Supreme Court Turns Down Chance to Review Customs Broker License Exam Question
The U.S. Supreme Court on Oct. 30 denied a petition for writ of certiorari regarding one question on Nebraska man Byungmin Chae's customs broker license exam. Chae took the test in April 2018 and subsequently took the result through multiple levels of administrative and judicial appeal before seeking Supreme Court review. He will remain one correct answer shy of the 75% threshold needed to pass the exam (Byungmin Chae v. Janet Yellen, U.S. Sup. Ct. # 23-200).
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Chae represented himself for the bulk of the proceedings, save for his case before the Court of International Trade, where he was assigned representation: Matthew Moench of King Moench, a New Jersey-based firm specializing in litigation over governmental and regulatory affairs.
Chae immigrated to the U.S. about a decade ago from South Korea, initially settling in New York. However, a job opportunity for his wife arose in Omaha, taking Chae to the Great Plains a few years ago, he told Trade Law Daily. Chae took the test while in New York, just before his move.
A sales manager dealing in international business, Chae said that he wanted to take the customs broker license exam with the goal of one day setting up his own firm geared toward opening business opportunities for foreign companies in the U.S.
When he failed the license exam, Chae decided not to retake it but to appeal the result -- first to CBP, then to the courts. Chae said he opted for this path because studying for the test again would take too much time, given that he has two young kids and was in the middle of an involved move to Nebraska. Now that his appeal has run its course, however, he said he would be open to taking the test again.
At the high court, Chae sought to appeal the exam's multiple choice question 27, dealing with which types of mail articles are not subject to examination or inspection by CBP. The U.S. said the correct answer is "Diplomatic pouches bearing the official seal of France and certified as only containing documents," while Chae said the right answer also included the option of "Mail packages addressed to officials of the U.S. Government containing merchandise" (see 2309060039).
The U.S. Court of Appeals for the Federal Circuit said 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 appellate court didn't grant Chae credit for two questions on the exam -- questions 27 and 33. However, Chae appealed only question 27 to the Supreme Court because he thought his case was stronger for the one question. Chae also figured he would have a better shot of the high court taking up the case if he limited the review to one question, creating a "smooth ride."
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 CIT 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.