APPEAL FROM THE ORDER OF THE SECRETARY OF THE TREASURY.
Van Dusen, Gibbons and Rosenn, Circuit Judges. Van Dusen, Circuit Judge, dissenting.
Petitioner Twigger, the holder of a customhouse broker's license issued under the Tariff Act of 1930, 19 U.S.C. § 1202 et seq., seeks review, pursuant to 19 U.S.C. § 1641(b), of an order of the Secretary of the Treasury suspending that license for five years. He has held the license since 1949. The Tariff Act authorizes the Secretary of the Treasury to prescribe rules and regulations governing the licensing of customhouse brokers, and regulations issued on that authority are found at 19 C.F.R. Part 111. On July 27, 1971, Twigger was served with a notice to show cause and specification of four charges:
(1) failing to promptly pay or otherwise account to clients for refunds received for them from the Government;
(2) failing to exercise due diligence in paying increased duties assessed in connection with various entries;
(3) knowingly giving false information to customs agents concerning payment of refunds to certain clients; and
(4) failing to maintain current records of accounts reflecting his financial transactions in an orderly and correct manner.
Prior to the service of the July 27, 1971 notice to show cause, Twigger had on April 16, 1971, been served with a notice of preliminary proceedings, signed by the District Director of Customs at Philadelphia, Pennsylvania, advising him that that office was considering formal proceedings looking to the revocation of his license. That notice of preliminary proceedings informed him that 5 U.S.C. §§ 554 and 558 would be applicable if formal proceedings were necessary.*fn1 The same District Director of Customs signed the July 27, 1971 notice to show cause. On November 17, 1971, the same District Director of Customs, acting as Hearing Officer for the Bureau of Customs, conducted a hearing on the charges. On March 27, 1972, the same District Director of Customs addressed to the Secretary of the Treasury Government's Findings and Conclusions and Recommendations. He concluded that Twigger was guilty of all four charges and recommended that his license be revoked. The District Director forwarded the entire record to the Secretary. Eugene T. Rossides, Assistant Secretary of the Treasury, reviewed the agency record and in effect accepted the conclusions of the District Director on the charges. He suspended Twigger's license for five years rather than revoking it as the District Director had recommended. It is that decision which we review.
Twigger's petition for review makes these contentions:
I. That Charges (1) (2) and (4) should have been dismissed because the Bureau of Customs did not sustain its burden of proof on these charges. See 5 U.S.C. § 556(d).
II. That Charges (1) (2) and (4) should have been dismissed because the Bureau of Customs failed to comply with 5 U.S.C. § 558(c) in that it failed to give him an opportunity to achieve compliance with all lawful requirements.
III. That the entire administrative procedure was unlawful because the hearing officer also performed investigative and prosecutorial functions. This combination of functions, Twigger contends, violates 5 U.S.C. § ...