Slip O p. 13-6 UNITED STA TES COURT OF INTERNATIONAL TRADE

Before: Grego ry W. Carman, Judge CourtNo. 07-00318

Carman, J.: Before t he Court i s a moti on by Defendant Uni ted S tate s styled as “Defendan t’s Mo tion for Rev i ew of the Clerk ’s Taxi ng of ICP’s [Plainti ff International Custom Products, Inc.] Bi ll of Costs and Mot i on for a S tay [o f] the Taxing of ICP’s Bi ll of Costs” (“Mot i on for R eview”) . See ECF No. 261. Briefly, the follo wing backgro und i s relevantto Defendant’s motion. After a benchtr i al, the Cour t enter ed judgment o n November 20, 2012. S ee Slip Op. 12-140 and Judgment, ECF No. 258. On December 4, 2012, well w i thi n the 60 day lim i t for Defendan t United Stat es to appeal the j udgment pursuant to Rule 4(a)(1) (B) of the Feder al Rules of Appellate Procedure, Plainti ff fi led a Bi ll of Costs pursuant to Rule 54(d)( 1) of the Rules of the Uni ted S tate s Court O f Internat i onal Trade (“USCI T”) and the US CIT Gui deli nes for Bi ll of Costs. ECF No. 259. O n Dec ember 20, 2012, the Cler k of the Co urt fil ed an order enter ing ICP’s Bi ll of Costs. ECF No. 260. Lat er t hat day t he INTERNATIONAL CUS TOM PRODUCTS, INC.,

Plainti ff,

v. UNITED STATES,

Defendan t.Interna tiona l Custom Pro ducts, Inc. v. Un ited States, Page 2

Court No. 07-00318 Uni ted S tate s fi led the Mo tion for Rev i ew. The gov ernment ar gues that ICP fi led i ts Bi ll of Costs premature ly, ci tin g the offi ci al USCI T Gu i deli nes for Bi lls of Costs, whi ch s tate : 1 Wi thi n thi rt y (30) days after the expirati on of the tim e allowed for appeal of a final judgment, whether or not an appeal has been fi led, the prev ai ling party shall serve on the atto rney for the adver se party and fi le wi th the clerk of court the or i gin al and one copy of a Bi ll of Costs and Di sbu rsements (For m 21), tog ether wi th a certifi cate of serv i ce. The gov ernment contends that t hi s language means that “[t]he 30 day per i od for fi lling [si c] the bi ll of costs does not beginunti l the expiration of the tim e allowed for appeal of a final judgment,” and that I CP’s fi ling of its B i ll of Costs was therefore pr emature. Mot i on for R eview at 3. Th e go ver nment therefor e requests that t he Courtvacate t he Clerk ’s order taxing the Bi ll of Costs. Id. The gov ernment also asks that t he Courti ssu e an order stayin g the t axin g of Plainti ff’s B i ll of Costs unti l the conclus i on of any appeals or t he expirati on of the gov ernment’s time to appeal. Id. Accordin g to the go ver nment, a stay i s “requi red t o

avo i d” the “unfai r r esult” that would occu r if the Cour t were t o per mi t the t axin g of ICP’s Bi ll of Costs prior to any appeal, since that appeal mi ght o ver turn the j udgment on whi ch the Bi ll of Costs i s found ed. Id. at 3-4.

The USCIT Gui deli nes for Bi ll of Costs have “the same force and effect as the 1 prov i si ons of [Rule 54].” See USCI T Rule 54, Practi ce Comment.Interna tiona l Custom Pro ducts, Inc. v. Un ited States, Page 3

Court No. 07-00318 ICP responds that the g ov ernment has mi sread the US CIT Gui deli nes for Bi ll of Costs. Plainti ff’s Res ponse to M otion for Rev i ew and Stay o f Taxing of Costs (“ICP’s Response”) at 1, ECF No. 262. According to Plai nti ff, the “clear intent o f the Gui deli nes i s to set a deadlin e before whi ch a b i ll of costs mu st be fi led,” and “not a window of tim e wi thi n whi ch a b i ll of costs mu st be fi led.” Id. ICP contends that “nothing i s goin g to change between now and the expiration of the ti me allowed for appeal that would i mpact ICP’s b i ll of costs.” Id. at 2. Plainti ff s tate s that i t does notobject t o “an or der pr ov i ding that no execution may i ssu e on costs taxed in thi s matter . . . until after the expiration of the tim e allowed for t he Defend ant to appeal [the judgment], or whi le an appeal of that j udgment i s pending, i f the Defendan t appeals,” and provides a draft order to t hat effect. Id. at 2, Att ach. Plainti ff’s reading of the Gui deli nes i s correct. A party may fi le i ts Bi ll of Costs pursuant to US CIT Rule 54 and the USCI T Gu i deli nes for Bi ll of Costs prior to the expirati on of the per i od for appeals to be fi led. As Plainti ff notes, nei ther t he Rule nor the Gui deli nes s peci fi es that the fil i ng of a Bi ll of Costs mus t awai t the ex pi rat i on of the period for fi li ng of an appeal. The gove rnment appears to rely on the not i on that it would be i mproper to file a Bi ll of Costs prior to the expiration of the appeals peri od or , i f fi led, the deci si on of an appeal becau se the judgment for ming the basi s for the BillofInterna tiona l Custom Pro ducts, Inc. v. Un ited States, Page 4

Court No. 07-00318 Costs may be ov ert urned by an appeal. But the language of the g ui deli nes s peci fi cally permi ts the fi li ng of a Bi ll of Costs whi le an appeal i s pending when they state t hat the Bi ll of Costs deadline i s set for 30 days after expirati on of the appeals deadline, “whether or not an appeal has been fi led.” Gui deli nes for Bi ll of Costs (emphas i s added). Th e Rule and the Gui delines therefor e mus t be read as explic i tly cont emplating the fi li ng of a Bi ll of Costs, even where t he judgment o n whi ch the Bi ll of Costs i s bas ed i s cu rr ently under appellate r eview. The gov ernment’s pro posed i nterpr etat i on would read t he above-emphasi zed claus e out o f the Gui deli nes, and the c lause w ould be render ed a nulli ty if a party could not file a Bi ll of Costs whi le a case w as on appeal. It i s therefor e clear, as Plainti ff argues, that not hing affecting the Billof Costs changes between the judgment and the ex pi rat i on of the t i me allowed for appeal requiring Plainti ff to defer fi li ng the Billof Costs unti l after t he appeals ti me expi res. The Court wil l i ssu e a stay, howev er, o n i ssu ance of any executi on on costs taxe d and proceedi ngs to collect such c osts unti l after t he expirati on of the t i me for appeal, or duri ng pendency of any appeal taken, si nce thi s allays D efendant’s conc erns and Plainti ff does not object. It is therefore ORDERED that Defendant’s Mot i on for R eview of the Clerk’s Taxing of ICP’s Bi ll of Costs and Mot i on for a S tay o f the Taxi ng of ICP’s Bi ll of Costs i s deni ed; and i t isInterna tiona l Custom Pro ducts, Inc. v. Un ited States, Page 5

Court No. 07-00318 furthermor e ORDERED that is suan ce of any execution on costs taxed i n thi s matter, o r proceeding taken to collect any such costs, s hall be, and hereby is, stayed untilafter t he expirati on of the t i me allowed for the Defendant to appeal t hi s Court’ s November 20, 2012 Judgment, or whi le any appeal of that Judgment is pending (should D efendant fi le an appeal).

__/s/Gregor y W. Car man________ Grego ry W. Carman, Judge Dated: January 10, 2013

New York, New York