United States Court of Appeals 

for the Federal Circuit ______________________ 

INTERNATIONAL CUSTOM PRODUCTS, INC.,

Plaintiff-Appellee

v.

UNITED STATES,

Defendant-Appellant

______________________ 

2016-1024

______________________ 

Appeal from the United States Court of International 

Trade in No. 1:07-cv-00318-GWC, Judge Gregory W. 

Carman.

______________________ 

Decided: December 15, 2016

______________________ 

GREGORY HUGH TEUFEL, OGC Law, LLC, Pittsburgh, 

PA, argued for plaintiff-appellee. 

CLAUDIA BURKE, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for defendant-appellant. Also represented by BENJAMIN C. MIZER, JEANNE E. DAVIDSON; AMY

RUBIN, EDWARD FRANCIS KENNY, New York, NY; YELENA 

SLEPAK, Office of Assistant Chief Counsel, International 

Trade Litigation, United States Bureau of Customs and 

Border Protection, New York, NY.

______________________ 
2 INT’L CUSTOM PRODS., INC. v. UNITED STATES

Before REYNA, LINN, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge. 

Appellant United States (“the Government”) appeals 

the decision of the U.S. Court of International Trade 

(“CIT”) awarding attorney fees to Appellee International 

Custom Products, Inc. (“ICP”) pursuant to the Equal 

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A)

(2012). See Int’l Customs Prods., Inc. v. United States

(ICP VII), 77 F. Supp. 3d 1319, 1335 (Ct. Int’l Trade 

2015). We have jurisdiction over the appeal pursuant to 

28 U.S.C. § 1295(a)(5). We affirm.

BACKGROUND

The facts and procedural history of this appeal are extensive, and a brief explanation of the nature of the action 

is warranted. ICP’s request for attorney fees stems from 

litigation

regarding the classification of certain white sauce 

imports under the Harmonized Tariff Schedule of 

the United States (“HTSUS”). Following a request from [ICP], the United States Customs and 

Border Protection (“Customs”) issued New York 

Ruling Letter D86228 (“the Ruling Letter”) classifying ICP’s white sauce as “sauces and preparations therefor” under HTSUS 2103.90.9060 (1999). 

Years later, Customs issued a notice of action reclassifying all pending and future entries of white 

sauce as “[b]utter and . . . dairy spreads” under 

HTSUS 0405.20.3000 (2005) (“the Notice of Action”), which increased the tariff by approximately 

2400%. 

After protesting and paying duties on a single entry, ICP filed a claim in the CIT, alleging the Notice of Action improperly revoked the Ruling 
INT’L CUSTOM PRODS., INC. v. UNITED STATES 3

Letter without following the procedures required 

by 19 U.S.C. § 1625(c) (2006). 

Int’l Custom Prods., Inc. v. United States (ICP VI), 748 

F.3d 1182, 1182–83 (Fed. Cir. 2014). Since ICP filed its 

first action in 2005, the CIT has issued five separate 

opinions on the matter, two of which were appealed to us. 

See generally Int’l Custom Prods., Inc. v. United States 

(ICP I), 29 Ct. Int’l Trade 617 (2005) (exercising jurisdiction pursuant to 28 U.S.C. § 1581(i)(4) (2000) and finding 

the Notice of Action null and void); Int’l Custom Prods., 

Inc. v. United States (ICP II), 467 F.3d 1324 (Fed. Cir. 

2006) (reversing the CIT’s exercise of jurisdiction in ICP I, 

vacating on the merits, and remanding with instructions 

to dismiss); Int’l Custom Prods., Inc. v. United States (ICP 

III), 32 Ct. Int’l Trade 302 (2008) (granting-in-part and 

denying-in-part the Government’s motion to dismiss ICP’s 

Complaint in a new action); Int’l Custom Prods., Inc. v. 

United States (ICP IV), 33 Ct. Int’l Trade 79 (2009) (denying the parties’ cross-motions for summary judgment); 

Int’l Custom Prods., Inc. v. United States (ICP V), 878 F. 

