US Opposes Importer's Bid to Compel CBP Deliberations on Classification of 3D Printing Pens
The U.S. opposed a motion from importer Quantified Operations seeking to compel the government to produce unredacted internal CBP communications on the classification of the company's 3D printing pens, arguing at the Court of International Trade that the communications are irrelevant and otherwise protected by the "deliberative-process privilege" (Quantified Operations v. United States, CIT # 22-00178).
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During discovery, Quantified Operations requested, among other things, all documents discussing the pens in connection with the revocation of a 2013 letter ruling from CBP classifying 3D printing pens under Harmonized Tariff Schedule heading 8516 or in connection with a 2019 HQ ruling classifying the products under HTS heading 8477. In response, the U.S. produced "three email chains" that discussed the printing pens, two of which discuss the classification of a different product called a "Matt Gun Kit" and the last of which concerns the Harmonized System Committee's 2018 vote on the classification of the pens.
The U.S. redacted parts of the email chains, asserting that the concealed elements were "privileged deliberations." Quantified Operations asked the trade court to compel the U.S. to produce the unredacted email chains, claiming that it needed the documents to support a potential request for attorney's fees under the Equal Access to Justice Act (see 2501060043).
In response, the government said the redacted bits are irrelevant, since an application for attorney's fees is not a "claim or defense," adding that there's no such thing "as EAJA discovery." The U.S. said Quantified Operations itself conceded that the information is irrelevant, with the company saying that the information "could be relevant to the issue of EAJA fees." However, attorney's fees applications are "collateral" issues that are "unrelated to 'any party's claim or defense,' even if the request for fees is included in the complaint," the brief said.
The EAJA theory also fails, since the company has yet to prevail in its customs case, the government argued. And even if the importer did win at CIT, "the information they prematurely seek would still be off-limits because discovery is not available under EAJA," the brief said. The importer failed to cite any authority showing they can seek information solely for EAJA attorney's fees applications, the U.S. said.
The government also argued the information is privileged. The deliberative-process privilege allows the U.S. to "withhold the discussions of its employees, which, if subject to disclosure, would temper candor during the decision-making process," the brief said. The redacted information at issue is shieleded by the privilege since it's both "deliberative and predecisional," the U.S. claimed.
The information is predecisional because it "precedes the 2019 headquarters ruling that represents the 'adoption of an agency policy,'" the government said. And it's deliberative since it "reflects the thoughts of Customs employees regarding the classification of 3D printing pens (and another good), among other matters."
Quantified Operations said the government waived the privilege, since it failed to comply with the formal rules required of claiming a document as privileged. In response, the U.S. said it has complied with these requirements. For instance, the "head of the department" carefully delegated his authority to invoke the privilege on CBP's behalf, and the "delegatee of that authority" has "made a formal claim of privilege," submitted an affidavit showing personal consideration of the information and gave a "detailed explanation of what the" information is and why it falls within the privilege's scope.
The U.S. said it can satisfy these requirements in response to a motion to compel instead of solely in advance of one.