1 Citing both USCIT Rules 12(c) and 56.1, Plaintiff sty les his motion as one for “judgment on the pleadings.” See Pl.’s Br. Supp. Mot. J. Pleadings (“Pl.’s Mem.”) at 3. However, as this action was brought pursuant to 19 U.S.C. § 1641(e)( 1), and since review of the issues raised herein is based upon an age ncy rec ord, the court will treat Plaintiff’s motion as one made solely pursuant to Rule 56.1. S LIP O P . 04-60

U NITE D S TATES C OURT OF I NTERNATIONA L T RADE B EFORE : R ICHARD K. E ATON , J UDGE

__________________________________________ : M ICHAEL J. K

ENNY , : : P LAINTIFF , : : V . : C OURT N O . 03-00011 : J OHN W. S NOW , : S ECRETARY OF THE T REASURY , : U.S. D EPARTMENT O F THE T REASURY : U NITE D S TATES OF A MERICA , : : D EFEND ANT . : __________________________________________: [Plaintiff’s motion for judgment upon an agency record denied; Defendant’s motion for judg ment upon an agency

record granted.] Michael J. Kenny , Pro Se, for Plaintiff. Peter D. Keisler , Assistant Attorney Gene ral, Civil Division, United States Department of Justice; Barbara S. Williams , Attorney I n Charge, Inte

rnational Trade Field Office, Commercia l Litigation Branc

h, United States Department of Justice ( Harry A. V

aletk ), for Defendant United States. Dated: June 7, 2004
M EMO RAN DUM O PINI ON E ATON , Judge : Before the court is plaintiff Michael J. Kenny ’s (“Plaintiff”) motion for judgment on the ple adings. 1 By his motion, Plaintiff challeng es the United States Secretary of theC OURT N O
. 03-00011 P AGE 2

2 Effective March 1, 2003, Customs was renamed the B ureau of Customs and Border Protection of the United States Department of Home land Security. See Reorganization Plan Modification for the Dep’t of Homeland Security, H.R. Doc. 108-32, at 4 (2003).

3 While in his complaint, Plaintiff “respectfully reque sts he be given credit for Question No. 32,” Compl. ¶ 14, Plaintiff actually see ks review of the Secretary ’s decision to deny him a customs broker’s license. See 19 U.S.C. § 1 641(b)( 1) (“No person ma

y c onduct cu stoms business . . . unless that person holds a valid customs broker’s license issued by the Secretary

. . . .”).

4 An applicant for a customs broker’s license is require d to pass a written examination, which is “designed to determine the individual’s knowledge of customs and related laws, regulations and procedures, bookke eping, accounting, and all other a ppropriate matters necessary to render valuable service to importers and exporters.” See 19 C.F.R. § 111.13(a) (2001).

5 Title 19 U. S.C. § 1641( e)(1) s tates:

A customs broker, applicant, or other person directly affected may appeal any decisi on of t he Sec retary den ying or rev okin g a license . . . by filing

in the Court of International Trade , within 60 days afte r the issuance of the decision or order, a wr itten petition request ing that the deci sion or or

der be mo dified or

set aside in whole or in part. Id

. Treasury ’s (“Secretary

”) affirmance of the United States Customs Service’s (“ Customs”) 2 decision to deny Plaintiff credit

3 for one q

uestion on

the Octob er 2001 c

ustoms bro ker’s lic ense examination. 4 Defend

ant Unite d States ( “Defe

ndant”)opposes Pla

intiff’s motion and

crossmoves for judgment upon an agency record, pursuant to USCIT Rule 56.1(a) . The court has exclusive jurisdiction to review the denial of a customs broker’s license under 28 U.S.C. § 1581(g)(1) (2000) and 19 U.S.C. § 1641(e)(1) (2000). 5 For the reasons discussed below, the court denies Plaintiff’s motion and grants Defendant’s c ross-motion.C OURT N O
. 03-00011 P AGE 3

