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Watkins v U.S. Bureau of Customs and Border Protection

Case No. 09-35996 (C.A. 9, May. 6, 2011)

Appellant, Samuel Watkins (“Watkins”), a copyright and trademark attorney, appeals pro se the district court’s summary judgment in favor of the United States Bureau of Customs and Border Protection (“CBP”) in his eight Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, requests for 19 C.F.R. § 133.21(c) Notices of Seizure of Infringing Merchandise (“Notices of Seizure” or “Notices”) from the Ports of San Francisco, Miami, El Paso, Seattle, Newark/New York, Los Angeles/Long Beach, and Boston. Watkins’s FOIA request to the Port of Seattle sought “[a]ll notices to trademark owners required to be made pursuant to 19 C.F.R. Section 133.21(c), dated during the period January 1, 2005 through July 31, 2007, regarding merchandise seized at the Port of Seattle as being counterfeit, as defined in 19 C.F.R. Section 133.21(a).” Watkins made almost identical requests to the remaining six ports identified above.

According to Watkins, he did not receive any response or acknowledgment of the FOIA requests he sent to the Ports of San Francisco and Miami, as well as a second request to the Port of Seattle. He further contends that the Port of El Paso only informed him that his request had been sent to the FOIA division in Washington D.C., without providing any further information on the status of the request. The Ports of Newark/ New York, Los Angeles/Long Beach, and Boston demanded, as a prerequisite to responding to Watkins’s request, that he make an advance payment to cover the processing fees for his FOIA request. The Ports required advance processing fees ranged from $500 to almost $30,000. In order to avoid paying what he deemed to be exorbitant processing fees for his various FOIA requests, Watkins limited the breadth of his FOIA requests to cover a shorter time-period.

Commercial importers provide the information revealed in the Notices of Seizure to the Agency when they “make entry” into the United States. “Making entry” consists of providing information to the Agency, including the port of entry, description of the merchandise, the quantity of merchandise, and the name and address of both the exporter and the importer. The Agency largely maintains the confidentiality of this information because it is important that it receive accurate information from importers. The Agency gives this information in the Notices of Seizure only to notify trademark owners upon the seizure of goods bearing a counterfeit mark “that infringe upon their trademark that has been recorded with [the Agency].”

The Notices of Seizure include the following information: (1) the date the merchandise was imported; (2) the port of entry; (3) description of the merchandise; (4) quantity of the merchandise; (5) country of origin of the merchandise; (6) name and address of the exporter; (7) name and address of the importer; and (8) the name and address of the manufacturer. The eighth item of information is not always known to the Agency and is therefore sometimes excluded from the Notice of Seizure. In addition to the above information, the Notices of Seizure also include the name of the individual responsible for receiving the Notices on behalf of the trademark holder.
 

 

Judge(s): Donald E. Walter
Jurisdiction: U.S. Court of Appeals, Ninth Circuit
Related Categories: Administrative Law , Communications , Government / Politics , International
 
Circuit Court Judge(s)
Pamela Rymer
Randy Smith
Donald Walter

 
Trial Court Judge(s)
James Robart

 
Plaintiff Lawyer(s) Plaintiff Law Firm(s)
Samuel Watkins Pro Se

 
Defendant Lawyer(s) Defendant Law Firm(s)
Kayla Stahman U.S. Department of Justice

 

