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TEMPO TRUCKING & TRANSFER CORP. v. DICKSON

December 19, 1975

TEMPO TRUCKING AND TRANSFER CORPORATION, Plaintiff,
v.
G. R. DICKSON, Acting Commissioner of Customs, U. S. Customs Service, Department of the Treasury of the United States, Defendant



The opinion of the court was delivered by: BRAMWELL

MEMORANDUM AND ORDER

 BRAMWELL, District Judge.

 This is an action to review a final decision of the Acting Commissioner of Customs, revoking plaintiff's customhouse cartman's license. Jurisdiction is asserted under 28 U.S.C. § 1346, 28 U.S.C. § 1355, and 5 U.S.C. § 701 et seq. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of The Federal Rules of Civil Procedure.

 Plaintiff Tempo Trucking and Transfer Corporation (hereinafter referred to as "Tempo") is engaged in the operation of a licensed and bonded trucking concern at the John F. Kennedy International Airport. Tempo was issued a customhouse cartman's license by the United States Customs Service, Department of The Treasury on June 29, 1964. The license authorizes Tempo to receive and transport bonded merchandise which has been entered and examined for customs purposes. *fn1"

 On February 15, 1972, a carton containing jewelry was transported from Montreal to the J.F.K. Airport via Air Canada. The carton was to be picked up by Tempo at Air Canada and delivered to Pan American World Airways, Inc., which thereafter was to transport it to Paris (Govt. Ex. 8; Minutes of Administrative Hearing, *fn2" at 64, 93, 105). At approximately 10:00 A.M. on February 28, 1972, Tempo employee Thomas Rupa picked up the carton at Air Canada and delivered it to the Tempo warehouse (Tr. 71, 82). At about 2:45 P.M. Tempo employee Frank Elia attempted to deliver the carton to Pan American. At that time Cargo Service Supervisor Robert Duscek refused to accept the carton on behalf of Pan American, finding that it was slit open and appeared to contain a cinderblock (Tr. 117, 120-123). At approximately 9:00 P.M. two Tempo employees attempted to deliver the same carton to Pan American. Pan American employee William Barry rejected the carton and thereafter notified agents of the United States Customs Service (Tr. 143, 144).

 By letter dated December 23, 1974, Area Director of Customs, George F. Dunn notified Tempo of his intention to revoke its customhouse cartman's license for violations of 19 C.F.R. § 112.30(a)(5) and (a)(9) (Govt. Ex. 1). *fn3" Plaintiff's counsel, by letter dated December 30, 1974, filed a notice of appeal and requested a hearing (Govt. Ex. 2). A hearing was held before Hearing Officer Carl F. Nolte, Jr. on January 23, 1975 pursuant to 19 C.F.R. § 112.30(D). On March 14, 1975, the Hearing Officer transmitted his findings and conclusions to the Acting Commissioner of Customs, recommending that the license be revoked. By letter of decision dated July 9, 1975, the Acting Commissioner of Customs revoked Tempo's license effective July 31, 1975 (Complaint, Ex. "A"). On July 28, 1975, this Court issued a Temporary Restraining Order enjoining, inter alia, the revocation of Tempo's license. By stipulation filed August 7, 1975, the TRO was extended until there was a determination regarding Tempo's application for a preliminary injunction. This Court denied the application for a preliminary injunction in an order entered September 23, 1975. *fn4"

 Plaintiff seeks to overturn the determination of the Acting Commissioner of Customs on three grounds: (1) The Hearing Officer erred by failing to explore the facts and circumstances underlying the conviction of Tempo's president Anthony Garite as he was convicted on the basis of an "Alford" plea; (2) There was insufficient evidence that Tempo was guilty of any deceptive practices; and (3) The Hearing Officer, under the circumstances of this case, abused his discretion in denying Tempo's request for an adjournment of the administrative hearing.

