                            Slip Op. 04 - 149

            UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - -x

SERGIO U. RETAMAL,                       :

                            Plaintiff, :

                  v.                     : Court No. 03-00613

U.S. CUSTOMS AND BORDER PROTECTION       :
DEPARTMENT OF HOMELAND SECURITY,
                                         :
                            Defendant.
                                     :
- - - - - - - - - - - - - - - - - - -x

                            Opinion


[Defendant's motion for summary
 judgment granted; action dismissed.]

                                             Decided: November 24, 2004


     Sergio U. Retamal pro se.

     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 (Harry A. Valetk); and Office of Associate Chief Counsel,
Customs and Border Protection, U.S. Department of Homeland Security
(Christopher Merrill and Marc Matthews), of counsel, for the
defendant.


          AQUILINO, Judge:     The Tariff Act of 1930, as amended,

requires each person who has been granted a broker's license to

file with Customs on February 1 of every third year a report as to

(a) whether such person is actively engaged in business as a

customs broker; and (b) the name under, and the address at, which

such business is being transacted.    19 U.S.C. §1641(g)(1). Cf. 19
C.F.R. §111.30(d) (2003):
Court No. 03-00613                                          Page 2


     . . . The report must be accompanied by the fee pre-
     scribed in §111.96(d) and must be addressed to the direc-
     tor of the port through which the license was delivered
     to the licensee . . ..     A report received during the
     month of February will be considered filed timely. No
     form or particular format is required.


Subsection (2) of 1641(g) provides:


          If a person licensed under . . . this section fails
     to file the required report by March 1 of the reporting
     year, the license is suspended, and may be thereafter re-
     voked 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.

                                 I

          Comes now the above-named plaintiff pro se, complaining

about revocation of his broker's license "by operation of law on

May 6, 2003", to quote a letter to him from the Customs Interim

Port Director, Los Angeles - Long Beach Seaport, returning there-

with on or about June 5, 2003 his "check . . . and Status Report

that was received on May 28, 2003," a copy of which communication

is appended to the complaint.   This pleading prays that the court

order the defendant to accept that report and requisite $100 fee

and that the revocation be reversed.
Court No. 03-00613                                                  Page 3


            Such relief was not available upon attempted appeal to

Customs headquarters in Washington, D.C.       And its counsel have now

interposed a motion styled as one to dismiss pursuant to Court of

International Trade Rule 12(b)(5) "for lack of subject matter

jurisdiction and failure to state a claim upon which relief can be

granted."    Of course, a motion to dismiss on the ground of lack of

jurisdiction over the subject matter properly lies under Rule
12(b)(1).      Moreover,   the   defendant   has   filed   the   certified

administrative record, and Rule 12(b) states that, if

     on a motion asserting the defense numbered (5) to dismiss
     for failure of the pleading to state a claim upon which
     relief can be granted, matters outside of the pleading
     are presented to and not excluded by the court, the
     motion shall be treated as one for summary judgment and
     disposed of as provided in Rule 56, and all parties shall
     be given reasonable opportunity to present all material
     made pertinent to such motion by Rule 56.


Subsection (h) of Rule 56 provides in turn that, upon any motion

for summary judgment,

     there shall be annexed to the motion a separate, short
     and concise statement of the material facts as to which
     the moving party contends there is no genuine issue to be
     tried.

This counsel for the defendant have not done, nor does the filing

of an administrative record satisfy this requirement.1



     1
         But see 19 U.S.C. §1641(e)(1):

     . . . In cases involving revocation . . . of a license
     . . ., [Customs] shall file in court the record upon
     which the decision or order complained of was entered,
     as provided in section 2635(d) of Title 28.
Court No. 03-00613                                           Page 4

                                 A

            Be this shortcoming as it may, the court reads plain-

tiff's holographic pleading in its most favorable light.      Among

other things, he avers that on April 30, 2003 he prepared his

triennial report, drew a check for $100, and gave them to his

assistant to mail to Customs; that on or about May 21st his

assistant informed him that the report and fee had not, in fact,
been mailed; that on May 24, 2003 both were forwarded to Customs

via certified mail; that on May 28th he was informed via telephone

by the agency that his license had been [suspended2] on March 7,

2003 and that a notice thereof had been sent on that date to his

"previous home address" which he "did not receive . . . and U.S.