Supp. 2d 1329 (Ct. Int’l Trade 2012) (finding the Notice of 

Action null and void pursuant to § 1625(c)(1) and ordering 

Customs to reliquidate pursuant to the Ruling Letter); 

ICP VI, 748 F.3d 1182 (affirming ICP V); ICP VII, 77 F. 

Supp. 3d 1319 (awarding attorney fees to ICP pursuant to 

the EAJA). The case now returns to us for the third time.

DISCUSSION

I. Legal Standard and Standard of Review

The EAJA provides that “a court shall award to a prevailing party other than the United States fees and other 

expenses . . . unless the court finds that the position of the 

United States was substantially justified or that special 

circumstances make an award unjust.” 28 U.S.C. 

§ 2412(d)(1)(A). The Government’s position is substantially justified if it is “justified to a degree that could 

satisfy a reasonable person” and has a “reasonable basis 
4 INT’L CUSTOM PRODS., INC. v. UNITED STATES

both in law and fact.” Pierce v. Underwood, 487 U.S. 552, 

565–66 (1988) (internal quotation marks and citations 

omitted). The Government’s position includes the prelitigation actions of the relevant administrative agency, as 

well as the U.S. Department of Justice’s litigation arguments. See Smith v. Principi, 343 F.3d 1358, 1361–62 

(Fed. Cir. 2003). Although the Government’s position 

involves both prelitigation and litigation conduct, “only 

one threshold determination for the entire civil action is 

to be made.” INS v. Jean, 496 U.S. 154, 159 (1990) (footnote omitted). 

We review the CIT’s determination to award attorney 

fees under the EAJA for abuse of discretion. See Chiu v. 

United States, 948 F.2d 711, 713 (Fed. Cir. 1991). “[O]nly 

if the [CIT] erred in interpreting the law or exercised its 

judgment on clearly erroneous findings of material fact, or 

its decision represents an irrational judgment in weighing 

the relevant factors can its decision be overturned.” Id.

(citations omitted).

II. The CIT Did Not Abuse Its Discretion by Awarding 

Attorney Fees to ICP

The CIT found that the Government’s position was 

not substantially justified and, consequently, awarded 

attorney fees to ICP. ICP VII, 77 F. Supp. 3d at 1329–31, 

1335. The CIT determined that “[t]he record, considered 

as a whole, establishe[d] that the [G]overment position 

was rooted in a desire to avoid the timely revocation 

process” by using the Notice of Action, rather than following the procedures of § 1625(c)(1), to improperly revoke

the Ruling Letter. Id. at 1331. Thus, the CIT held that 

“the [G]overnment’s position was not founded on ‘a reasonable basis both in law and fact,’ ‘justified to a degree 

that could satisfy a reasonable person.’” Id. (quoting 

Pierce, 487 U.S. at 565). 

The Government argues that the CIT abused its discretion by committing five legal errors: (1) “using an 
INT’L CUSTOM PRODS., INC. v. UNITED STATES 5

improperly heightened legal standard,” Appellant’s Br. 9; 

(2) “reject[ing] the notion that surviving a motion to 

dismiss or a motion for summary judgment indicates that 

the surviving party has presented significant evidence 

that its position is substantially justified,” id. at 11–12; 

(3) “improperly minimiz[ing] the significance of [the 

Government’s] trial evidence because of [the Government’s] post-trial decision not to appeal adverse factual 

findings,” id. at 16; (4) “rejecting the Government’s position that an EAJA award was not warranted in light of 

the novel or unsettled area of law upon which one of the 

Government’s defenses was based,” id. at 18; and 

(5) “find[ing] that [Customs] was not substantially justified in its actions during the administrative phase of the 

matter,” id. at 21. We address these arguments in turn.

A. The CIT Did Not Apply a Heightened Legal Standard 

The Government first argues that the CIT misapplied 

the “substantially justified” standard when it stated that 

“the substantial justification standard is ‘slightly more 

stringent than a simple reasonableness standard,’ and 

requires that the Government show that its position ‘was 

clearly reasonable,’” because the Supreme Court rejected 

the “slightly more” and “clearly” standards in Pierce. Id.

at 10–11 (quoting ICP VII, 77 F. Supp. 3d at 1324–25). 

