Slip Op. 03 - 54 UNITED STATES COURT OF INTERNATIONAL TRADE - - - - - - - - - - - - - - - - - - -x ST. EVE INTERNATIONAL, INC., : Plaintiff, : v. : Court No. 03-00068 UNITED STATES, : Defendant. : - - - - - - - - - - - - - - - - - - -x Opinion & Order [Upon trial as to Customs notices to redeliver imported camisoles, judgment for the plaintiff.] Decided: May 15, 2003 Coudert Brothers (Robert L. Eisen and Christopher E. Pey) for the plaintiff. Robert D. McCallum, Jr., Assistant Attorney General; John J. Mahon, Acting Attorney in Charge, International Trade Field Office, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Jack S. Rockafellow and Harry A. Valetk); and Office of Assistant Chief Counsel, International Trade Litigation, U.S. Bureau of Customs and Border Protection (Michael W. Heydrich), of counsel, for the defendant. AQUILINO, Judge: Discerning a trend in certain female attire in America, the U.S. Customs Service, which has since become the Bureau of Customs and Border Protection per the Homeland Security Act of 2002, §1502, Pub. L. No. 107-296, 116 Stat. 2135, 2308-09 (Nov. 25, 2002), and the Reorganization Plan Modification for the Department of Homeland Security, H.R. Doc. 108-32, p. 4 (Feb. 4, 2003), issued to St. Eve International, Inc. three notices Court No. 03-00068 Page 2 on Customs Form 4647 to redeliver specified imported women's wear, as well as notices of liquidated damages for failure to comply with those redelivery demands. I The importer protested those demands and thereafter commenced this case, praying for and obtaining expedited trial (and now this decision) of its pleaded causes of action as to the contested notices. Among other things, the complaint, which has been amended, requests revocation of each notice and "such further and additional relief as this Court may deem just, including attorney's fees and costs of suit". The trial began on April 9, 2003. Two days later, Customs issued an apparent warning to the plaintiff that another of its entries would be rejected if it failed to execute and return a proffered Wearing Apparel Detail Sheet because THERE ARE CURRENTLY SEVERAL ISSUES PENDING WITH RESPECT [to] IMPORTATIONS OF WEARING APPAREL BY YOUR ACCOUNT ST. EVE. INTERNATIONAL, SUCH AS PENALTY CASES, PROTESTS, AND SUMMONS TO COURT. AS THE ISSUES CENTER AROUND CLASSI- FICATION/QUOTA/VISA/ADMISSABILITY ISSUES, A REVIEW OF THE PREVIOUS ENTRIES REVEALS THAT THE INVOICE DESCRIPTION USED IS NOT SUFFICIENT TO ENSURE PROPER CLASSIFICATION. Plaintiff's Exhibit 126, first page (capitalization in original). Whereupon counsel pressed in open court for injunctive relief from such, claimed harassment by the Bureau. See trial transcript ("Tr."), pp. 750-51. Court No. 03-00068 Page 3 Whatever the precise intent of Customs or reaction of its object at that moment of exchange, suffice it to state that the record developed to date herein does not support the extraordinary, additional equitable relief that the plaintiff is now also requesting. Moreover, award of attorney's fees and expenses and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. §2412, requires that the court find that the position of the United States was not substantially justified. Compare 28 U.S.C. §2412(d)(1)(A) with Turtle Island Restoration Network v. Mallett, 24 CIT 627, 642-43, 110 F.Supp.2d 1005, 1018-19 (2000), aff'd in pertinent part, rev'd on another ground in part, 284 F.3d 1282 (Fed.Cir.), reh'g on that ground denied, 299 F.3d 1373 (Fed.Cir. 2002), cert. denied, 155 L.Ed.2d 511 (2003). As recited in that case, a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact. 24 CIT at 643, 110 F.Supp.2d at 1019, quoting Pierce v. Underwood, 487 U.S. 552, 566 n. 2 (1988). See also Gavette v. Office of Personnel Management, 808 F.2d 1456, 1467 (Fed.Cir. 1986), and cases cited therein. Clearly, the record at bar shows that the government satisfies at least this standard. That is, with regard to any award under EAJA, the court cannot find that defendant's position was not substantially justified. Court No. 03-00068 Page 4 A In both its complaint and amended complaint, the plain- tiff erroneously pleads subject-matter jurisdiction pursuant to 19 U.S.C. §1581(a). In its answer to the latter, the defendant admits jurisdiction over entry nos. 655-1151865-0 and 655-1152655-4 under 28 U.S.C. §1581(a)1 while denying any jurisdiction over the third entry at issue, No. 655-1146249-52. Concurring at the least with defendant's admission, the court, having granted plaintiff's application for expedition of this case3, proceeded to trial. B Goods encompassed by the entries numbered 655-1146249-5 and 655-1152655-4 were landed by the plaintiff under subheading 6109.10.0037 of the Harmonized Tariff Schedule of the United States 1 Defendant's admission as to these entries is conditioned upon a "deni[al] that this Court has jurisdiction under 28 U.S.C. §1581(a) with respect to the requested revocation of the Notices of Liquidated Damages issued in connection [there]with". Pre- trial Order, Schedule B-2. See Defendant's Answer, p. 1, para. 3; p. 6, paras. 