from the United States Court of International Trade in No.
1:07-cv-00318-GWC, Judge Gregory W. Carman.
Gregory Hugh Teufel, OGC Law, LLC, Pittsburgh, PA, argued for
Claudia Burke, Commercial Litigation Branch, Civil Division,
United States Department of Justice, Washington, DC, argued
for defendant-appellant. Also represented by Benjamin C.
Mizer, Jeanne E. Davidson; Amy Rubin, Edward Francis Kenny,
New York, NY; Yelena Slepak, Office of Assistant Chief
Counsel, International Trade Litigation, United States Bureau
of Customs and Border Protection, New York, NY.
Reyna, Linn, and Wallach, Circuit Judges.
Wallach, Circuit Judge.
United States ("the Government") appeals the
decision of the U.S. Court of International Trade
("CIT") awarding attorney fees to Appellee
International Custom Products, Inc. ("ICP")
pursuant to the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d)(1)(A) (2012).
See Int'l Customs Prods., Inc. v. United States
(ICP VII), 77 F.Supp.3d 1319, 1335 (Ct. Int'l
Trade 2015). We have jurisdiction over the appeal pursuant to
28 U.S.C. § 1295(a)(5). We affirm.
facts and procedural history of this appeal are extensive,
and a brief explanation of the nature of the action is
warranted. ICP's request for attorney fees stems from
regarding the classification of certain white sauce imports
under the Harmonized Tariff Schedule of the United States
("HTSUS"). Following a request from [ICP], the
United States Customs and Border Protection
("Customs") issued New York Ruling Letter D86228
("the Ruling Letter") classifying ICP's white
sauce as "sauces and preparations therefor" under
HTSUS 2103.90.9060 (1999). Years later, Customs issued a
notice of action re-classifying all pending and future
entries of white sauce as "[b]utter and . . . dairy
spreads" under HTSUS 0405.20.3000 (2005) ("the
Notice of Action"), which increased the tariff by
After protesting and paying duties on a single entry, ICP
filed a claim in the CIT, alleging the Notice of Action
improperly revoked the Ruling Letter without following the
procedures required by 19 U.S.C. § 1625(c) (2006).
Int'l Custom Prods., Inc. v. United States
(ICP VI), 748 F.3d 1182, 1182-83 (Fed. Cir. 2014).
Since ICP filed its first action in 2005, the CIT has issued
five separate opinions on the matter, two of which were
appealed to us. See generally Int'l Custom Prods.,
Inc. v. United States (ICP I), 29 Ct. Int'l
Trade 617 (2005) (exercising jurisdiction pursuant to 28
U.S.C. § 1581(i)(4) (2000) and finding the Notice of
Action null and void); Int'l Custom Prods., Inc. v.
United States (ICP II), 467 F.3d 1324 (Fed.
Cir. 2006) (reversing the CIT's exercise of jurisdiction
in ICP I, vacating on the merits, and remanding with
instructions to dismiss); Int'l Custom Prods., Inc.
v. United States (ICP III), 32 Ct. Int'l
Trade 302 (2008) (granting-in-part and denying-in-part the
Government's motion to dismiss ICP's Complaint in a
new action); Int'l Custom Prods., Inc. v. United
States (ICP IV), 33 Ct. Int'l Trade 79
(2009) (denying the parties' cross-motions for summary
judgment); Int'l Custom Prods., Inc. v. United
States (ICP V), 878 F.Supp.2d 1329 (Ct.
Int'l Trade 2012) (finding the Notice of Action null and
void pursuant to § 1625(c)(1) and ordering Customs to
reliquidate pursuant to the Ruling Letter); ICP VI,
748 F.3d 1182 (affirming ICP V); ICP VII,
77 F.Supp.3d 1319 (awarding attorney fees to ICP pursuant to
the EAJA). The case now returns to us for the third time.
Legal Standard and Standard of Review
EAJA provides that "a court shall award to a prevailing
party other than the United States fees and other expenses .
. . unless the court finds that the position of the United
States was substantially justified or that special
circumstances make an award unjust." 28 U.S.C. §
2412(d)(1)(A). The Government's position is substantially
justified if it is "justified to a degree that could
satisfy a reasonable person" and has a "reasonable
basis both in law and fact." Pierce v.
Underwood, 487 U.S. 552, 565-66 (1988) (internal
quotation marks and citations omitted). The Government's
position includes the prelitigation actions of the relevant
administrative agency, as well as the U.S. Department of
Justice's litigation arguments. See Smith v.
Principi, 343 F.3d 1358, 1361-62 (Fed. Cir. 2003).
Although the Government's position ...