According to the Government, the recitation of the “slightly more” and “clearly” standards “undermines the [CIT]’s 

entire substantial justification review” and, thus, “the fee 

award should be vacated and the matter remanded . . . with instructions to apply the proper legal standard.” Id. at 11. We disagree.

The Government is correct that the CIT erred by reciting in the standard of review section of its opinion the 

“slightly more” and “clearly” standards, which the Supreme Court rejected in Pierce. See 487 U.S. at 567–68

(rejecting the “slightly more” and “clearly” standards 

(internal quotation marks and citation omitted)). Howev-
6 INT’L CUSTOM PRODS., INC. v. UNITED STATES

er, a single reference to an incorrect legal standard does 

not undermine a final decision, only its application does. 

Although the CIT referenced the “slightly more” and 

“clearly” standards once, ICP VII, 77 F. Supp. 3d at 1324–

25 (internal quotation marks and citation omitted), it 

repeatedly applied the correct “substantially justified” 

standard, evaluating whether the Government’s position

was “justified to a degree that could satisfy a reasonable 

person” and had a “reasonable basis both in law and fact,” 

Pierce, 487 U.S. at 565–66 (internal quotation marks and 

citations omitted). Indeed, the CIT repeated the word 

“reasonable” or its variants no less than nine times when 

evaluating the Government’s position. See ICP VII, 77 F. 

Supp. 3d at 1324 n.1, 1329 n.3, 1330–31. 

In contrast, there are no instances where the CIT actually applied the “slightly more” and “clearly” standards, 

as the Government acknowledged during oral argument. 

See Oral Argument at 1:33–2:11, http://oralarguments.

cafc.uscourts.gov/default.aspx?fl=2016-1024.mp3 (stating 

that “it’s true that when the [CIT] made its actual findings, it used the word ‘reasonableness’ and didn’t restate 

the ‘clearly reasonable[]’ standard or restate the ‘slightly 

more stringent’ standard”). The Government nevertheless 

argues that the CIT’s recitation of the heightened standards “infected” the CIT’s entire analysis. Id. at 2:38. 

However, the Government cites no affirmative evidence in 

support of its argument, and speculation does not demonstrate reversible error. See Rogers v. United States, 877 

F.2d 1550, 1557 (Fed. Cir. 1989) (holding that speculation 

cannot demonstrate an abuse of discretion). As a result, 

the CIT’s lone recitation of the “slightly more” and “clearly” standards, when viewed against the remainder of the 

CIT’s analysis, did not constitute an abuse of its discretion.
INT’L CUSTOM PRODS., INC. v. UNITED STATES 7

B. Surviving Summary Judgment Alone Does Not Prove

that the Government’s Position Was Substantially 

Justified

The Government next contends that “surviving a motion for summary judgment strongly suggests that the 

Government’s position [was] substantially justified for 

EAJA purposes” and that, consequently, the CIT erred by

holding otherwise. Appellant’s Br. 12. In particular, the 

Government alleges that the CIT “committed legal error” 

because it presented sufficient evidence to survive summary judgment, which it alleges demonstrates that the 

Government’s position during trial was substantially 

justified. Id. at 16. In support, the Government cites to 

the summary judgment standards of proof articulated by 

the Supreme Court in Anderson v. Liberty Lobby, Inc., id.

at 12 (citing 477 U.S. 242, 249–50 (1986)), and to precedent from the Seventh Circuit indicating that surviving a 

motion to dismiss or motion for summary judgment may

indicate that a position was substantially justified, id. at 

13–14 (citing United States v. Pecore, 664 F.3d 1125, 1135 

(7th Cir. 2011); United States v. Thouvenot, Wade & 

Moerschen, Inc., 596 F.3d 378, 382 (7th Cir. 2010)). 

As an initial matter, the Government “bears the burden of proving its position was substantially justified” to 

avoid the award of attorney fees under the EAJA, Libas, 

Ltd. v. United States, 314 F.3d 1362, 1365 (Fed. Cir. 