 JURISDICTION

 Plaintiff asserts that jurisdiction may be predicated under 28 U.S.C. § 1346. Under the Tucker Act, 28 U.S.C. § 1346(s)(2), a district court has jurisdiction only over claims against the United States for money damages. Richardson v. Morris, 409 U.S. 464, 93 S. Ct. 629, 34 L. Ed. 2d 647 (1973); R. E. D. M. Corporation v. LoSecco, 291 F. Supp. 53 (S.D.N.Y.1968), aff'd 412 F.2d 303 (2d Cir. 1969); Wells v. United States, 280 F.2d 275 (9th Cir. 1960); Clay v. United States, 93 U.S.App.D.C. 119, 210 F.2d 686 (1953), cert. denied, 347 U.S. 927, 74 S. Ct. 530, 98 L. Ed. 1080 (1954); see generally 1 Barron and Holtzoff, Federal Practice and Procedure (Wright ed.): Civil § 54. Plaintiff makes no claim for money damages here but rather seeks judicial review of an administrative determination revoking its license. Thus, plaintiff can not properly invoke the Tucker Act as a jurisdictional predicate.

 Plaintiff further claims that jurisdiction exists under 28 U.S.C. § 1355. This statute provides that district courts have original jurisdiction "of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture". See generally 1 Barron and Holtzoff, Federal Practice and Procedure (Wright ed.): Civil § 44. Having been unable to find any authority in support of plaintiff's contention, this Court concludes that 28 U.S.C. § 1355 does not confer jurisdiction.

 Although the Tariff Act of 1930 does not expressly provide for judicial review of an order revoking a customhouse cartman's license, *fn5" plaintiff contends that the Administrative Procedure Act, 5 U.S.C. § 701 et seq. (hereinafter "A.P.A."), confers jurisdiction upon this Court to review such a determination. The A.P.A. provides in relevant part:

 
A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. 5 U.S.C. § 702.
 
The form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute or, in the absence or inadequacy thereof, any applicable form of legal action . . . in a court of competent jurisdiction. 5 U.S.C. § 703.
 
Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review. 5 U.S.C. § 704.

 It is only the introductory clause of section 10 of the A.P.A. which purports to place limitations on the right to judicial review. The introductory clause excludes administrative action from judicial review to the extent that "statutes preclude judicial review", or "agency action is committed to agency discretion by law." 5 U.S.C. § 701.

 First, a statute must demonstrate clear and convincing evidence of an intent to preclude judicial review before courts will cut off an aggrieved party's right to be heard. *fn6" This Court has found no clear and convincing evidence in the Tariff Act of 1930 or in its legislative history indicating that Congress intended to preclude judicial review of an order revoking the license of a customhouse cartman. Second, the agency discretion exception to the general rule that agency action is reviewable under the A.P.A. is a narrow one, and is only "applicable in those rare instances where 'statutes are drawn in such broad terms that in a given case there is no law to apply' (citation omitted)." Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S. Ct. 814, 821, 28 L. Ed. 2d 136 (1971). See Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159 (1973). Here the grounds for the suspension or revocation of a cartman's license as set forth in 19 C.F.R. § 112.30(a) are sufficiently specific to permit judicial review.

 This Court is mindful of the fact that neither the Tariff Act of 1930 nor the applicable Customs regulations provide for judicial review of an order revoking a cartman's license. However, where a statute does not specifically provide for judicial review, "nonstatutory judicial review" is still available. *fn7" Aquavella v. Richardson, 437 F.2d 397, 402 (2d Cir. 1971). Thus, having eliminated the exceptions to the presumption of reviewability set forth in the introductory clause of section 10, it would appear that the A.P.A. affords the plaintiff a right to judicial review of the decision revoking its license.

 The remaining question is whether the A.P.A. provides an independent basis for federal jurisdiction. The Second Circuit has not provided a conclusive answer to this question. *fn8" Indeed, this issue has produced a split of authority throughout the country. *fn9" Given the plethora of scholarly opinion on the subject, it would not appear to be profitable to attempt to review the numerous arguments on both sides of the issue. This Court is guided by the legislative history of the A.P.A. which does not provide a conclusive answer to the jurisdictional question but does indicate that Congress intended to afford a broad right of judicial review. In Citizens Committee For Hudson Valley v. Volpe, supra, 425 F.2d at 102, the Second Circuit stated:

 
There can be no question at this late date that Congress intended by the Administrative Procedure Act to assure comprehensive review of "a broad spectrum of administrative actions," including those made reviewable by specific statutes without adequate review provisions as well as those for which no review is available under any other statute. Abbott Laboratories v. Gardner, supra, 387 U.S. [136] at 140, 87 S. Ct. 1507 [18 L. Ed. ...

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