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Nebraska Man Takes Appeal of Customs Broker License Exam Results to SCOTUS

Byungmin Chae, a Nebraska man who took the customs broker license exam, petitioned the Supreme Court of the U.S. to hear his appeal of his test results. Chae appealed his test results to CBP, the Court of International Trade and the U.S. Court of Appeals for the Federal Circuit, receiving credit for some of the question answers he challenged, but ultimately falling just one correct answer shy of a passing grade on the April 2018 exam (Byungmin Chae v. Janet Yellen, U.S. Sup. Ct. # 23-200).

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The test taker, representing himself, challenged CBP's answer to just one question on the test in an effort to clear the 75% threshold needed to pass the exam. The question, Question 27 on the exam, was multiple choice and dealt with which mail articles are not subject to examination or inspection by CBP. The U.S. said the correct answer was "Diplomatic pouches bearing the official seal of France and certified as only containing documents."

Chae selected as his correct answer choice B, which included "Mail packages addressed to officials of the U.S. Government containing merchandise," arguing that both his and CBP's answer choices are correct. The Federal Circuit said that a package to a government official containing merchandise cannot be exempted regardless of any difference in meaning between "shall be passed free of duty" and "examination or inspection by Customs" as laid out in federal regulations (see 2304250044).

The petition discussed various elements of the question, the first of which was "the unavailability." Chae said that the question does not say where the packages are coming from, noting that CBP's answer does but that his answer choice does not, requiring the presumption that all packages described in the exam are from outside U.S. territory. This is an assumption, though, that cannot be found in CBP's regulations, and "any question in the exam should not be based on the presumption but should be based on the facts of statements in the regulation," the petition said.

Chae also argued that choice B is different from the types of packages described in 19 CFR 145.37(c) on which the Federal Circuit based its decision. While the trade court and appellate court said that the regulations are sufficiently clear since the mail packages in the regulations are the ones that are believed to only have official documents, Chae said that the regulations include both official documents and merchandise due to the reference of "such mail articles" in the regulation.

Choice B here also does not specify who and what type of merchandise is included in the "mail article," Chae said. Turning again to the federal regulations, the test taker argued that mail articles addressed to the designated international organization are not subject to customs examination if the organization certified that the mail article has no dutiable or prohibited articles under its official seal.

Chae originally scored 65%, appealing his results twice to CBP, which then raised his score to 71.25%. Still needing credit on three more questions, the test taker filed suit at the Court of International Trade to contest five questions. He received credit for one. Chae then appealed questions 5, 27 and 33 to the Federal Circuit, receiving credit for question 5 but not for questions 27 and 33.