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tion could cause "substantial harm to the competitive position ment and facts sufficient to establish an exemption, then the inspection of records made available in this matter." 19 july 13, 2010--seattle, washington (1991) (foia "was enacted to facilitate public access to gov- (4) trade secrets and commercial or financial information adopted separate guidance under foia" dhs's fee regula- the documents." lahr, 569 f.3d at 973 (quoting ray, 502 u.s. here, the agency failed to inform us if any of the notices parties." fourth, the court found that the agency "c[ame] g.c. micro corp., 33 f.3d at 1115. the parties opposing dis- ment." 401 u.s. 402, 416, 91 s.ct. 814, 823 (1971). the judge n.r. smith 6019watkins v. u.s. bureau customs & border 2007, regarding merchandise seized at the port of seattle as [8] here, disclosure of the notices of seizure to an merchandise; (5) country of origin of the merchandise; (6) components of dhs (which includes cbp). however, an various business transactions, as consignees or dis- entry; (3) description of the merchandise; (4) quantity of the students against genocide v. dep't of state, 257 f.3d 828, partial concurrence and partial dissent by cy's release of the notices to affected trademark holders did division in washington d.c., without providing any further the likely effects of disclosure[,] . . . [c]onclusory and general- d.c. circuit and the second circuit. see students against pliers of merchandise in the overseas market place" indus., inc. v. u.s. customs & border prot. bureau, 457 f. c.f.r. § 103, and not to dhs's fee provisions, which are closures under foia. u.s. dep't of justice v. reporters the merchandise; (4) the quantity involved; (5) the name and seized" may be up to "value that the merchandise would have had it if after considerable back and forth between watkins and the importer's reputation and future business with aggrieved cli- on de novo review, allegations (1) and (2) are meritless, 6018 watkins v. u.s. bureau customs & border lic right to secure such information from possibly unwilling ferred to the department. except to the extent a being counterfeit, as defined in 19 c.f.r. section 133.21(a)." 2:08-cv-01679-jlrunited states bureau of customs 2010 wl 1407955 (9th cir. apr. 9, 2010), foia was enacted to avoid paying what he deemed to be exorbitant processing goods are not illicit contraband at the risk of forfeiting the informed citizenry, vital to the functioning of a democratic information is likely to have either of the following effects: counterfeit. the agency asserted in its affidavits to the district chains, patterns of importation and distribution, closed) that provide descriptive details of their cargo, including: (1) the aggrieved trademark owner is mandated by statute. 19 u.s.c. foia exemption 4. however, the district court's conclusion (d.c.cir. 1974)). the government need not show that releas- applies, are reviewed de novo.' " id. (quoting lane v. dep't cottone, 193 f.3d at 555. in other words, the information competition in a relevant market. we embrace a common tice may have been to repeal the obsolete fee provisions . . . in a permanent public record" to effectuate waiver), it should or aids and abets the importation of [counterfeit] merchandise . . . that is aerial photographs); cottone v. reno, 193 f.3d 550 (d.c. cir. towers, 152 f. supp. 2d 1189 (n.d. cal. 2001) (concluding 6032 watkins v. u.s. bureau customs & border ," but it failed to do so. (rb 44-45). the history of the cbp's means information whose disclosure is "likely to . . . cause ably are--developing a business relationship with them would leged or confidential." gc micro corp. v. defense logistics established the relevant market as the entire market for den of demonstrating that the exemption properly applies to not waive exemption 4. the agency was statutorily obligated exemption, 5 u.s.c. § 552(b)(4) ("exemption 4"). otherwise, promulgated foia regulations. because cbp did not seek court need not conduct a sophisticated economic analysis of district of washington, for defendant-appellee united states asserted, for deleting exempt matter being withheld from petitors.' " (citation omitted)). were revisions that demonstrate that the fee regulations are ments cbp made to its foia fee regulations after becoming shielding them from public disclosure, cbp waived the confi- thus, competitors have a significant incentive not to work forth with more than adequate information detailing the vari- sure of various cia documents and the location of a certain n.r. smith, circuit judge, concurring in part and dissenting tion that could not already be gleaned from public shipping still valid. cbp's website even directs individuals to 19 239 (2d cir. 2006), not a direct disclosure by an agency to a third party. whether the decision was based on a consideration of the rele- tective order. moreover, none of these cases presented a scenario in on summary judgment, we employ a two-step standard of cerns of confidentiality in circumstances like those presented ply any injury to competitive position . . . ." pub. citizen as plaintiff-appellee. criminal investigations or matters of national security. see id. under this subpart pursuant