6 Deputy Assistant Secre tary Timothy

E. Skud reviewed Plaintiff’s appeal under the authority deleg ated to him by the Secre tary. See Aff. of Timothy E. Skud, Deputy Assistant Secreta ry ¶ D; O’Quinn v. United States , 24 CIT 324, 324 n.1, 100 F. Supp. 2d 1136, 1137 n.1 (2000) (internal citations omitted). B ACKGROUND In October 2001, Plaintiff sat for the c ustoms broker license examination in New York City. On November 2, 2001, Customs informed Plaintiff by letter that he had received a score of 73.75%, 1.25 percentage points below the passing score of 75%. See Lette

r from Cus toms to Michael J. Kenny of 11/2/01 ; 19 C.F.R. § 111.11( a)(4) (2001). Pla intiff time ly a

ppealed his score to Customs, seeking full credit for the answers he provided for Questions 19 and 32. See Lett ers fro m M ich ael J. Ken ny to Cu st om s of 11/ 12/ 01, Adm in . R . Do cs. XI (Q ues ti on 1 9) & XII (Question 32); 19 C. F.R. § 111 .13(f). Customs den ied Plainti ff’s ap

peal with respect to both questions. See Letter from Customs to Michael J. Kenny of 2/8/02.

On February

20, 2002, Plaintiff appealed Customs’s decision to the Secretary , but only as to Question 32. See Letter from Michael J. Kenny to Deputy Director, Office of Trade and Tar iff Affairs of 2/20/02; 19 C.F.R. § 111.17(b) (“Upon the decision of the Assistant Commissioner affirmi ng the d enial of an applic ation for

a licens e, the ap

plicant ma

y f ile with the

[Secreta ry ], in writing, a request for any additional review that the Secretary deems appropriate.”). On December 11, 2002, the Secretary affirmed Customs’s decision to deny Plaintiff’ s appeal. See Letter from Deputy

Assistant Sec’y Skud to Michael J. Kenny of 12/11/02. 6 Thereafter, on January 10, 2003, Plaintiff timely commenced this action pursuant to 19 U.S.C. § 1641(e)(1) andC OURT N O
. 03-00011 P AGE 4

7 Title 19 C.F .R. § 111.1 7(c) sta tes: Upon a decision of the Secretary of the Treasury

affirming the denial of an application for a license, the applica nt may appea

l the decision to the Court of International Tra de, provided that the appeal a ction is commenced

within 60 c alendar

day s after t

he date of entry of the

Secretary ’s decision. Id

. 19 C.F.R. § 111.17(c). 7

Plaintiff seeks review of the Secretary ’s decision to uphold the denial of his request for credit with respect to Question 32, and seeks a rever sal of the Secretary ’s decision, thus giving him credit for one additional answer and a passing grade on the Exam. See Compl. ¶ 14. Defendant contends that the Secretary ’s denial of Plaintiff’s application for a customs broker’s license, based on his test score, was “reasona ble” and “supported by

substantial evidence,” and thus should be sustained. See Def .’sMem . Sup

p. M ot. J. Ad

min. R. a nd Opp’ n Pl. ’s M ot. J. Pleadings (“Def.’s Mem.”) at 8.

S TAND ARD O F R EVIEW Title 19 U.S.C. § 1641(e)(3) states that, with respect to an appeal to this Court of the Secreta ry ’s decis ion to deny

a broker ’s licens e, “[t]he f indings o f the Secretary

as to the f

acts, if supported by substantial evidenc e, shall be conclusive.” Id . Substantial evidence is “more than a mere scintilla.” Consol. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938). It “is ‘such releva nt evidence as a reasonable mind might ac cept as adequate to support a conclusion.’” Huaiyin Foreign Trade Corp. (30) v. United States , 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quotingC OURT N O
. 03-00011 P AGE 5

Consol. Edison Co. , 305 U.S. at 229). “In apply ing this [substantial evidence] standard, the court affirms [the agency ’s] factual determinations so long as they are reasonable and supported by the record as a whole, even if there is some evidence that detracts from the ag ency’s c onclusions.” Olympia Indus., Inc. v. United States , 22 CI T 387, 389, 7 F. Supp. 2d 997, 100 0 (1998); see also Slater Steels Corp. v. United States , 27 CIT __, __, 297 F. Supp. 2d 1351, 1356 (2003) (where “Commerce’s determination . . . was reasonable [it was] thus supported by substantial evidence and in accordance with law.”).

