Broker Exam Taker Says US Dodges Claims Against 4 Questions on Exam
The government "mostly dodges" the arguments customs broker license exam taker Skeeter-Jo Stoute-Francois makes against four questions on the exam and "baselessly and repeatedly accuses" her of rewriting the challenged questions, counsel for Stoute-Francois argued in a reply brief at the Court of International Trade. The brief said the U.S. "advances a series of impermissible post hoc justifications, misconstrues the applicable standard of review, fails to address several of Plaintiff’s arguments, and improperly relies" on past CIT cases (Skeeter-Jo Stoute-Francois v. Janet Yellen, CIT # 24-00046).
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The first question in dispute, Question 16, asked about the frequency basis upon which an applicant for admission becomes liable to pay all harbor maintenance fees when the imported cargo is unloaded at a port and admitted into a foreign-trade zone. The Georgia woman selected the response "weekly," while CBP said the correct answer is "quarterly." Stoute-Francois argued that the question lacks sufficient facts, since it's "unclear whether the 'imported cargo'" in the question "would meet an exemption or special rule" (see 2410150057).
The exam taker said the government's defense of the question "overlooks the key issue at hand: without sufficient information on the cargo in question, the frequency of payments for the Harbor Maintenance Fee cannot be determined." Denying a test taker credit for a question that doesn't have adequate information is "unreasonable and plainly unsupported," the brief said. The U.S. doesn't address the issue and faults Stoute-Francois for failing to identify anything in the rule that would support the choice of "weekly."
In response to the government's stance on the test, Stoute-Francois said "that retort does not answer whether CBP supported its decision with substantial evidence, such as providing sufficient information in a question so that the applicant can choose an answer."
The U.S. also said the text taker misconstrued the standard of review by citing CIT's decision in Diamond Sawblades Manufacturing Coalition v. U.S., which said that the absence of evidence isn't evidence of absence. Stoute-Francois said that this "legal principle is well-established under the substantial evidence standard, which the Government concedes applies here."
The government's other defenses are "post hoc," the brief said. For instance, the U.S. said the applicable regulation lays out additional support that the question references the regulation's default rule and the "context of other answer choices" doesn't suggest that any exceptions apply. However, "CBP did not provide either of these rationales as the basis for its decision," the brief said.
Question 34 asks on what basis an article of base metal containing two or more base metals is classified. Stoute-Francois selected the response that it's classified by the metal that imparts the article's essential character. CBP designated the correct answer to be that it's classified by the metal that predominates by weight over each of the other metals.
Defending its test answer, the U.S. said Stoute-Francois would impose an obligation on CBP to create questions that contain "all possible permutations of facts that could theoretically bear upon classification of a good." In response, the test taker said she never suggested this obligation, and only said that the question must have "sufficient facts to enable the applicant to make an informed decision." She then reiterated her claim that the question lacks sufficient information, including "whether the article has an actual use, whether the article includes components," and "what the object is."
Question 44 asked for the correct classification of an automatic baseball pitching machine. Stoute-Francois identified Harmonized Tariff Schedule subheading 9506.69.2040 as the answer, which covers general sports equipment. CBP said the answer is subheading 9503.00.0083, which covers "reduced-scale models."
Stoute-Francois argued that the government's defense of its answer here also was impermissibly post hoc, since the U.S. "advances entirely new reasons for the decision" at the trade court. For instance, the U.S. said the merchandise should be classified as a "toy," but in the "operative determination that is the subject of this appeal, CBP makes no mention of toys." The government can't "cure defects in CBP's decision by analyzing the misuse afresh and advancing a new theory on appeal," the brief said.
Aside from the post hoc defenses, the government failed to address the reasonable position that an "applicant who has no familiarity with automatic baseball pitching machines or reduced size models of the same would identify this merchandise as sports equipment instead of a toy or reduced-size model." In addition, the government's appeal to case law, the dictionary and past case law in defending its position emphasizes the fact that the question "unreasonably calls for knowledge that a" customs broker license exam taker "would have no reasonable basis to possess," the brief said.