to approval by the cy's motion for summary judgment and its request for a pro- u.s.c. § 552(b)(4). § 552(b)(1)-(9) (2006). "foia's `strong presumption in favor de novo, "an adequate factual basis exists to support the dis- competitors will rush to exploit information about manufac- for the western district of louisiana, sitting by designation. tial treatment with cbp under § 1431(c)(1)(a), this was apparently not an into the united states are "actually competitive," it did not supplier of illicit goods creates a "likelihood of substantial agency]." foreigntrade/press-release/2009pr/final_revisions/09final. named in the notices of seizure is foreclosed by lion raisins. until cbp repeals the foia fee provisions found at 19 harm "should not be taken to mean simply any injury to com- gations of substantial competitive harm . . . are unacceptable carriers must file manifests with the cbp (which are publicly dis- supp. 2d. 6, 10-11 (d.d.c. 2006). the district court was not in this case. therefore, when an agency freely discloses to a v. d.c. no. must be "freely available." u.s. dep't of justice v. reporters the government properly seized and forfeited merchandise harm." second, the court noted that although an agency ordi- tion that the revisions were merely technical (er 12), they harm . . . are unacceptable and cannot support an agency's competitors. see 5 u.s.c. 552(b)(4); pub. citizen health, 704 before: pamela ann rymer and n. randy smith, petitors. competitive harm should not be taken to mean sim- see herrick v. garvey, 298 f.3d 1184, 1193 (10th cir. 2002) statutory exemptions to justify the withholding of any [6] despite watkins's arguments that the agency did not states "[e]xcept to the extent a department component has only invite investigations and set importers up for crushing i.e., waiver of an exemption, is a `proposition that if true 1 that might result," gc micro corp., 33 f.3d at 1115, the relevant market] and (2) a likelihood of substantial competi- "at the same time, foia contemplates that some informa- trademark attorney, appeals pro se the district court's sum- agency must demonstrate that the information it sought to u.s. reconnaissance systems (the basis for the government's ized allegations of substantial competitive harm . . . are unac- while the "public domain" test articulated by the d.c. cir- pursuit of a related private civil remedy for trademark c.f.r. § 103, they remain valid, and cbp must follow them. b. james l. robart, district judge, presiding counsel 80 (d.c. cir. 1992). "[w]e must be confident that the infor- i think we should. not only would adopting this test put us in information contained in the notices of seizure to affected notices of seizure cannot be commercial because it pertains the agency also tion marks and citation omitted). instead, substantial harm is had an adequate factual basis for its decision. courts can rely were genuine, according to the manufacturer's suggested retail price . . . ." to claim an exemption to a foia request for the disclosed a single notice of seizure, the notice reveals little informa- allowing the government to withhold certain information from ers, with valuable insight into importers' supply one." id. mation sought is truly public and that the requester receive no which the government had already provided a no-strings- attached disclosure of the confidential information to a private liable for trademark infringement and (2) aware of the coun- sumption of counterfeiting liability. tions will control. 6 c.f.r. § 5.1(a)(2). cbp's foia fee regu- the notices of seizure to the agency when they "make entry" turers and exporters either suspected of or implicated in a 6026 watkins v. u.s. bureau customs & border the cbp stated in its reply brief, "the better and cleaner prac- consumers, not the revelation of proprietary information to *the honorable donald e. walter, senior united states district judge bureau of customs and border protection. requested documents." id. at 1291 (citations omitted); see would give victory [to plaintiff] independent' of whether released. id. partial concurrence and partial dissent by judge rymer; about an offending importer's trade operations. this no- assessments of customer demands and business rela- the issuance of a notice is akin to a finding of probable cause. in the notices does constitute `confidential' information." the of seizure also include the name of the individual responsible third party.1 harm in the foia context . . . [is] limited to harm flowing vant factors and whether there has been a clear error of judg- cbp needed dhs's approval to maintain its previously- exemptions, pursuant to which the government can withhold finally, allegation (3)--which complains that consumers served in some public record. therefore, it should make no i part company only with respect to whether we should harm." 19 (d.c. cir. 1999)); cna fin. corp. v. donovan, 830 f.2d importer. the agency largely maintains the confidentiality of dhs's approval, dhs's foia regulations properly governed processing fees ranged from $500 to almost $30,000. in order see id. § 133.22(a). if an importer cannot obtain written per- business relationships with manufacturers and sup- that the notices of seizure fall within the "trade secrets" vits are detailed enough to allow the court to make an inde- person from whom it was obtained.' " herrick , 298 f.3d at dise ("notices of seizure" or "notices") from the ports of san 6 c.f.r. § 5.1(a)(2) (emphasis added). 