CIT Denies Importer's Bid to Produce Redacted CBP Communications in Customs Row on 3D Pens
The Court of International Trade on May 6 denied a motion to compel discovery of unredacted versions of CBP officials' internal emails from importer Quantified Operations and manufacturer WobbleWorks (HK) in a customs case on the classification of the companies' 3D pens. Judge Richard Eaton said the redacted information isn't relevant to the classification claims and is "protected by the deliberative process privilege" (Quantified Operations v. United States, CIT # 22-00178).
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Quantified Operations and WobbleWorks brought their case to claim that their pen kits should have been classified as toys under Harmonized Tariff Schedule heading 9503 and not as rubber- or plastic-working machines under heading 8477 (see 2402070017). The companies sought to compel the government to produce unredacted internal CBP communications regarding the sets’ classifications, but the U.S. refused, asserting the deliberative process privilege (see 2502140062).
The plaintiffs claimed that they needed the unredacted emails to support their claim for attorney's fees under the Equal Access to Justice Act (EAJA), which says that the government's position in the classification spat was not "substantially justified."
Eaton said that this claim "misses the mark." The judge noted that EAJA proceedings are "collateral" to the main action and that "any claim for fees at this stage of the litigation is premature." Claims for attorney's fees are to be filed within 30 days of final judgment and the party making the application "must have prevailed in the action." Since there's "no winner yet," it's "simply too soon for Plaintiffs to make a claim for fees," the court said.
In addition, whether CBP's position was "substantially justified" is settled by a court on the record. Courts have interpreted EAJA to mean that no additional discovery "will be necessary, for EAJA petition purposes," Eaton noted. As a result, "the law simply does not permit the type of discovery Plaintiffs seek, regardless of their ability to assert an intention to claim fees at the current stage of litigation," the decision said.
Eaton also said the unredacted communications are "no more relevant to an eventual EAJA proceeding than [they are] to Plaintiffs’ classification claims." The redacted information doesn't pertain to what the subject merchandise is and thus isn't germane to the classification dispute, the judge said. And if the companies prevail, the information "would not bear on whether Customs’ classification was substantially justified," since this conclusion doesn't depend on how CBP arrived at its decision, the court said.
Lastly, Eaton said the communications are shielded by the deliberative process privilege, which "protects intra-governmental pre-decisional documents ‘reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions are formulated.'" The infomration here is "pre-decisional," since the emails were created before CBP issued its classification decision, and it's deliberative, since it reflects the "give-and-take consultative process."