Writ of Rachmones

 The Yiddish word rachmones means compassion, mercy, or pity. It occasionally sneaks into legal discussions in cases where there is no clear legal right to relief but the applicant appears to be deserving of compassion or mercy. I remember first coming across this usage when reading Chutzpah, the memoire of the now troubling Alan Dershowitz in which he conveyed the story of working as a clerk for Judge David Bazelon of the U.S. Court of Appeals for the District of Columbia. According to Dershowitz, when a criminal defendant deserved compassion but had no strictly legal remedy, Judge Bazelon would request that his clerk find some basis on which to draft a "writ of rachmones." Dershowitz, Chutzpah, 58-59 (1992). 

LEXIS tells me that Judge Berle Schiller of the U.S. District Court for the Eastern District of Pennsylvania used the same phrase in a 2020 opinion involving a criminal defendant who had been sentenced to prison for 15 years for securing home loans by fraudulent applications. The prisoner sought early release after she was diagnosed with multiple myeloma and, a year later, the world was plunged into the COVID-19 pandemic. In his opinion granting a reduction in her sentence to time served, Judge Schiller stated "the Court finds that given her age (58), poor health, and limited mobility Brown does not pose a danger to the safety of any other person or to the community. Moreover, the Court is confident that when presented with this writ of Rachmones, Brown will use the opportunity to spend time with family and friends (following proper social distancing protocols) and to contribute to the community, rather than harm it." United States v. Brown, 2020 U.S. Dist. LEXIS 90187.

In the customs and trade world, we do not often see a writ or rachmones. But, every now and then, it happens. Such is the case, at least for the moment, in Byungmin Chae v. Secretary of the Treasury, which is a rare instance of a prospective customhouse broker seeking judicial review of of the official answers to the broker license examinations.  

The government moved to dismiss the complaint on the grounds that it was filed too late and did not comply with the rules of practice before the Court. 

Mr. Chae took the brokers exam in April of 2018 and subsequently learned that he received a score of 65%, which is below the 75% passing score. Customs later notified Mr. Chae that his score had been adjusted to 67.5%. At that point, he timely requested review of his exam score. He then moved from New York to Nebraska and arranged to have his mail forwarded. CBP sent a letter denying his appeal to his NY address. When Mr. Chae did not receive word from CBP, he followed up via email and was told incorrectly that the matter was still under consideration. After further correspondence with CBP, Mr. Chae eventually received from CBP by email a copy of the letter CBP had sent to his NY address. [Side note: good job USPS.] At that time, he was informed that he had no additional avenue for review.

That, as it happens is an incorrect statement of law. An applicant for a broker's license can seek review of a denial in the U.S. Court of International Trade if he or she files a summons and complaint within 60 days of the date of the denial. The denial letter was dated May 23, 2019. Sixty days later would have been July 22, 2019. Mr. Chae received the denial from CBP on October 29, 2019. Sixty days from that date was December 28, 2019. He filed a physical complaint and cover letter with the CIT on March 4, 2020. The CIT docketed the complaint in its electronic system on September 11, 2020. It is not clear what exactly happened between March and September except that is exactly when COVID-19 happened, so there is that. 

The first question is whether the failure to timely file the complaint means the court lacks jurisdiction over the matter. Usually, a time limit in a statute is not jurisdictional unless Congress clearly states that it is. As such, time may be extended if the doctrine of equitable tolling applies. Equitable tolling is appropriate where the party acted diligently but some extraordinary circumstance prevented him or her from timely filing. Plaintiffs cannot sit on their rights and later claim equitable tolling; something must have prevented compliance with the time limit.

Here, two things favored equitable tolling. First, the Post Office did not forward the mail in a timely manner. This was outside of Mr. Chae's control after he had taken steps to initiate the mail forwarding order. Further, while he might have notified CBP of the address change, no regulation required him to do so. Second, Customs provided incorrect information on the availability of further review. Both of these facts prevented Mr. Chae from complying with the statutory filing deadline. After learning of the opportunity for judicial review, he acted diligently the file a complaint. As a result, the court found that the clock stopped during those two period and that Mr. Chae filed a timely complaint.

On the other hand, the complaint was not legally correct and, according to the government, Mr. Chae failed to file the required summons at the time he filed the complaint. But, under CIT Rule 3(e), the Court has the discretion to allow a plaintiff to amend a summons and Rule 15(a) allows a plaintiff to amend the complaint. In this case, the cover letter to the complaint constitutes the summons. Thus, both can be amended to conform to the rules. 

Regarding the substance of the complaint, the government argued that the complaint failed to state a claim and should be dismissed. It appears that may well be the case. But, the Court had already held that the complaint can be amended. Thus, the Court, as an exercise of discretion and rachmones, denied the government's motion to dismiss. Instead it granted Mr. Chae 60 days in which to get his legal ducks in a row and refile his summons and complaint. 

Keep in mind, this is not the same as finding the the plaintiff is entitled to a broker's license. He may be, but he may not. That will depend on the Court's review of the questions on the exam and whether enough of Mr. Chae's answers are arguably correct. These are hard cases to win. I said so in an overly-cynical 2006 post. Nevertheless, I wish Mr. Chae every opportunity to present his case and to have it reviewed on the merits.

As an aside, I often talk to students and young lawyers about the few opportunities to perform pro bono services at the Court of International Trade. Issues relating to broker licensing are a good opportunity, though obviously many such plaintiffs will have the means to hire counsel. The other opportunity it to represent petitioners seeking Trade Adjustment Assistance. Neither of these cases come up often, but when they do, the plaintiffs are often individuals for whom the outcome is personally and professionally important. So, as a reminder, the Court of International Trade maintains a list of counsel willing to represent needy clients on a pro bono basis. Information on that opportunity is here.