6011 official hands." dep't of air force v. rose, 425 u.s. 352, port of seattle. he further contends that the port of el paso establish, a priori, that the markets for all products imported from whom the information was obtained." id. substantial 569 f.3d 964, 973 (9th cir. 2009). the statute contains nine date of importation; (2) the port of entry; (3) a description of gross weight; (4) the name of the vessel; (5) the seaport of loading; (6) the imported goods. there is no set test for determining actual from the affirmative use of proprietary information by com- only issue before the court is whether the disclosure would description of the merchandise, the quantity of merchandise, (1) to impair the government's ability to obtain necessary allegations do not "demonstrat[e] that the exemption properly the nation's borders." third, the court found that the agen- agency, 33 f.3d 1109, 1112 (9th cir. 1994). angeles/long beach, and boston. watkins's foia request to cir. 1983) (seeking disclosure of cia and fbi investigation apply to each component of the department. depart- fda, 704 f.2d 1280, 1290 (d.c. cir. 1983). francisco, miami, el paso, seattle, newark/new york, los would compromise the purportedly sensitive information for the public domain doctrine to apply, the specific infor- 6034 watkins v. u.s. bureau customs & border ingly creates an obligation for the government to disclose the 2004) (citing church of scientology v. united states dept of cbp officials discover and detain items with a "spurious ing bosnian serb atrocities committed in 1995 to the u.n. trademark that is identical to, or substantially indistinguish- not conduct a sophisticated economic analysis of the likely to satisfy the harm element, the government needs to show the move v. board of governors of the federal reserve system, 463 f.3d closure requirements under 19 u.s.c. § 1431(c)(2), or apply for confiden- not enough "evidence that the agency reviewed its foia fee 6028 watkins v. u.s. bureau customs & border because the agency's declarants had "extensive knowledge of security council. 257 f.3d at 836. the photos were displayed even if a case could be made for exempting from disclo- ernment documents."). the statutory scheme provides public [3] watkins argues that the information contained in as to the fees charged to watkins is reversed. we remand for withholding provided adequate factual basis for application of fied in the notice does business in counterfeit to be collected "before sending copies of requested records to under 19 u.s.c. § 1526(e) because it had probable cause to dated during the period january 1, 2005 through july 31, f.2d 1280, 1291 n.30 ("we emphasize that . . . competitive nent public record" in this case. while the public domain test court that disclosure of the notices of seizure would: . . . . obtained from a person and privileged or confidential . . . ." 5 micro corp., 33 f.3d at 1112-13 (9th cir. 1994) (citing nat'l the fact that seizure involves mandatory detention of the watkins's requests. the district court discounted the amend- 6029watkins v. u.s. bureau customs & border 6016 watkins v. u.s. bureau customs & border united states court of appeals sort of legitimate commercial activity." the district correctly 3. importer in the region, provided the disclosures were not pre- edges, "generalized allegations of substantial competitive the public, 5 u.s.c. § 552(b), there is a " `strong presumption the port of seattle sought "[a]ll notices to trademark owners [9] taken to its logical extreme, the "public domain" test able from, a registered trademark." 19 c.f.r. § 133.21(a)-(c); documents). in such cases, the presumption in favor of disclo- admin., 925 f.2d 1225, 1227 (9th cir. 1991) (holding that cbp's regulations that set out their foia fee schedule can cannot conclude that information contained in a notice of sei- even a case applying the public domain test to exemption 4 concerned seizure sent during the relevant time periods, citing foia tion does not apply to matters that are (4) trade secrets and cuit is one persuasive way of determining when the govern- the fine for "any person who directs, assists financially or otherwise, a. foia exemption four most cases applying the public domain test have grappled trademark holders, this limited disclosure to interested third- cause substantial harm to the competitive position of the pro- exemption 4. first, the court found "that information redacted tion in the notices of seizure is "confidential" within the supplies a reasonably detailed affidavit describing the docu- zure. in the regulations." ous harms that could befall importers if the notices of seizure ket by requesting all notices of seizure. therefore, watkins disclosed in the carrier manifest is the name and address of closure need not show actual competitive harm, but must pro- located at 6 c.f.r. § 5.11. mate aspects of an importers business such as supply chains 1132, 1154 (d.c. cir. 1987) ("to the extent that any data dentiality of the notices by disclosing them to trademark 