Chae v. Sec'y of the Treasury

• Decision Date: 07 May 2021
• Docket Number: Slip Op. 21-57,Court No. 20-00316
• Citation: 518 F.Supp.3d 1383
• Court: U.S. Court of International Trade
• Parties: Byungmin CHAE, Plaintiff, v. SECRETARY OF THE TREASURY, Defendant.

518 F.Supp.3d 1383

Byungmin CHAE, Plaintiff,

v.SECRETARY OF THE TREASURY, Defendant.

Slip Op. 21-57

Court No. 20-00316

United States Court of International Trade.

May 7, 2021

Matthew C. Moench, King Moench Hirniak & Mehta, LLP of Morris Plains, NJ, for plaintiff.

Justin R. Miller, Attorney-in-Charge, International Trade Field Office, of New York, NY, Aimee Lee, Assistant Director, U.S. Department of Justice, of New York, NY, and Marcella Powell, Senior Trial Counsel, Civil Division, U.S. Department of Justice, of New York, NY, for defendant. With them on the brief were Jeffrey Bossert Clark, Acting Assistant Attorney General, and Jeanne E. Davidson, Director. Of counsel on the brief was Mathias Rabinovitch, Office of the Assistant Chief Counsel, International Trade Litigation, U.S. Customs and Border Protection.

OPINION

Reif, Judge:

"What, like it's hard?"¹ Well, in fact, yes — over 2,000 applicants annually sit for the Customs Broker License Exam, with a pass rate of approximately 37%.²

* * *

Plaintiff-appellant Byungmin Chae ("Mr. Chae" or "plaintiff") brings this action against the Secretary of the Treasury ("defendant" or "Government") to challenge the decision of U.S. Customs and Border Protection ("Customs") upholding the denial of credit for certain answers on the Customs Broker License Exam ("the exam"), pursuant to 19 U.S.C. § 1641(e).³ Defendant requests that the U.S. Court of International Trade ("USCIT") dismiss the action for lack of subject matter jurisdiction pursuant to USCIT Rule 12(b)(1), or, alternatively, for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). Def.’s Mem. in Supp. of Mot. to Dismiss, ECF No. 5 ("Def. Br.") at 1. In response, plaintiff claims that the Court has subject matter jurisdiction over the claim and that the Government has not shown that the complaint fails to state a claim upon which relief can be granted. Pl.’s Br. Resp. to Mot. to Dismiss and Supp. Cross-Mot. to Am. Summons, ECF No. 12 ("Pl. Resp. Br.") at 5, 7-8.

In its motion to dismiss, the Government argues that the Court lacks subject matter jurisdiction for two reasons: first, because plaintiff filed his complaint after the statute of limitations prescribed in 19 U.S.C. § 1641(e)(1) and 28 U.S.C. § 2636(g) lapsed and, second, because plaintiff allegedly failed to comply with the terms set forth in 28 U.S.C. § 1581(g)(1) and 28 U.S.C. § 2632(a), which call for summons and complaint to be filed concurrently with a clear identification of defendants in the action. Def. Br. at 7-8. The Government argues in the alternative that plaintiff's complaint fails to state a claim upon which relief can be granted under USCIT Rule 12(b)(6) because relief is barred by the applicable statute of limitations. Id. at 10.

Plaintiff cross-motions for a denial of the Government's motion to dismiss and requests leave to amend the summons. Pl. Resp. Br. at 1, 5. Plaintiff claims that the statute of limitations is non-jurisdictional and that Customs’ misleading actions favor the application of equitable tolling. Id. at 3. He further argues that the court should allow him to rectify the deficiencies of his pleadings under USCIT Rule 3(e) and that the interests of justice call for leniency. Id. at 6-7. Additionally, plaintiff argues that his complaint does not fail to state a claim because the Government has not alleged any substantive deficiencies in it. Id. at 7. He contends that the fact that the Government has not alleged any substantive deficiencies in plaintiff's complaint should defeat the Government's procedural claims. Id.

After review of the filings and applicable law, this court denies defendant's motion to dismiss pursuant to USCIT Rule 12(b)(1) for lack of subject matter jurisdiction.⁴ The court grants plaintiff's request for leave to amend his claim under USCIT Rule 3(e) to bring the complaint and summons into compliance with USCIT Rule 10(a) (providing that "every pleading must have a caption with the court's name, a title, a court number and a Rule 7(a) designation"). It is premature for the court to rule on defendant's motion to dismiss pursuant to USCIT Rule 12(b)(6) because the court offers plaintiff leave to amend his complaint and summons, which in their current form fail to state a claim upon which relief can be granted. At this time, the court grants plaintiff sixty (60) days to amend his complaint to bring it into compliance with the procedural requirements of USCIT Rule 10(a) and sua sponte invites plaintiff to amend his complaint within sixty (60) days to bring it into compliance with the substantive requirements of USCIT Rule 12(b)(6).

