Jazz Photo Corp. v. United States, (2007)

Extract

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Jazz Photo Corp. v. United States, (2007)

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Plaintiff, v.

UNITED STATES,

Defendant.

Slip Op. 07-109

UNITED STATES COURT OF INTERNATIONAL TRADE

Before: Judge Timothy C. Stanceu

Court No. 04-00494

OPINION AND ORDER

[Granting in part plaintiff's application for attorneys' fees and expenses under the Equal Access to Justice Act]

Decided: July 16, 2007 Neville Peterson LLP (John M. Peterson, Curtis W. Knauss, George W. Thompson, Maria E. Celis and Catherine Chess Chen) for plaintiff.

Peter D. Keisler, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M.

McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice (Stefan Shaibani and David S. Silverbrand); Beth Brotman and Paul Pizzeck, Customs and Border Protection, United States Department of Homeland Security, of counsel, for defendant.

Stanceu, Judge: Before the court is the application of Jazz Photo Corporation ("Jazz" or "plaintiff") for attorneys' fees and other expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (2000). The court conditionally grants the application in part because the positions that the United States ("defendant") took before the United States Court of Appeals for the Federal Circuit on two of the issues in the litigation - the issue of permissible repair and the issue of segregation of merchandise - were not substantially justified.

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The subject EAJA application arose from litigation involving Jazz's importations into the United States of certain "lens-fitted film packages" ("LFFPs"), which are more commonly known as "disposable cameras," "single use cameras," or "one-time use cameras." The LFFPs that Jazz imported were previously-used LFFPs that had been fitted ("refurbished" or "reloaded") in China with new rolls of film and, for some models, new batteries for the flash mechanism. Background information relevant to Jazz's EAJA application is presented in the opinion of the United States Court of Appeals for the Federal Circuit ("Court of Appeals") in Jazz Photo Corp. v. Int'l Trade Comm'n, 264 F.3d 1094 (Fed. Cir. 2001) ("Jazz I"), the opinion of the United States Court of International Trade in Jazz Photo Corp. v. United States, 28 CIT __, 353 F. Supp. 2d 1327 (2000) ("Jazz II"), and the opinion of the Court of Appeals in Jazz Photo Corp. v. United States, 439 F.3d 1344 (Fed. Cir. 2006) ("Jazz III"), which affirmed the court's judgment in Jazz II.

A summary of the background information pertinent to the court's ruling on plaintiff's EAJA application is presented below.

In its application, Jazz seeks, under 28 U.S.C. § 2412(d) (2000), legal fees and expenses paid to the law firm Neville Peterson LLP in litigation before the Court of International Trade and the Court of Appeals in Jazz II and Jazz III, respectively. Jazz II arose from litigation that Jazz commenced in the Court of International Trade on October 4, 2004 to contest the denial by United States Customs and Border Protection...

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