2003), and Anderson does not hold or otherwise suggest 

that this burden shifts if the Government survives summary judgment. Rather, Anderson concerns standards of 

proof at the summary judgment stage, not the award of 

attorney fees under the EAJA. See 477 U.S. at 247–57.

As the Government acknowledges, we have not yet directly considered whether surviving summary judgment 

ipso facto demonstrates that the Government’s position 

was substantially justified. When our precedent is silent 

on a particular question, “we may look to another circuit 
8 INT’L CUSTOM PRODS., INC. v. UNITED STATES

for guidance and may be persuaded by its analysis,” 

though “decisions from other circuits are not binding on 

this court.” Amerikohl Mining, Inc. v. United States, 899 

F.2d 1210, 1214 (Fed. Cir. 1990). 

We first turn to the approach taken by the Seventh 

Circuit, which the Government cites. Under the Seventh 

Circuit’s approach, surviving summary judgment may

weigh in favor of finding that the Government’s position 

was “substantially justified,” but it is not dispositive. See 

Pecore, 664 F.3d at 1135 (stating that surviving summary 

judgment is “objective, although not necessarily conclusive, evidence” of a substantially justified position (emphasis added) (citation and footnote omitted)).1 Indeed, 

the Seventh Circuit has recognized that, while surviving 

summary judgment creates a “presumption” of a substantially justified position under the EAJA,2 “something 

might emerge at trial that showed that the [G]overment 

really had no case at all[,] [o]r the [trial] judge might on 

reflection decide that he had erred grievously in refusing 

to grant the . . . motion to dismiss or motion for summary 

judgment.” Thouvenot, 596 F.3d at 382. Thus, even if the 

CIT were bound by the Seventh Circuit’s standard, the 

 

1 The Seventh Circuit’s statement in Pecore about 

surviving motions to dismiss and for summary judgment 

was dicta. See 664 F.3d at 1135 (stating that the comment was a “final point[] . . . [that] bear[s] mentioning” 

after having determined that “the intense nature of th[e] 

debate suggests . . . that either party’s position could be 

accepted as true by a reasonable person”).

2 The Seventh Circuit cited the Eighth Circuit’s decision in EEOC v. Liberal R–II School District to support 

the application of a presumption. Thouvenot, 596 F.3d at 

382 (citing 314 F.3d 920, 926 (8th Cir. 2002)). We are not 

aware of any other circuits having applied a presumption 

similar to the Seventh and Eighth Circuits.
INT’L CUSTOM PRODS., INC. v. UNITED STATES 9

CIT did not abuse its discretion by determining that the 

Government’s position was not substantially justified. 

Instead, the CIT properly considered “the entirety of the 

record . . . and the positions taken by the [G]overment as 

a whole,” including evidence and arguments presented 

after the CIT denied ICP’s motion to dismiss and motion 

for summary judgment, and determined that “the 

[G]overnment’s position was not substantially justified.” 

ICP VII, 77 F. Supp. 3d at 1329. 

Our discussion of Seventh Circuit case law does not 

mean that we have adopted the “presumption” articulated 

in those decisions. Indeed, avoiding summary judgment 

does not necessarily mean that the position taken at that 

stage has a reasonable basis in law and fact. For example, pursuant to Federal Rule of Civil Procedure 56(d), 

“the court may . . . defer consider[ation of] the motion or 

deny it” when “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts 

essential to justify its opposition.” Such circumstances 

may arise because, inter alia, the party asserting Rule 

56(d) did not possess all of the requisite information, 

necessitating discovery, or the party moving for summary 

judgment presented temporarily unverifiable or otherwise 

unusable evidence. The circumstances also may arise

simply because final resolution may require the trier of 

fact to observe witnesses and determine their credibility. 

