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International Custom Products, Inc. v. United States

United States Court of Appeals, Federal Circuit

December 15, 2016

INTERNATIONAL CUSTOM PRODUCTS, INC., Plaintiff-Appellee
v.
UNITED STATES, Defendant-Appellant

         Appeal 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 plaintiff-appellee.

          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.

          Before Reyna, Linn, and Wallach, Circuit Judges.

          Wallach, Circuit Judge.

         Appellant 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.

         Background

         The 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 litigation

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 approximately 2400%.
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.

         Discussion

         I. Legal Standard and Standard of Review

         The 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 ...


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