                          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).
