250) hinted

at such a n intent. B ut most telli

ng was h is response when Customs referred the matter to the Justice Department for co llection. R ather than seeking to seize on the threatened collection action as an opportunity to argue his case in a judicial forum(his purported objective), Mr. Le e instead chose to pay the penalty to avo id litigation. On those fa cts, Mr. Lee simply

cannot now claim th at he wa s deprive d of his rig hts. Si mi la rl y, Mr. Lee ga

ve Customs no indication t hat he was intentionally re fraining from paying the $30,0 00 penalt

y in order to obtain judicial review. As discussed in section I.B above, Mr. Lee “stonewalled” Customs – ignoring the agency for the 60-day

period and beyond, e

ven after he

was expressly warned tha t a failure to r espon d might lead to license revocation proceeding s. See also A.R. 17 at 6 0. This ca se is thus rea dily distingu ished fr om Pentax , on which Mr. Lee relies. 11Court No. 97- 12-02192 Pag e 17

violation,” and (2) p ay

Customs the “actual loss of duties” suffered as a result of the violation. See 19 U.S.C. § 1592(c)(4); 19 C.F.R. §§ 162.74(a)(1), 162.74(h). The phra se “actual loss of duties” is defined as “the duties of which the government has been depr ived by rea son of the violation.” 19 C.F.R. § 162.71(a)(1). Pentax interp reted “ actual loss of duties” under these circumstances as me aning the difference between (1) the true duty liability based upon the true country of orig

in and (2) the d uty liability based upon the state country of origin. Since the duty liability for the merchandise at issue was precisely the

same whether it was imported from China or Hong Kong, Pentax contended that it was not obligated to advance any additiona l funds to s ecure prior disc losure tr eatment. Customs maintained

that “actual loss of duties” included “marking duties,” which ar e imposed

for fail ure to properl y mark merchandise with its country of origin. See 19 U.S.C. § 1304(f); 19 C.F.R. § 134.2. But Pentax rea soned tha

t unpaid ma

rking du ties did no t constitut

e an “actual loss of dut

ies,” be cause a marking duty is a spec ial ad valorem duty that is not “ lost,” but

rather arises as a result

of a country of ori gin mi s-mar king. Pentax sought pre-enforcement re v iew of Customs’ position in federal district court. See Pentax Corp. v. Myhra , 844 F. Supp. 611 (D. Mont. 1994), aff’d , 72 F.3d 708 (9 th Cir. 1995). The district court dismissed the case, finding that Cong ress intended to preclude interlocutory judicial review of such a n interim agency decision. However, the district court granted Pentax’s motion for a preliminary injunction

pending review on appeal, on the condition that Pentax deposit funds in the court’s regist

ry sufficie nt to cove

r the mar king duti e s until the “actual loss of duties” issue was resolved. Pentax depo sited the f unds, and filed an appeal i n the Ninth C ircuit Cou

rt of Appe als. Id

. The Ninth Circuit affirmed the district cour t’s di smissal of the suit, holding that the district court lacked subject matter

jurisdiction and that “if judicial review is availa ble at all , [it] is avail able only in the Court of International Trade .” Pentax , 72 F.3d 710-11. Pentax’s case wa s then tra nsferr ed to the Co

urt of I nternat ional Tra de, along with the funds Pentax had deposited in the registry of the district court. Fol l owing Customs’ issuance of prepenalty and pena

lty n otices (w hich Penta

x declined

to answe

r), the G overnme

nt in it iated an enforcement

action in the Court of International Trade , seeking to recover duties and penalties. After consolidating that action with Pentax’s suit, the Court of Inter na tional Tr

ade uphe ld Customs’ determination

that the “actual loss of duties” included marking duties. Pentax v. Robison , 20 CIT 486, 924 F. Supp. 193 (1996), rev’d , 125 F.3d 1457 (Fed. Cir. 1997). The Court of Appeals for the Federal Circu it rev ersed, hold ing th at the act of m ismar king the goods had not deprived the government

of mark ing dut ies. Thus, payment of mismarking duties was not required for prior disclosure treatment. Pentax ,125 F.3d at 1462-63. See Plaintiff’s Brief at 3, 7. While Mr. Lee here sat mute, the importer in Pentax affir mativel y “informed Customs that they would ‘not make any written or or

al presentation in response to the

.Court No. 97- 12-02192 Pag e 18

12 Citing Jose G. Flores, Inc. v. United States , 11 CIT 948, 676 F. Supp. 1232 (1987), Mr. Lee argue s that, ha

d he paid the assessed penalties and then filed for a ref und, “this court [the Court of International