Customs confirmed that such letter had been returned to sender

unsigned"3; that on June 23rd he filed a written petition for ad-

ministrative relief from the revocation, followed on August 20,

2003 by a telephone plea to that effect, both of which were denied,

the latter upon a stated representation that "there was no recourse

available and . . . the decision was final."4   Whereupon the plain-

tiff concludes that

     this . . . is unfair, it completely denies due process,
     and the punishment is disproportional to the injury that
     U.S. Customs . . . may suffer from such unintentional
     delay.5

     2
       While the complaint states "revoked", defendant's Admini-
strative Record ("AR") confirms "suspended" on March 7, 2003.
See Tab 4.
     3
         Complaint, para. 9.
     4
         Id., para. 13.
     5
         Id., para. 15.
Court No. 03-00613                                                        Page 5


                 Whatever the intent, an axiom of this freedom-loving

nation has been that you may delay, but time will not6, and a maxim

of its common law has been to aid the vigilant and not those who

slumber on their rights.           Here, of course, any rights implicated

are exclusively those that have been enacted by the sovereign.

Equity has no permissible role.


                 As a broker duly licensed by the government7, the plain-

tiff was subject to 19 C.F.R. §111.30(a) (2003), to wit:


             Change of address. When a broker changes his busi-
        ness address, he must immediately give written notice of
        his new address to each director of a port that is
        affected by the change of address. In addition, if an
        individual broker is not actively engaged in transacting
        business as a broker and changes his non-business mailing
        address, he must give written notice of the new address
        in the status report required by paragraph (d) of this
        section.

Emphasis added. Plaintiff's complaint bears the address 2666 Derby

Drive, San Ramon, California 94583.                His form Customs Brokers

Triennial Status Report [-] Individual, timely dated February 1,

2000 and marked recorded by the Service on February 13th, listed

his mailing address as 2312 Canyon Village Circle in San Ramon,

94583.       See AR, Tab 3.       That is where the Port Director sent on

March       7,   2003   per   certified   mail   her   written   notice   of   the

suspension of plaintiff's license, which notice was returned by the


        6
       See, e.g., Poor Richard's Almanack, Poor Richard Improved,
1758: Preface (including "The Way to Wealth"), Maxims, available
at http://usinfo.state.gov/usa/infousa/facts/loa/bf1758.htm.
        7
            See AR, Tab 1.
Court No. 03-00613                                                      Page 6


Postal Service to the sender as unclaimed.              See id., Tabs 4, 5.
Apparently, that is also the "old" address that the plaintiff

refers to in his memorandum in opposition to defendant's motion.

There is no indication when it became old.          There is no indication

that he made any attempt after February 1, 2000 to notify Customs

of his changed location.           Indeed, the plaintiff argues in his

memorandum that his address "was not required to be updated more

than every three years."         In sum, then, the court cannot find that

the plaintiff was in compliance with the primary dictate of 19

C.F.R. §111.30(a), supra.         That is, there was no immediate written

notice of the change given to Customs.         Moreover, even if the court

were       to   credit   plaintiff's   interpretation    of   the   additional

requirement of that regulation, had he filed a timely status report

in February 2003, as he did in February 19978 and again in February

2000, this action surely would not have reached the court's docket.


                But it did as of August 27, 2003.       The Clerk of Court's

letter, acknowledging receipt on that date of plaintiff's complaint

and filing fee, informs him that this type of case "must be

commenced . . . within 60 days after notice of the decision of

[Customs]."        See 19 U.S.C. §1641(e)(1); 28 U.S.C. §2636(g). Both
statutes refer to 60 days after revocation within which to come to

this Court of International Trade.            The record in this matter

reflects that the date of revocation was May 6, 2003.               Compare AR,


       8
           See id., Tab 2.
Court No. 03-00613                                          Page 7


Tab 4 with id., Tabs 7, 8.   It also reflects receipt by the plain-

tiff of notice thereof on or about June 14, 2003.   Compare AR, Tab

8 with id., Tabs 9, 10.   Hence, even if the plaintiff were to be

given the benefit of all doubts in this matter, this action is

still time-barred by the above-cited statutes of limitation.


                                 II

           In view of the foregoing, defendant's motion must be

granted; summary judgment will enter accordingly.

Decided:   New York, New York
           November 24, 2004


                                 Thomas J. Aquilino, Jr.
                                              Judge
                              ERRATUM


                Slip Op. 04-149 (Nov. 24, 2004)



Retamal v. U.S. Customs and Border Protection
Court No. 03-00613



Amend the last sentence of part I (on page 7) to state:


"Be that as it was, even if the plaintiff were to be given the

benefit of all doubts in this matter, including a more generous

period of limitation, this action is still time-barred by operation

of the law, 19 U.S.C. §1641(g)(2)."




Dated:   New York, New York
         February 7, 2005
