CIT Rejects Georgia Woman's Challenge to 4 Questions on Broker Exam
The Court of International Trade on April 8 rejected Georgia woman Skeeter-Jo Stoute-Francois' challenge to four questions on the October 2021 customs broker license exam. Judge Lisa Wang held that for three of the questions, Stoute-Francois formulated her own "factual scenarios" in arguing that there wasn't enough information to select the correct answer. For the remaining question, Wang said CBP's correct answer choice was backed by substantial evidence.
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The Georgia woman initially received a 67.5% score on the test, which is shy of the 75% passing threshold. After two appeals to CBP, Stoute-Francois was granted credit for four questions, raising her score to 72.5%. She then challenged four questions on the test at the trade court (see 2501310043).
The first, 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"; CBP said the correct answer is "quarterly."
Stoute-Francois argued that the question had insufficient facts, since it's unclear whether the imports would meet an exemption or special rule. Wang rejected this argument, finding that it's "incumbent upon the test-taker to synthesize the fact pattern provided while referencing the universe of information on which he or she is to base a decision." A question still meets the "substantial evidence test even if does not explicitly state that no possible exception or special rule will apply," the court said.
For this question, Stoute-Francois relied on a provision that only applies special rules in "explicitly stated circumstances" despite the fact that the question "does not state or imply that any exceptions or 'special rules' apply." As a result, the test taker's assumption to "include additional possibilities beyond what 'the fact pattern provided' cannot be reasonably found to be the best answer," the opinion said.
The next question, Question 20, asked what information is not a requirement on a commercial invoice. Stoute-Francois said the name of a responsible employee of the exporter who has knowledge of the transaction; CBP said the answer is an itemized list by name and amount of packing, cases, containers and inland freight to the port of exportation if included in the invoice price. The Georgia woman said the question fails to account for the facts that the "required information would not appear on the commercial invoice" but on a separate document or that a commercial invoice is not itself required.
Wang said Stoute-Francois' claims fall flat for the same reason they did for Question 16: they presume additional facts not present in the question. "Nowhere in the question does it indicate that there is a possibility of an attachment," the court said, adding that it's "not enough to show that hypothetical exceptions, which are not mentioned in the question, could exist to show that Customs’ decision was not based on substantial evidence."
Stoute-Francois' third challenge was to Question 34, which asked on what basis an article of base metal containing two or more base metals is classified. The Georgia woman said the answer is the metal that "imparts the essential character of the article"; CBP said it's the metal that "predominates by weight over each of the other metals." Stoute-Francois said she didn't have enough information, making General Rule of Interpretation (GRI) 1 inapplicable, since the "article could be a multitude of articles that contain more than one base metal."
Yet again, Wang said Stoute-Francois can't "reach conclusions by taking a portion of the question" to formulate her own "factual scenarios." The Georgia woman's answer "would require skipping the proper heading that directly addresses the question prompted," since the question "recited verbatim the corresponding heading, Section XV," and Note 7 of Section XV "recited verbatim the question with the corresponding correct choice."
Lastly, Stoute-Francois challenged Question 44, which concerns the classification of an automatic baseball pitching machine made of "bright colored plastic" that includes a "hollow yellow plastic bat and five white hollow plastic balls." The machine can be converted into a "miniature T-ball set" and is recommended for "children aged 3 years and older."
The test taker picked a subheading under heading 9506, which covers equipment for general physical exercise and athletics, while CBP picked a subheading under heading 9503, which covers "reduced-scale" models of toys.
Wang said the references to the machine's bright colors and hollow yellow plastic bat and hollow plastic balls "reasonably provide evidence that the machine is a toy, under Heading 9503." Also, the fact that the machine can be converted to a miniature T-ball set and is recommended for young children "reasonably provide that the pitching machine" is a reduced-scale model of heading 9503.
(Skeeter-Jo Stoute-Francois v. Janet Yellen, Slip Op. 25-37, CIT # 24-00046, dated 04/08/25; Judge: Lisa Wang; Attorneys: Sarah Tinaphong of Akin Gump for plaintiff Skeeter-Jo Stoute-Francois; Marcella Powell for defendant U.S. government)