BACKGROUND

Plaintiff originally attempted to file his complaint before the Court on March 4, 2020, requesting a review of his Customs Broker License Exam responses. Pl. Resp. Br. at 1. The complaint was received on March 6, 2020.⁵ See Byungmin Chae Compl. Appealing Exam Results, ECF No. 2 ("Complaint"). It is unclear what exactly precipitated such a lengthy delay between his filing and the Court's docketing; however, the court notes that plaintiff's original filing coincided with the onset of the COVID-19 pandemic. Plaintiff then filed electronically on September 11, 2020. Pl. Resp. Br. at 2. At that time, the case was docketed with the USCIT. See Complaint at 1.

Mr. Chae sat for the exam on April 25, 2018. See Complaint. By letter dated May 18, 2018, Customs notified Mr. Chae that he had failed the exam with a score of 65% — 10% below the required 75% passing score. Pl. Resp. Br. at 1. Mr. Chae then appealed his result to the Broker Management Branch ("BMB") of Customs. Id. ; see also 19 C.F.R. § 111.13(f) (explaining that an individual can appeal results to the BMB).

By letter dated August 23, 2018, the BMB informed Mr. Chae that, upon further review, his score improved by two questions, giving him a 67.5% — still short of the 75% required to pass. Pl. Resp. Br. at 1. Mr. Chae then requested review of the BMB's decision by Customs’ Executive Assistant Commissioner ("Commissioner") on September 28, 2018, which fell within 60 days of the initial appeal decision as required by 19 C.F.R. § 111.13(e). Id. at 2; Def. Br. at 3.

On October 18, 2018, Mr. Chae moved to Nebraska, and he set up mail forwarding for his former New York address. Pl. Resp. Br. at 2. The Commissioner upheld the BMB's decision by letter dated May 23, 2019, since the score still fell below a passing grade. Id. However, Mr. Chae claims never to have received the BMB's letter because it was sent to his New York address.⁶ Id. When Mr. Chae followed up with the BMB via email over the summer, he was erroneously informed on July 11, 2019, that appeals were "presently with Ruling and Regulations" — when, in fact, Customs had already issued a decision two months earlier. Declaration of Plaintiff Byungmin Chae, Ex. A, ECF No. 12-1 ("Chae Decl.").

Following additional correspondence between Customs and Mr. Chae, on October 29, 2019, Mr. Chae finally received the May 23, 2019 letter as an email attachment — more than five months after Customs had sent it to his New York address. Pl. Resp. Br. at 2. The Commissioner advised Mr. Chae that he would receive credit for three additional questions, bringing his score up to 71.25%. Def. Br. at 4. When Mr. Chae subsequently inquired how to appeal that decision, Customs informed him on October 31, 2019, that "[t]here is no 3rd appeal." Pl. Resp. Br. at 2. Mr. Chae pursued no further action at that time because he believed that he had no further recourse or ability to appeal the decision. Id.

However, an applicant may seek review of an appeal of his Customs Broker License Exam results in this Court by filing an action within 60 days of the issuance of that decision. 19 U.S.C. § 1641(e)(1) ; 19 U.S.C. § 2636(g). "Upon learning that he was mislead [sic] by [Customs]," Mr. Chae subsequently sought to rectify the situation and filed an appeal with the USCIT dated March 4, 2020.⁷ Pl. Resp. Br. at 1; see also Chae Decl. at 2, ECF No. 12-1.

As noted, the Commissioner upheld the BMB's decision by letter dated May 23, 2019. Chae Decl., Ex. A. Mr. Chae first attempted to file with this Court on March 4, 2020, Chae Decl., ¶ 10, and then the USCIT docketed an electronic copy of this filing on September 11, 2020, almost a year and a half after Customs issued its decision on Mr. Chae's appeal. Pl. Resp. Br. at 2. The threshold issue before this court, then, is whether the Court retains subject matter jurisdiction over the dispute given the duration of time that elapsed from May 23, 2019 to the date of Mr. Chae's filing before this Court.

Subject Matter Jurisdiction

STANDARD OF REVIEW

Adjudication of a case before the Court is not proper unless the court has subject matter jurisdiction over the claims presented. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). Whether jurisdiction exists is a question of law. Sky Techs. LLC v. SAP AG, 576 F.3d 1374 (Fed. Cir. 2009). A plaintiff bears the burden of establishing subject matter jurisdiction. See Norsk Hydro Can., Inc. v. United States , 472 F.3d 1347, 1355 (Fed. Cir. 2006).

This Court has limited jurisdiction and, absent contrary evidence, must presume that a cause of action lies outside of the Court's jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). When reviewing a motion to dismiss for lack of subject matter jurisdiction, the Court proceeds according to whether the motion "challenges the sufficiency of the pleadings or controverts the factual allegations made in the pleadings." H & H Wholesale Servs., Inc. v. United States , 30 C.I.T. 689, 691, 437 F. Supp. 2d 1335, 1339 (2006).

The absence of a valid cause of action does not defeat the Court's subject matter jurisdiction. See, e.g., Bell v. Hood , 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). In fact, even an arguable cause of action suffices. Id....