Trade] would lack jurisdiction to make such a refund.” Plaintiff’s Brief at 7. However, even assuming that this Court would lack jurisdiction over a broker-initiated suit to recove

r a pena lty imposed on that broker, nothing in Flores speaks to the jurisdiction of other federal courts such as the distri ct court s and the C ourt of F ederal Claims.

1 3 See Defendant’s Brief at 21 n.9 ( discussing potential availability of Trayc o -type pro ceedin g, to secure judicial review of penalty imposed on broker ). In Trayc o , an impor ter file d suit in

district court seeking a refun d of a mitig ated penalty

paid unde

r protes t to Customs. The Court of Appea ls for the Federal Circuit affirmed the district court’s de cision, which rejecte d th e government’s argument that the Court of

Inte rnati onal Trade had exclusive jurisdiction over such matters, and found that there was no legal basis for the pe nalty. Trayc o , 994 F.2d 832 (Fed. Cir. 1993). . . prepenalty notice s.’ ” Pentax Corp. v. Robison , 20 CIT 486, 489, 924 F. Supp. 193, 196 (1996), rev’d , 125 F.3d 1457 (Fed. Cir. 1997). In short, the

facts of this case do not support Mr. Lee’s depiction of himself a s a man on the horns of a dilemma. N or is the a sserted dilemma a s Mr. L ee sug gests. Impli cit in Mr. L ee’s ar

gument i s the assu

mption that

a broker cannot ti mely pay a penalt y and nevert heles s chal lenge its legality in an actio n to re cover t he mon ies pa id. Ho wever, by analogy to Trayc o, Inc. v. United States , 994 F.2d 832 (Fed. Cir. 1993), a broker conceiva bly could tender timely pa yme nt un de r p ro te st , s pe ci fi ca ll y re se rv in g h is ri gh t t o c ha ll en ge th e l eg al it y of th e p en al ty, and t hen bring an action for a ref und, either in federal district court or in the Court of Fede ral Claims. 12 See Trayc o , 994 F.2d at 835 (noting that importer’s cover letter ind icate d payment was being made “under protes t res erving all rights to judicial review following the exhaustion of the administrative remedie s”). 13 See also 28 U.S.C. § 1346(a)(2) (concurrent jurisdiction of district courts and U.S. Court of Federal Claims under “L ittle Tucker Act”); 28 U.S .C. § 1491(a)(1) (jurisdiction of U.S. Court of Federal Claims under “Tucker Ac t”).Court No. 97- 12-02192 Pag e 19

14 Un ited States v. Ricci , 21 CI T 1145, 985 F. Supp. 1 25 (1997)– on which Mr. L ee so heavily relies ( see Plaintiff’s Brief at 1-6, 9, 11) – is illustrative. In Ricci , a broke r failed to pa y a $30,000 pe na lt y, which Customs sought to recover in a collection action in the Court of International Trade. As Mr. L ee empha sizes ( see Plaintiff’s Brief at

1-4), Customs did not there seek to revoke the broker’s license. But, in that case, the broker had responded to Customs’ notices. See Ricci , 21 CIT at 1145, 9 85 F. Supp . at 126 (n oting tha t broker had resp onded to Customs’ prepenalty notice and had continued communication with agency ). The action of the broke r in Ricci thus stand s in starkcontr ast to Mr. Lee’s inaction here , and rendered that broker elig ible for more favorab l e treatment under the Customs Directive. The other “horn” of the asserted dilemma assumes that any failure

to tender timely pay

ment

necessa rily imperils a

broker’ s license

– even if pay ment is withheld for the purpose of preserving the broker’s right to judicial review of the leg ality of the penalty

