CIT Allows Customs Broker Exam Taker to Continue Appeal Despite Late Filing

The Court of International Trade will allow a customs broker test-taker to proceed with a challenge to his failing grade, denying a motion to dismiss from the government that argued his case didn’t meet procedural requirements. Byungmin Chae’s delay in appealing to the trade court was caused in part by CBP’s own misleading statements, and his early missteps in the case before hiring a lawyer should not bar him from a hearing in court, CIT said in a decision May 7.

Chae contests his results from the April 2018 customs broker exam. CBP initially informed Chae that he scored 65%, short of the 75% threshold to obtain a customs broker license. An appeal to the agency’s Broker Management Branch brought him up to 67.5% in August 2018. Chae then appealed to the CBP executive assistant commissioner, which in May 2019 brought his score up to 71.25%. He still needed CBP to grant him three more correct answers to get his license.

Challenges to the results of customs broker exams are appealable to the Court of International Trade, but must be filed within 60 days of CBP’s final decision. Chae would not attempt to file his initial complaint in the case until March 4, 2020, well past the 60-day deadline.

In the meantime, Chae had moved from New York to Nebraska, and forwarded his mail to his new address. Nonetheless, CBP’s final appeal decision in May went to Chae’s former residence. Not having received a response, Chae followed up with CBP by email, and the agency wrongly informed him in July of 2019 that its decision was still pending. Chae finally received the results of the final appeal on Oct. 29, 2019.

Then, after having received the results, Chae emailed CBP to ask how he could appeal the decision. CBP responded on Oct. 31, 2019, telling Chae that “there is no 3rd appeal.” Chae pursued no further action, believing he had no further recourse. It wasn’t until the end of January or beginning of February 2020 that he found out he could file suit at CIT.

The government argued that, as Chae missed the 60-day period to file a court challenge, his case must be dismissed. CIT disagreed. The law granting CIT jurisdiction over customs broker exam challenges does not specify that the trade court has no jurisdiction over cases filed more than 60 days following the appeal decision. That means CIT can decide to extend the deadline where it finds circumstances warrant.

In Chae’s case, “the non-delivery of Customs’ letter and Customs’ misleading statements … affected [his] ability to file his complaint in a timely manner,” CIT said. Chae didn’t find out about the results of his appeal until Oct. 29, 2019. Then, after two days, CBP told him he couldn’t appeal. The government argued Chae, an aspiring broker, should have known better, but CIT found it was reasonable to rely on the word of CBP as to procedures for appealing a broker exam. And CBP’s email to Chae did not specify that no third administrative appeal was possible, but rather that it was not possible to appeal at all.

As a result of these misleading statements, and the resulting fact that Chae did not know he could file an appeal to CIT until early 2020, his challenge meets the 60-day deadline for filing lawsuits on customs broker exam results, CIT said.

And though Chae failed to meet certain CIT filing requirements -- such as filing a summons and complaint at the same time to begin a broker exam lawsuit -- that was understandable, given his representation of himself for the first few months of the case, CIT said. So was his failure to name the Treasury Department as a defendant in the case, rather than CBP. CIT gave Chae 60 days to amend his summons and complaint to meet its court rules.

“Whether Mr. Chae’s exam was deserving of a passing grade is a question for another day; however, at the very least, Mr. Chae deserves to have his case heard fairly and without further delay,” CIT said.

(Chae v. Sec'y of the Treasury, Slip Op. 21-57, CIT # 20-00316, dated 05/07/21, Judge Reif. Attorneys: Matthew Moench for plaintiff Byungmin Chae; Justin Miller for defendant U.S. government)