Best Key Textiles Co. v. United States

2013 CIT 145

Opinion

Slip Op. 13 - 145

UNITED STATES COURT OF INTERNATIONAL TRADE

: BEST KEY TEXTILES CO., LTD., : : Plaintiff, : : v. : Before: R. Kenton Musgrave, Senior Judge : Court No. 13-00367 UNITED STATES, : : Defendant, : : :

OPINION

[Denying plaintiff’s motion for unredacted versions of defendant’s confidential third and final supplement to the administrative record.]

Dated: December 4, 2013

John M. Peterson, Maria E. Celis, Richard F. O’Neill, George W. Thompson, and Russell A. Semmel, Neville Peterson LLP of New York, NY, for the plaintiff.

Amy M. Rubin, Acting Assistant Director, Commercial Litigation Branch, U.S. Department of Justice, of New York, NY, for the defendant.

Musgrave, Senior Judge: The plaintiff, Best Key Textile, Inc., invoked the court’s

jurisdiction under 28 U.S.C. §1581(h), or alternatively 28 U.S.C. § 1581(i)(4), to seek pre-

importation judicial review of U.S. Customs and Border Protection’s (“Customs”) Headquarters

Ruling Letter HQ H202560, 47 Cust. Bull. & Dec. 41 (Sep. 17, 2013) (“Revocation Ruling”)

revoking New York Customs Ruling N187601 (Oct. 25, 2011) (the “Yarn Ruling”). Certain

procedural background leading up to the filing of this matter is set forth in Best Key Textiles, Inc.

v. United States, Slip Op. 13-135 (Nov. 4, 2013) (holding the Revocation Ruling, which becomes Court No. 13-00367 Page 2

effective 60 days after publication, deemed published October 17, 2013), familiarity with which is

presumed. As in that case, this matter is attempting to adhere to an expedited litigation schedule.

See ECF No. 23 (Nov. 6, 2013).

This opinion addresses only the plaintiff’s motion to compel the defendant to provide

the plaintiff with un-redacted versions of the defendant’s confidential third and final supplement to

the administrative record. See ECF No. 44 (motion for leave to file public version of final

supplement to the administrative record); ECF No. 46 (granting motion for leave); ECF No. 49

(confidential version of final supplement). The precise motion was raised during the in-person

emergency status conference convened yesterday, also upon motion therefor from the plaintiff.

At the conclusion of the conference, the court agreed to inspection and evaluation,

in camera, of the un-redacted portions of the administrative record documents over which the

defendant asserted privilege of attorney-client or pursuant to the inter-agency exemption of 5 U.S.C.

§552(b)(5). The court has done so and also considered the law upon which the plaintiff claims

entitlement. See Brennan Center for Justice at New York University School of Law v. U.S.

Department of Justice, 697 F.3d 184 (2nd Cir. 2012); Fund for Animals v. Williams, 391 F. Supp.

2d 191 (D.D.C. 2005); see also NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975); National

Council of La Raza v. Department of Justice, 411 F.3d 350 (2nd Cir. 2005); Grand Central

Partnership, Inc. v. Cuomo, 166 F.3d 473 (2nd Cir. 1999); Coastal States Gas Corp. v. Department

of Energy, 617 F.2d 854 (D.C. Cir. 1980); 81 Am. Jur. 2d, Witnesses §517; Charles Alan Wright,

Kenneth W. Graham, Jr., Victor James Gold, Michael H. Graham, 26A Fed. Prac. & Proc. Evid. Court No. 13-00367 Page 3

§5680 (1st ed.). The court has also considered the plaintiff’s brief filed in opposition to the

defendant’s claim of privilege.

The plaintiff argues that the government has “sought to designate” the contested

redactions “as the basis of its decision to revoke NY N187601, and as the reasons why it will no

doubt claim its revocation was not arbitrary, capricious or contrary to law.” Pl’s Br. in Opposition

at 3. The plaintiff’s argument rests on its reading of Brennan’s mention of “referencing a protected

document as authoritative”. See 697 F.3d at 205. However, the defendant has not “referenced” or

mentioned any of the contested redacted content as “authoritative” publically, as yet; it has only filed

as part of “the” administrative record non-redacted portions of certain documents.

The court’s in camera inspection of the redacted portions complies with USCIT Rule

26(b)(5)(A)(ii), and it finds that all of the claimed redactions are predecisional and deliberative, and

that none may fairly be characterized as “final” in the sense of having been adopted formally or

informally within the contours of the Revocation Ruling or as having expressed the “working law”

of Customs. See Sears, 421 U.S. at 153; La Raza, 411 F. 3d at 356-57. Some documents also

express communications over which the attorney-client privilege attaches. See, e.g., Upjohn Co. v.

United States, 449 U.S. 383, 389 (1981); Elkem Metals Co. v. United States, 24 CIT 1395, 126 F.

Supp. 2d 567 (2000). Customs has not abused its discretion in redacting parts of the final

supplement to the administrative record from public scrutiny.

The parties will proceed accordingly.

So ordered.

Dated: December 4, 2013 /s/ R. Kenton Musgrave New York, New York R. Kenton Musgrave, Senior Judge