. However, by analogy to Pentax (discussed

above), a broker conceivably could withhold payment of a pe nalty (possibly

depositing the funds in e scrow), timely notify Customs tha

t he is doin

g so to en sure tha

t his right to judi cial review is pr es er ve d, an d t he n c ha ll en ge th e l eg al it y of th e p en al ty when a collec tion actio n is brought. See Pentax , 20 CIT at 489, 924 F. Supp. at 196, rev’d , 125 F.3d 1457. Neither of these paths has ye t been de finitivel

y e stablishe d as a

proper means of vindicating the settled right of a bro ker to ob tain judic ial revie w of the le gality

of a pena

lty. But a Cust

oms Directive has made it clear that a broker’s failure to timely pay

a penalty will not res

ult in li cense revocation

pr oceedi ngs where th e broker is contes ting the

penalty in good f

aith and i n a timely fashion. 14 See A.R. 29, Customs Directive No. 099 3530-007 (Aug. 11, 1992). Sp ec if ic al ly, that Customs Directive notes that, “[b]ecause of the brokers’ integral role in the conduct of Customs business, a high standard of broker performance is critical to the ef ficiency of the Customs Service and the accomplishment of the customs mission.” Id . a t 1. The Directive continue s:Court No. 97- 12-02192 Pag e 20

8. SUSPENSI ON/REVOCA TION POLI CY Penalties issued to brokers under 19 U.S.C. § 1641 that remain unpaid can b e considered

the basis of suspension or revoc ati on proceedings against the broke r’s license. As a matter of p olicy, Cus toms will not institute s uch proc eedings a gainst a broker who actively

contests a monetar

y penalty by raising

legal or factual issues on a timely

basis and in the app ropriate

forum. However

, the license of a broker who simply refuses to pa

y withou t raising a substantive legal or factual issue in a supplemental

petition concerning

the penal ty is subject to revocation or suspension

. Id . at 5-6 (emphasis added). In sum, ther

e is no tru th to Mr. L ee’s cl aim that “ if a custo ms broker . . . fails to pay a penalt y tim ely by c hoosing to be sued

for the p enalty , such bro ker is au tomatica lly s ubjectin g himse lf t o revocation

of his license.” Plaintiff’s Brief at 7. The dilemma that he posits doe s not exist. Ul ti ma te ly, Mr. Lee’s undoing w as not his failure to pay, but his silence . Neither the law nor the facts of this case sugge sts that he

was depr ived of a ny o f his rig

hts.

D. “Elec tion of Rem edies” Characterizing the Secretary ’s decision as an attempt to “bootstrap” a penalt y into grounds for revoking his license, Mr. L ee contends that – with respect to Specification II – the Government “had a choice between assessing a penalty or

to institute a license revocation proceeding.” Plaintiff’s Brief at 3, 7-8. In e ssence, he arg ues that th e Gover

nment ca nnot both a ssess a

pe na lt y and revoke his license. In support of

this varia tion on an “ election

of reme dies” de fense, M

r. Le e cites A

ppendix C to 19 C.F.R. Part 171. Appendix C pro vides (in pertinent part): “Assessment of a monetary penalty is an alternative sanction to revocation or suspension of the broker’s license or pe rmit.” See Plaintiff’s Brief at 8, quoting 19 C.F.R. Part 171, App. C (1995) (emphasis added).Court No. 97- 12-02192 Pag e 21

15 See , e.g. , section II I.B, supra (addressing defects in Mr. L ee’s statute of limitations argume nt, which similarly fails to differ enti ate between grounds for imposition of underlying penalties and distinct (albeit related) grounds for r evocation of license). Mr. Lee’s char

ges of “bootstrapping” are unfounded. Again, as elsewhere , 15 he fails t o

reco gniz e “that the reasons for the penalties and the reasons for the revocation of license are different and separable.” Defendant ’ s Brief at 16. The $30,000 penalty was imposed for the numerous violations identifie d in

