Case Information

TOMOEGAWA U.S.A., INC., Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

Appeal No. 88-1354

United States Court of Appeals, Federal Circuit

Dec. 2, 1988

1275

Finally, reference back is made to the Supreme Court decision in Hensley which required a full itemization for statutory compliance of any claim for attorney fees sought for a prevailing party. We have adhered to this requirement. In Naporano Iron & Metal Co. v. United States, 825 F.2d 403 (Fed. Cir. 1987), this court affirmed the Claims Court which denied fees under the EAJA in the absence of contemporaneous records of the exact time spent by attorneys on a case, their status and usual billing rates, and a breakdown of expenses. This showing was held necessary to determine the reasonableness of the fees claimed. Contemporaneous records were held essential to support the claim.

In summary, and judged against the foregoing standards, the present motion is fatally flawed for three reasons. First, the position of the government was substantially justified when it was taken, based on precedents then standing. Second, while plaintiff-appellant succeeded in obtaining a reversal of the trial court's judgment on the pleadings by in banc action on appeal, we did not reach the merits. Instead, we remanded for a trial on the merits. Thus, there is no prevailing party as yet. Finally, there is insufficient documentation. The claim submitted with the motion is as follows:

Bill of costs (filed separately and itemized on proper form)	$ 541.18
Administrative support cost (150 hours at $35 per hour)	5,250.00
Senior counsel, research and factual investigation and brief preparation (140 hours at $125 per hour)	17,500.00
Associate counsel, research and preparation of brief and submission of costs (145 hours at $100 per hour)	14,500.00
Total	$37,791.18

The submission is deficient on its face under the EAJA for lack of specificity under the authorities above cited.

COSTS

The parties will bear their own costs.

DENIED AND DISMISSED.

Steven P. Florsheim, Grunfeld, Desiderio, Lebowitz & Silverman, New York City, argued for plaintiff-appellant. With him on the brief was Robert B. Silverman.

Michael T. Ambrosino, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were John R. Bolton, Asst. Atty. Gen., David M. Cohen, Director and Joseph I. Liebman, Attorney in Charge, International Trade Field Office.

Before MARKEY, Chief Judge, and NEWMAN and MAYER, Circuit Judges.

PER CURIAM.

The judgment of the Court of International Trade, 681 F.Supp. 867 (1988), is affirmed on the basis of the court's opinion which we adopt, except insofar as it contemplates Dry Imaging Ink CP-7 and Toner for APECO 620. As to those articles, the judgment is vacated and the case remanded for further proceedings to determine the derivation and applicable duty. Costs to the government.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.

PAULINE NEWMAN, Circuit Judge, dissenting.

I respectfully disagree with the classification of these materials as photographic chemicals. The toners used in electrostatic printing are neither photographic nor chemicals. They do not work by a chemical process; they undergo or induce no chemical change; they produce no chemical effect. They are totally unlike the "photographic chemicals" reasonably contemplated in the tariff schedules.

Electrostatic copying is a printing process whereby the ink powder is electrostatically attracted to the image on the paper. There is no light ("photo")-induced chemical change. Electro-static printing, using dry inks, does not convert the printing medium into a chemical agent.

Classification of these toners as printing inks or ink powders is consistent with their use and their composition. Thus I would reverse the decision of the Court of International Trade.