Thus, rather than attach a presumption to the Government’s conduct based on a single action taken, we find it 

more appropriate to assess the Government’s conduct in 

light of the entire record, as the Supreme Court has 

instructed. See Jean, 496 U.S. at 159 (explaining that 28 

U.S.C. § 2412(d)(1)(A) does not refer “to separate parts of 

the litigation” and that courts should consider all stages 

of the dispute before making a single determination about 

the Government’s conduct). 
10 INT’L CUSTOM PRODS., INC. v. UNITED STATES

C. The Government’s Remaining Arguments Are Unpersuasive 

The Government’s remaining arguments similarly do 

not demonstrate an abuse of discretion. The Government 

argues that the CIT incorrectly determined that the 

Government conceded a factual issue (i.e., that white 

sauce conformed to the Ruling Letter) by deciding not to 

appeal this adverse factual finding. Appellant’s Br. 16–

18. And the Government correctly asserts that courts 

should not consider the Government’s decision not to 

appeal an issue as a concession on the issue’s merits. See 

Oral Argument at 3:52–5:26, http://oralarguments.

cafc.uscourts.gov/default.aspx?fl=2016-1024.mp3; see also 

United States v. Mendoza, 464 U.S. 154, 161 (1984) (“Unlike a private litigant . . . , the Solicitor General considers 

a variety of factors, such as the limited resources of the 

[G]overnment and the crowded dockets of the courts, 

before authorizing an appeal.”). However, the issue was 

one of many reasons the CIT determined that the Government’s position was not “substantially justified” for 

purposes of the EAJA, and the CIT provided numerous 

other reasons why Customs “not only knew that it was 

effectively revoking the Ruling Letter, but it unreasonably 

ignored the requirement that a ruling letter governs 

liquidations until revoked.” ICP VII, 77 F. Supp. 3d at 

1330; see id. at 1329 (noting that “[m]ultiple officials at 

[Customs] saw an obvious nexus between a rate advance 

of the white sauce entries in a Notice of Action and revocation of the Ruling Letter and raised warnings about 

doing that” and that the decision “was based not on 

complying with the legal restraints identified by others, 

but on expedience” (footnote omitted)).

The Government next contends that the CIT improperly found the Government’s position unjustified because “it 

was unsettled whether a Customs Form 29, Notice of 

Action, could be characterized as an ‘interpretive ruling or 

decision’ under . . . § 1625(c) such that its issuance could 
INT’L CUSTOM PRODS., INC. v. UNITED STATES 11

trigger notice and comment procedures required for the 

revocation of a ruling letter.” Appellant’s Br. 19. According to the Government, the CIT also improperly relied on 

the vacated decision in ICP I in finding the Government’s 

position unjustified. Id. at 19–20. However, the CIT’s 

decision primarily relied on Customs officials’ statements—made before the Notice of Action issued—that 

notice and comment was required. See ICP VII, 77 F. 

Supp. 3d at 1332 (“But more importantly for the question 

of special circumstances, the purely legal arguments 

about the nature of a Notice of Action, pursued to final 

decision by the [G]overnment’s attorneys, do not appear to 

have been a basis for the [G]overnment’s position at the 

time [Customs] issued the Notice of Action. The Court 

thus finds that the [G]overnment’s position here was a 

post-hoc attempt to justify a rate advance [Customs] knew 

to be contrary to the governing legal framework . . . .” 

(emphases added)).

Finally, the Government contends that the CIT abused 

its discretion by finding that Customs’s decision to issue 

the Notice of Action was not “substantially justified.” 

Appellant’s Br. 21–23. This argument is meritless. 

Customs was aware that notice and comment was required but, despite the legal ramifications, deliberately 

decided to forego it. See, e.g., ICP VI, 748 F.3d at 1188–89 

(discussing Customs’s deliberations and affirming the 

CIT’s finding that Customs was required to comply with 

§ 1625(c)(1)); ICP III, 32 Ct. Int’l Trade at 309 (explaining 

the “months-long deliberative process” during which 

many Customs officials stated that the Notice of Action 

must comply with § 1625(c)(1)). Therefore, the CIT was 

well within its discretion to make this finding. 
12 INT’L CUSTOM PRODS., INC. v. UNITED STATES

CONCLUSION

We review the CIT’s determinations on whether the 

Government’s position was “substantially justified” for 

abuse of discretion, see Chiu, 948 F.2d at 713, and the CIT

did not abuse its discretion. We have considered the 

Government’s remaining arguments and find them unpersuasive. For these reasons, the final decision of the 

U.S. Court of International Trade is 

AFFIRMED

COSTS

Costs to ICP.