6027watkins v. u.s. bureau customs & border competitive harm." notices of seizure are issued only after exemption applies."). see bowen v. u.s. food & drug at 173). because of its overarching goal of public disclosure, [7] although exemption 4 applies to notices of seizure, search and duplication and under no circumstances is there a the act specifically provides: "(b) this section [requiring disclosure never repealing them. regardless of the district court's asser- information in the future; or (2) to cause substantial harm to watkins made almost identical requests to the remaining six mation sought must have already been "disclosed and pre- even if cbp or an aggrieved trademark owner opened up the a notice does not by itself demonstrate the importer was (1) goods." opinion narily provides "affidavits from the submitters of the informa- f.3d 964, 973 (9th cir. 2009) (quoting u.s. dept. of state v. at 35-36 (seeking disclosure of classified cia documents and more than what is publicly available before we find a waiver." 704 f.2d at 1291 (emphasis added). therefore, on de novo on the revelation of potentially embarrassing information to exemption 4 properly applies." (quoting niagara mohawk narrowly. id. (citation omitted). "an agency that invokes one requested by watkins involved mistaken seizures. it simply court further stated that the inquiry must "be searching and 6025watkins v. u.s. bureau customs & border district court need look no further in determining whether an information to the agency, including the port of entry, 1999) (seeking fbi wiretap recordings relating to a criminal information which is obtained by the government . . . but exceeds $1 trillion annually. see u.s. census bureau u.s. government imposes no restrictions on the owner's use of the manifests. ported. without the importer's participation"; and (3) "may decision to withhold requested documents." public citizen, upon the seizure of goods bearing a counterfeit mark "that ance under foia, the provisions of this subpart shall acknowledgment of the foia requests he sent to the ports of best, doubtful. tion omitted; emphasis in original). although "the court need ceptable and cannot support an agency's decision to withhold because they make only speculative and generalized state- tion network and demand trends could be revealed. see gilda confidential."1 tion objecting to disclosure, . . . the ninth circuit has carved trademark owner "for examination, testing, or other use in which would customarily not be released to the public by the out exceptions in cases where the agency submits a declara- there is actual competition. recognizing "the law does not v. u.s. dept. of agriculture, 354 f.3d 1072, 1079 (9th cir. and cannot support an agency's decision to withhold strings-attached disclosure thus voids any claim to confidenti- review, the agency failed to rebut the "strong presumption in confidential. since the government conceded that importers only informed him that his request had been sent to the foia for the ninth circuit entities will be subjected to additional scrutiny from the u.s. 6030 watkins v. u.s. bureau customs & border [5] the major area of dispute is whether or not the infor- walter, district judge: appellant, samuel watkins ("watkins"), a copyright and name and address of the importer and the name and address of the shipper; senting a range of legitimate importers. phonebook and faxed a copy of the seizure notice to every ble importer would want to mirror is one involving manufac- 1193 (citation omitted). fee for determining whether an exemption can or should be of the person from whom the information was obtained." g.c. tive injury to importers whose products have been seized as (2) the general character of the cargo; (3) the number of packages and contain plainly commercial information, which discloses inti- ports, the ports provided watkins heavily redacted notices of trademarks appearing on the goods or packages. see 19 u.s.c. § 1431(c). information in the notice that has not already been publicly in a counterfeiting seizure. the last supply network a reputa- for publication and capriciousness. citizens to preserve overton park, inc. v. stantial civil fines, see 19 u.s.c. § 1526(f).3 ing the documents would cause "actual competitive harm." id. a component as merely technical amendments, which were able added utility to competitors. the notices include: (1) the with manufacturers and other supply chain entities implicated record located in response to a request in order to determine not be the only test for government waiver. ties will bear their own costs. exemption to these fees exists, and it states: into the united states. "making entry" consists of providing tributors seek to deal directly with the manufacturer, exempted from disclosure. yet, as even the majority acknowl- parks & conservation ass'n v. morton, 498 f.2d 765 the eighth item of information is not always known to the may be led "to believe that the importer identified in the hood of substantial competitive injury if the information were 4. department component has adopted separate guid- opinion by judge walter; to "the unlawful importation of counterfeit goods, and not any explained that "a seizure notice reflects only a suspicion that third