Customs’ March 1992 audit. The license revocation proce eding was based on Mr. Lee’s failure

to timely pay

that penalty (and a

n earlier one). Mr. Lee ’s relia

nce on Ap

pendix C to 19 C.F.R. Part 171 is similarl y unavailing . Appendi

x C’s reference to an “alter

native sanction

” conce rns Customs ’ choice of remedy for a single violation. Becau se Customs in th

is case s ought different

remedies for different

violations , Appendi

x C is simply inapposite. According ly, Mr. L ee’s “election of remedies” ar gument must be rejected. E. Penalty as “De

bt” or “Obligation” Owed to Government In yet another

attempt to

undermine the license revocation determination, Mr. L ee challenges the AL J’s determ

ination tha

t his failure to timely pay

penalties constitutes a breach of 19 C.F.R. § 111.29. See Pl ain ti ff’ s Br ief at 9 -10 (di scu ss in g ALJ Decision ¶ 21). As discussed above ( see n. 1), § 11 1. 29 re qu ir es th at an y “ debt or obligatio n owing to the Gove rnment fo r which th e broker

is responsible” be paid “on or be fore the date tha t pay ment is due .” 19 C.F .R. § 111.2 9 (empha sis added). Specific ally , Mr. L ee conte nds that th e penalt

ies asse ssed ag ainst him

were not “debt[s] or obligation[s]” within the meaning of § 111.29. Plaintiff’s Brief at 9-10.Court No. 97- 12-02192 Pag e 22

16 Mr. Lee cites two case s in support of his claim t

hat “a c ivil pena

lty d oes not be come fin al, due and owing until such time ‘that all available defenses may be pres ente d to a competent tribunal.’” Plaintiff’s Brief at 9 ( citing Nickey v. Mississippi , 292 U.S. 393, 395 (1934) and United States v. KAB Trade Co. , 21 CIT 297 (1997 ) ). Howe ver, he f ails to disc

uss eithe r case, and both appear to be completely inapposite. See generally Defendant’s Brief at 18-20. Mr. L ee’s continued reliance on Ricci is equally unava iling. See Plaintiff’s Memo at 9 ( citing United States v. Ricci , 21 CIT 1145, 985 F. Supp. 125 (1997) ). Nothing in Ricci addressed the def initio n of “debt” or “obligation,” and the case has no rele vance here. See Defendant’s Memo at 18 n.6. Neither “debt” nor “obligation” is defined in Customs regulations. Mr. Lee theref ore looks to Black’s

Law Diction ary to define the terms, and selects as the “most appropriate” definition: An obligation or debt may exist by reason of a judg men t as well a s an expre ss cont ract, i n either

case, th ere bei

ng a leg al duty

on the par

t of the on e bound to comply with the

promise . . . Liabilities created by contract or

law (i.e. judgments). Plaintiff’s Brief at 9 ( quoting Bla ck’s Law D ictio n ary (6 th ed. 1990) at 1074). Based on that definition, Mr. Lee reasons that, since he never contracted

with Customs to pay either penalty, the penalties can

constitute “debt[s] or obligation[s]” only if they constitute judgments – which they do not. Plaintiff’s Brief at 9-10. 16 As the ALJ correctly

observed, this argument is simply “specious.” See ALJ Decision ¶ 21. A penalty assesse d again st

a broker is so plainly a “debt or oblig ation owing to the Government for which the broke

r is resp onsible”th at recourse to a dictionary is unnecessary . Indeed, Mr. L ee’s selective citation of definitions is affirmatively misleading – and one need look

no further than

the very authority on

which he relies. The sixth edition of Black’s Law Diction ary

begins its definition of “ob l igation” by

noting that the term is “[a] generic word, . . . having many wide, and va

ried meaning s, accord

ing to the conte

xt in which it i s used.” O ne example of such a meaning is “[t]hat which a person is bound to do or to forbear; any duty imposed by

law, promise, contract relationsCourt No. 97- 12-02192 Pag e 23

of society, cour

tesy, kindness, etc.” See Black’s Law Diction ary

(6 th ed. 1990) at 1074. In short, even if it were necessary to consult a dictionary to deter mine whether a p e nalty constitutes a “debt or obligation” (which it is not), the same dictionary that Mr. Lee ci tes actua lly supports the Government’s position. A penalty assesse d again st a broke

r qualifi es easily

as a “dut y imposed by law,” and thus is a “ debt or obligation” for purposes of 19 C.F.R. § 111.29.