D ISCU SSI ON Question 32 required the examinee to classify a beverage under the

correct subheading of the Harmonized Tariff Schedule of the United States (2001) (“HTSUS”). The question asked:

Water Street Fishhouses is importing a beer from Mexico to sell at their ea ting est ablishmen

ts in Texas. The bee

r is made f

rom malt with an alcoholic strength by volume of 0.4 percent. It is shipped in 1 liter glass bottles. What is the correct classification of the beer? Oct. 2001 Exam., Question 32. The choices available to answer this question were:

A) HTSUS 2202.90.9010, which provided for “Waters . . . and other nonalcoholic beverages . . . Othe r, Other, Nonalcoholic beer,” B) HTSUS 2203.00.0060, which provided for “Beer made from malt [i]n containers each holding not over 4 liters: Other,” C) HTSUS 2203.00.0030, which provided for “Beer made f rom malt [i]n cont

ainers e ach holdi

ng not ov er 4 liters: [i]n glas s containters,” D) HTSUS 2203.00.0090, which provided for “Beer made from malt [i]n containers each holding over 4 liters,”C OURT N O
. 03-00011 P AGE 6 E) HTSUS 2202.90.9090, which provided for “Waters . . . and other nonalcoholic beverages . . . Othe r, Other, Other.” See id.; HTSUS subheadings 2202, 2203.

Plaintiff chose (C) as the correct answer; howe ver, the official answer was (A) . In the explanation sheet issued to Plaintiff, Customs explained its reasons for finding (A) to be the
correct answer:

Chapter 22 Note 3 states: for the purposes of heading 2202 the term “nonalc oholic be

verag es” means be

verag es of an a

lcoholic streng th by volume not

exceedin g 0.5 pe rcent vo l. Alcoho lic beverages are c lassified in headings 2203 to 2206 or heading 2208 as appropriate. Chapter 22 Note 2 states: for the purposes of this chapter and of chapters 20 and 21, the “alcoholic streng th by volume” shall be determined at a temperature of 20 deg rees [Celsius]. The question does not c ontain a s tatement that the a lcoholic streng th by volume was d eter mined at a tempe

ratu re ot her t han 2 0 deg

rees [Celsi us]. Therefore, the beer desc

ribed in question #32 does not meet the terms of subheadings 2203.00.0030, 2203.0060 [sic], or 2203.00.0 090 (answers C, B, and D, re spective ly) . Answer E is incorrect because nonalcoholic bee r is provided for under subheading 2202.90.9010. Explanator

y Co mments to Question 32(emphas is in orig inal). Th us, Plaintif

f was de nied cre dit for Question 32.

Plaintiff contends that answer (C) is the best answer to Question 32 because the question did not state the temperature at which the beverag e’s alcoholic strength by volume was calculated. See Pl.’s Mem. 4–5. In Plaintiff’s view, “[t]he absence of any indication at whatC OURT N O
. 03-00011 P AGE 7

temperature the beverag e was measured can be the diffe rence between an alcoholic and anonalcoholic beverage.” Id . at 5. Plai ntiff fur ther stat es that Question No. 32 indicated the alcohol strength of the malt beer was 0.4%, ostensibly making it non-a lcoholic, but without knowing at what tempe ratu re it was m easu

red t hat 0 .4% is

mean ingl ess[. ] [I] t may have be en measu

red at 30 degre es Celsius

thereby reducin g its streng th in orde r to qualif y a s a non-a

lcoholic import. Id . at 6 (ci

tation omit

ted). Pla intiff cl aims that t

he speci ficity

of choic e (C), wh

ich deal s with “Beer made from malt [i]n containers each holding not over 4 liters: [i]n glass containers,” makes it the best of the available choices. Id . at 7.