party confidential information covered by a foia 1. line with other circuits, but unlike the majority's retreat from department. notice to his attorneys, business affiliates, trade organiza- only issue before this court is the second prong "substantial kayla c. stahman, assistant united states attorney, western [10] "it is a familiar rule of administrative law that an governors accountable to the governed." john doe agency v. agency must abide by its own regulations." fort stewart favor of disclosure," see lahr, 569 f.3d at 973, because its seized can challenge the seizure both administratively and in 1999); fitzgibbon v. cia, 911 f.2d 755,765-66 (d.c. cir. l.ed.2d 462 (1989) (internal quotation marks omitted). § 5.11(b)(7). in addition, dhs's regulations allow for this fee tionships"; (2) be unfair to importers who "expend government. the mere suspicion of counterfeiting risks costly counterfeiting operation, because future shipments from those analysis of the substantial competitive harm to [the importers] in favor of disclosure,' " lahr v. nat'l transp. safety bd., 569 mation contained in the notices of seizure is privileged or served in a permanent public record." cottone, 193 f.3d at 837. this careful procedure prevented council members from 6024 watkins v. u.s. bureau customs & border to create a "judicially enforceable public right to secure" gov- ment, cbp did not identify which of the notices would meet will be persuasive in most cases, it does not reach the con- to provide such "limited disclosure[s] to interested third- exemptions 5 u.s.c. § 552(b)(2), (b)(4), (b)(6), and (b)(7)(a) plaintiff-appellant, no. 09-35996 [11] the district court's ruling is affirmed as it regards rymer, circuit judge, concurring in part and dissenting in tion 4. are mandated to provide the information to them (ar 93), the fees for his various foia requests, watkins limited the the army, 611 f.2d 738, 742 (9th cir. 1979)) ("if the agency request, that he make an advance payment to cover the pro- requested documents. turned over to members' possession for further analysis. id. at vided two affidavits from knowledgeable agency employees, review in foia cases. lion raisins inc. v. u.s. dep't of seaport of discharge; (7) the country of origin of the shipment; and (8) the effects of disclosure[,] . . . [c]onclusory and generalized alle- of the statutory exemptions to justify the withholding of any [1] the trade secret exemption to foia states, "[t]his sec- of seizure. in addition to the above information, the notices address of the manufacturer; (6) the country of origin; (7) the society, needed to check against corruption and to hold the infringe upon their trademark that has been recorded with [the information act ("foia"), 5 u.s.c. § 552, requests for 19 "suspicion" of counterfeiting--it creates a rebuttable pre- district court to conclude that the disclosure of the informa- 361, 96 s.ct. 1592, 48 l.ed.2d 11 (1976) (internal quotation the terms "commercial or financial" are given their ordi- f.3d 959, 963 (9th cir. 2009). if so, " `then we review the dis- argued and submitted ray, 502 u.s. 164, 173 (1991)). consistent with the presump- within the "trade secrets" exemption to foia. ("[w]hether `information is already in the public domain,' schools v. fed. labor relations auth., 495 u.s. 641, 654 terfeit nature of the goods. as a result, importers of goods bon v. c.i.a., 911 f.2d 755 (d.c. cir. 1990) (seeking disclo- nary meanings. see pub. citizen health research group v. g.c. micro corp. v. def. logistics agency, 33 competitive harm analysis "is . . . limited to harm flowing thus, assuming a declarations demonstrate, an importer whose merchandise is name and address of the exporter; and (8) the name and (adopting the standard from national parks and conservation exemption without limiting the third-party's ability to further ports identified above. tion in favor of disclosure, we must construe the exemptions meaning of exemption 4. the exemption "prevents disclosure lation was promulgated in 1981. (gb 18). since that time, dential' for purposes of the exemption if disclosure of the 19 u.s.c. § 1526(f)(1)-(2). the fine for a second seizure may be up to proprietary information by competitors." id. although "the i respectfully dissent from part a.2 of the majority opinion, "twice the value that the merchandise would have had if it were genuine the competitive position of the person from whom the infor- of (1) commercial and financial information, (2) obtained duce "evidence revealing (1) actual competition [in the marks omitted). foia's purpose was thus to "ensure an from the public and establishes a "judicially enforceable pub- commercial importers provide the information revealed in the government revealed certain classified photos document- sure those notices of seizure that involve mistaken detain- zealously guard their supply chains. combine this information as we recently held in electronic frontier foundation v. ments on a bank merger application, see inner city press/community on agency and is therefore sometimes excluded from the notice 6014 watkins v. u.s. bureau customs & border 6017watkins v. u.s. bureau customs & border tive injury . . . ." g.c. micro corp., 33 f.3d at 1113 (citation 6031watkins v. u.s. bureau customs & border information on the status of the request. the ports of new- 1 6022 watkins v. u.s. bureau customs & border john doe corp., 493 u.s. 146, 152, 110 s.ct. 471, 107 were disclosed." consequently, the court granted the agen- foia "exemptions are to be interpreted narrowly." id. requested under foia are in the public domain, the [govern- tions, the importer's competitors, or the media in a way that if the district court had adequate factual basis for its deci- of interior, 523 f.3d 1128, 1135 (9th cir. 2008)). the burden ality and constitutes a waiver of exemption 4. foia accord- . . . ." id. § 1526(f)(3). 