F. Failure to Timely

Pay Penalty

as Basis for Lice

nse Revocation Alth ough the argument is not articulated with precision, Mr. Lee also appear s to conte

nd that, since 19 C.F.R. § 111.94 authorizes the in st it ut io n o f a co ll ec ti on ac ti on fo r f ai lu re to ti me ly p ay a pe na lt y, revoking his license for such a failure constitut es an abuse of

discreti on and is no t in accordance with law. Plaintiff’s Brief at 10. In pe rtinent pa rt, § 111.9 4 provide s: If the final determination is that the person is liab le for a monetary pe

nalty, the person sha ll pay, or make arrangements for payment, within 60 day

s of the date of the fin al d ete rmi nat io n. If the monet

ary penalty is not paid

or arrangements made for payment within the time limitations, the Customs Service shall refer the matter to the Departm ent of Justic e for ins titution of appropr iate judic ial proc eeding s. 19 C.F.R. § 11 1.94. As Mr. Lee corr ectly notes, “[t]here is absolutely no language in this section [to indicate] that if a person does not pay a p en al ty w ithin 60 days after a final determination that such nonpayment cons titu tes gro unds for r

evocati on.” Plain

tiff’s B rief at 1 0. Howev er, his observation misses the mark. The ALJ relied upon § 111.94 only as the ba sis for his determination that a penalty must be paid within 60 days of its assessment. See ALJ Decision ¶ 21. The reme dy o f license revoca tion is authorized

by a diffe

rent provision of the regul ations – 1 9 C.F.R. § 111.53(c). Indeed, Mr . LeeCourt No. 97- 12-02192 Pag e 24

17 As noted

in secti on II above, “[w] hen th e penal ty chosen by an agency is w ithi n the r ange of sanctions provided

by a pplicabl e discipli

nary regula tions, the severity of the sa nction impo sed is within the discretion of the ag en cy. ” Barnhart v. U.S. Treasury Dep’t , 9 CIT at 287, 29 1, 613 F. Supp. 370, 374 (1985) ( quoting Tempo Trucking and Transfer Corp. v. D ickson , 405 F. Supp. 506, 514 (E.D.N.Y. 1975) ) (citation omitted). Thus, the Court is not free to second-guess the ag ency’s choice o f sanctions. concedes as much. See Plaintiff’s Brief at 10 (acknowledg ing that revocation was “pursuant to 19 C.F.R. § 111.53( c)”). I

t is thus of no moment tha t § 111.94 does not mention license revocation. What matters i s that revocation is authorized under § 111.53(c) where, as here, a br oker “has violated any provision of any

law enforced by

Customs or the rules or regulations” issued thereunder. 17 Appare ntly arguing in the alternative, Mr. Lee further contends that “since [he] did not violate sections 111.29 [re quiring

pay ment of de

bts or obligations to the Government “on or before the da te th at pa ym ent is due”] or 111.94 [requiring pay ment of penalties within 60 days],” it was “an abuse of discreti on and not

in accor dance w ith the law

for th e Secretary

to rely on sec tion 111.53(c) to revoke [his] license.” Plaintiff’s Brief at 10. But the prem

ise of tha t argum ent is fau

lty. Contrary

to Mr. L ee’s as sertion, as d iscusse d above, th e ALJ properl

y conclude d that Mr. Lee

violated §§ 111.29 a

nd 111.94 b y f

ailing to timely pay assessed penalties, and the Secretary properly re lied

up on th e A LJ ’s co nc lu si on . A cc or di ng ly, under § 111.53(c), the Secretary was entitled to revoke Mr. Lee ’s license.Court No. 97- 12-02192 Pag e 25

IV. Conclusion For the fore going

reasons , the decision of

the Secr etary to revoke Mr. L ee’s br

oker’s l icense is supported by substantial evidenc e and is othe rw ise in accordance with law. According ly, Mr. Lee’s motion is denied, and the Secre tary’s dec ision is affirmed. Ju dg me nt wi ll be en te re d a cc or di ng ly.

___________________________________ De li ss a A . R id gw ay

Judge Decided: March 29, 2002 New York, New York