Defendant argues that “the a dministrative record reasonably supports Customs’ decision to deny [Plaintiff’ s] applica

tion base d on his fa

ilure to a chieve a passing score of 75 on his broker’s examination.” Def.’s Mem. at 5. As to Plaintiff’s argume nt that Question 32 lacked information necessary

to answer the question, i.e., the temperature of the beve rage being classified, Defendant reiterates the Sec retary ’s view that Question 32 “stipulates the alcohol strength by

volume, making it unnecessary to provide additional information about the temperature at the time of measurement.” Id . at 7; see alsoMem. fro m Anne She re Wallwork to Deputy Assistant Sec’y

Skud of 12/11/02 at 2 (“Note 3 defines nonalcoholic beverag es as having an alcoholic strength by

volume of not greater than 0.5%, so that the beer specified in the question qualifies as nonalcoholic beer.”).

This Court has considered similar cases brought by customs broker’s license examinees seeking review of specific e xam questions. In DiIorio v. United States , 14 CIT 746 (1990), Mr.C OURT N O
. 03-00011 P AGE 8

DiIorio sought review

of five questions from the October 1989 exam after failing to achieve a passing grade of 75%. With respect to Que stion 38, he claimed that selecting the official answer required an examinee to rely on assumptions. The question asked what course of action a Customs Dist

rict Dire ctor wou

ld take after a c

ustoms bro ker’s c lient had written to

dispute certain matters with respect to merchandise deta ined for possible copyr

ight violations. Mr. DiIorio contended that choosing the answer that Customs insisted was correct required the examinee s to assume

three th ings: “t hat whate ver his c lient ‘wr

ote’ to the

director was actually received; that such letter was rece ived within thirty day s after the denial; and that such letter was an acceptable denial.” DiIorio , 14 CIT at 748. Mr. DiI orio argued that “requiring the examinee to leap th rough these assu

mptions in a

rriving at the correct a

nswer pla ced an u nreasonable burden on [the] test-taker.” Id . The cou rt, howe ver, uph eld the Se cretar

y’ s denial o f the app eal, finding that the Secretary ’s decision to deny Mr. DiI orio credit for his answers to the exam questions was a reasonable decision. Id . at 752. The court stated that Question 38, “[w]hile not perfect” was adequate, de spite its “ambiguities.” Id

. at 748. The court specified that judicial review of agency

decisionmaking as to “the formulation and gra ding of standardized examination questions should be limited in scope.” Id . at 747 (n oting the court “[would] not sub stitute its own judg ment on the

merits of the Customs

examination, but [would ] examine de cisions ma

de in connection therewith on a reasonableness standa rd.”).

This case presents facts similar to the those in DiIorio . There , Mr. DiIorio arg ued that i t

was unr eas ona bl e fo r ex ami nee s t o an swe r “a mb igu ous ” qu est io ns b y rel ying on a ss um pt io ns. In the present case, Plaintiff similarly alleges that Question 32 was ambiguous. See, e.g. , LetterC OURT N O
. 03-00011 P AGE 9

8 The ques tion aske d: The terms of sale stated on the invoice are Fr eight on Board (FOB ). Which of the following deductions are allowed when dete rmining the entered value? A) The freight costs are deduc tible. B) The insurance costs are de ductible. C) The freight and insurance costs ar e both deductible. D) The inland freight costs are deduc tible. E) No deductions are allowed. O’Quinn , 24 CIT at 326, 100 F. Supp. 2d at 1138. The officia l answer to the question was (E). Mr. O’Quinn selected (C) as his answer. Id

.

9 The Secretary

conceded that FOB was not an industry term. See O’Quinn , 24 CIT at 327, 100 F. Supp. 2d at 1139. from Michael J. Kenny to Deputy Assistant Sec’y Skud of 2/20/02 (“The a bsence of any indication at what temperature the imported malt beer’s alc oholic strength by volume was

measure d can ea sily

be inter preted [in multiple wa

ys] . . . .”). Pla

intiff cl aims that c

redit sho uld be gra nted for his answe

r as the q uestion di d not spec ify

the tempe

rature at which t

he alcoholic streng th by volume wa s calcul ated, an d thus to re ach the o fficial answer he would have to assume that the alcoholic strength of the beer was measured at twenty degrees Celsius. See Pl.’s Mem. at 5.