4, 5, 6. 2 See id. See also Defendant's Pretrial Summary Memorandum, p. 2, paras. 5-10; p. 4, para. 1. 3 That application was heard in open court. The defendant continues its objection to expedition, asserting that this ap- proach has been to its "undue and significant detriment." Pre- trial Order, Schedule B-2, n. 1. No evidence has been adduced, however, at either the hear- ing or the trial in support of this assertion, and the record developed does not somehow show otherwise. Court No. 03-00068 Page 5 ("HTSUS") (2002) at a rate of duty of 17.4 percent ad valorem and subject to quota category 352. According to the plaintiff, entry no. 655-1151865-0 merchandise, which arrived under HTSUS subheading 6108.91.0015 "[d]ue to an error by the broker"4, is also "properly classified under subheading 6109.10.0037, HTSUS, subject to quota category 352." Amended Complaint, para. 26. That provision is set forth as follows: T-Shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton ........................................ * * * Women's or girls': Underwear (352) ........................ The defendant counters that the goods of entry no. 655-1151865-0 at issue are properly classifiable under suffix 60 to this foregoing subheading as "Women's or girls': . Other: . Tank tops: Women's (339)" while those of the other two impleaded entries belong under HTSUS subheading 6114.20.0010 (2002), to wit: Other garments, knitted or crocheted: * * * Of cotton ........................................ Tops: * * * Women's or girls' (339) ............... 4 Amended Complaint, para. 22; Plaintiff's Pretrial Memoran- dum of Law, p. 5. Court No. 03-00068 Page 6 As indicated, both of the classifications posited by Customs require a visa for category 339, which the importer did not produce, ergo the Service's notices to redeliver. The parties agree at bar that since the goods at issue are garments, their classification is controlled by the use for which they are donned. See, e.g., Pretrial Order, Schedules D-1, D-2; Plaintiff's Pretrial Memorandum of Law, p. 10; Defendant's Pretrial Summary Memorandum, p. 7 and Post Trial Brief, p. 3. Each refers to HTSUS Additional U.S. Rule of Interpretation 1(a) that a tariff classification controlled by use (other than actual use) is to be determined in accordance with the use in the United States at, or immediately prior to, the date of importation of goods of that class or kind to which the imported goods belong, and the controlling use is the principal use[.] They disagree, however, with respect to the class or kind to which the imported goods belong5, although each side refers the court to United States v. Carborundum Co., 63 CCPA 98, C.A.D. 1172, 536 F.2d 373, cert. denied, 429 U.S. 979 (1976), among other cases, for guidance in this regard. The merchandise in that particular case was an iron-silicon alloy powder for use in the manufacture of ferrous metals, but the parties take the position that the factors applied in determining therein whether that merchandise fell within 5 Compare, e.g., Plaintiff's Pretrial Supplementary Memoran- dum of Law passim and Plaintiff's Exhibit 124 with Defendant's Pretrial Summary Memorandum, pp. 10-17 and Post Trial Brief, p. 2 and Tr., pp. 29-31, introducing Defendant's Exhibits BJ-1 and BJ- 2. Court No. 03-00068 Page 7 a particular class or kind apply equally now to the women's wear herein, to wit, the general physical characteristics of the merchandise, the expectation of the ultimate purchasers, the channels, class or kind of trade in which the merchandise moves, . the environment of the sale (i.e., accompanying accessories and the manner in which the merchandise is advertised and displayed . .), the use, if any, in the same manner as merchandise which defines the class, the economic practicality of so using the import, the recog- nition in the trade of this use. 63 CCPA at 102, 536 F.2d at 377 (citations omitted). II The parties stipulated in the pretrial order, and the evidence adduced thereafter at trial confirmed, that St. Eve International, Inc. is known in its industry as a women's underwear or intimate apparel company which does not advertise or market directly to the ultimate consumers.