In another case

the court found the Secretary ’s denial of an examinee’s appeal to be unreasonable. In O’Quinn v. United States , 24 CIT 324, 100 F. Supp. 2d 1136 (2000), Plaintiff ch al le ng ed on e q ue st io n, al le gi ng th at it co nt ai ne d i ns uf fi ci en t i nf or ma ti on to an sw er co rr ec tl y. 8 The court found that the question required examinees to be familiar with the term “FOB.” 9 Moreover, Plaintiff contended, and the court ag reed, that since “FOB ca

n refer to both port ofC OURT N O
. 03-00011 P AGE 10

10 For insta

nce, Bl ack’s Law Dictionary defined FOB as “Free on board some location (for example, FOB shipping point; FOB de stination).” B LACK ’ S L AW D ICTI ONARY 642 (6th ed. 1990). embarkation and port of delivery ,” the question could not be answered as it did not specify which port was involved. Id . at 327, 100 F. Supp. 2d at 1139. The court found that all consulted “lexicog raphic a uthoritie s requir

e a name d point to f

ollow the ‘ FOB’ te

rm; other wise, the term in and of itself is ambiguous.” 10 Id . at 328, 100 F. Supp. 2d at 1140. The court held that “[g]iven the question’s incorrect use of the delivery term ‘FOB,’ it was unreasonable f or the Assistant Secretary to affirm Customs’ denial of Plaintiff’s appeal of this question.” Id . The court remanded the case to the Secretar y, instructing that “Plaintiff’s answer . . . must either be deemed correct or the question must be voided.” Id . at 332, 100 F. Supp. 2d at 1143.

Unlike O’Quinn , Plaintiff ’s dispute d exam ques tion was not drafte d ambigu ously , nor did it requir e the exam

inee to r ely on assumpt

ions. Plain

tiff insist s that he c

hose answer (C) be cause the stated alcoholic strength of the bevera ge as 0.4% was “meaning less” unless it was known at what temp eratur

e the mea suremen

t was made ; thus, “a

nswer C w as chose

n . . . as the

best possible answer considering all facts in the question and Chapter Notes.” Pl.’s Mem. at 4. Howeve r, all the informat ion that Pla

intiff ne eded to a

nswer Qu estion 32 was avail able. F irst, the alcoholic strength of the beverag e was supplied as part of the question. Second, Chapter 22 Note 3 sta

tes that “ ‘nonalc oholic be verag es’ means be

verag es of an a

lcoholic streng th by volume
not excee ding 0.5 percen

t vol.” HT SUS Chapte

r 22, Note

3 (empha sis in original). Th us, Plaintiff chose to ignore the stated facts of the question and now la bors to find a justification for doing so. Indeed, Plaintiff’s c hoice of (C) is all the more remarkable bec ause, rather than rely ingC OURT N O
. 03-00011 P AGE 11

on the given fact that the “beer . . . [had] an alcoholic stre ngth by volume of 0.4 pe rcent,” he chose to invent a fact by

assuming that the beer had an alcoholic streng th by volume in excess of 0.5%. Therefore, the court ag rees with the Secretary

that since “the question [itself] stipulate[d] the alcohol strength by

volume . . . [it was] unnecessary to provide additional informa tion about the temperature at time of measurement.” Mem. fr om Anne Shere Wallwork to Deputy Assistant Sec’y Skud of 12/11/02 at 2.

C ONCLUSI ON For the foregoing r

easons, the findings of the Secretary , and the subsequent decision not to gran t a customs

broker’ s license

to Plaintif

f, is “sup ported by substantia

l evidenc e.” 19 U. S.C. § 1641(e)(3). Accordingly , the court denies Plaintiff’s motion for judgment upon an age ncy

re co rd an d g ra nt s D ef

en da nt ’s cr os s- mo ti on . J ud gm en t s ha ll be en te re d a cc or di ng ly.

/s/ Richard K. Eaton Richard K. Eaton

Dated: June 7, 2004 New York, New York