2. mental components may issue their own guidance ing ray, 502 u.s. at 173) (alteration added); see public citi- watkins, averring rather that because some of the notices mation was obtained." g.c. micro corp., 33 f.3d at 1112 and border protection, opinion affidavits that described documents withheld, the statutory samuel r. watkins, fall city, washington, proceeding pro se knowledgeable about the information sought and the affida- 2 trict court's conclusions of fact for clear error, while legal rul- shipment, incurring substantial fines, and subjecting itself to the district court next addressed the agency's redaction of 554; see davis v. u.s. dep't of justice, 968 f.2d 1276, 1279- defendant-appellees. from the affirmative use of proprietary information by com- the district court first addressed watkins's claim that the ernors of fed. reserve sys., 463 f.3d 239, 244 (2d cir. 2006). [t]he provisions established by this subpart shall learning about the highly-classified technical capabilities of zure is non-commercial just because it's likely -- perhaps information otherwise available for disclosure. see 5 u.s.c. require the [agency] to engage in a sophisticated economic cy's seizure and forfeiture of legitimate goods. as a result, we cious" and holds that the reviewing court "must consider trict court's decisions." milner v. u.s. dep't of the navy, 575 cir. 1983); inner city press/cmty. on the move v. bd. of gov- a. would still shield commercial information under exemption 4 trade operations. investigation of the colombian and sicilian mafia); fitzgib- cles during the detention period, the articles are forfeited, see and fluctuations of demand for merchandise, is well sup- specify a relevant market, watkins specified the relevant mar- notice does business in counterfeit goods"--does not address to invoke exemption 4 in the ninth circuit, the government hood of substantial injury. including the incorporation of cbp into dhs, cbp has con- ment has waived confidentiality under foia, see, e.g., further, cbp fails to explain how revealing an importer's the information in the notices of seizure provides question- for council members, but were neither distributed to nor requested documents." id. at 1291 (internal citation omitted). national security--concerns not relevant to the case at bar. (1) actual competition in the relevant market, and (2) a likeli- cbp failed to meet this burden. even assuming cbp can bureau of economic analysis (last visited july 20, 2010). this leaves little doubt that issue for any of the shipments in this case. protect is "(1) commercial and financial information, (2) "to summarize, commercial or financial matter is `confi- take, the situation is decidedly different. disclosing the notice final determinations that goods seized are counterfeit. instead, affirmed in part, and reversed in part. [4] in short, the district court's finding that the notices i concur in the majority opinion. see 354 f.3d at 1079. without guesswork. nate that information in ways that would compromise the pur- available." thus, in my view, the cbp did not waive exemp- part: 827, 35 l.ed.2d 119 (1973); see also u.s. dep't of state v. the district court to determine the appropriate relief. the par- mission from the trademark owner to import counterfeit arti- competitor could actually discover "patterns of importation circuit judges, and donald e. walter, district judge.* schedule and affirmatively determined that they would remain although the agency is statutorily required to disclose exemptions claimed, and the specific reasons for the agency's qua non of exemption 4." (alteration added)). indeed, the according to 6 c.f.r. § 5.1(a)(2) these fees apply to all as well as declarations from major trade organizations repre- viders of the information. ernment documents. epa v. mink, 410 u.s. 73, 80, 93 s.ct. v. f.d.a., 704 f.2d 1280, 1291 n.30 (d.c. cir. 1983) (quota- ings, including its decision that a particular exemption parties is not otherwise in the "public domain" or "freely ernment "waives" protection under exemption 4 when it applies to [all] the documents" requested by watkins, id. (cit- the goods at issue are counterfeit." this explanation ignores (1) "provide competitors, presumably other import- § 1526(e). when disclosure is made to a trademark owner, the cia station); afshar v. dep't of state, 702 f.2d 1125 (d.c. tion in the notices of seizure only to notify trademark owners information. ray, 502 u.s. 164, 173, 112 s.ct. 541, 116 l.ed.2d 526 petitive position . . . ." pub. citizen health research group filed may 6, 2011 even very likely -- that the merchandise seized is counterfeit. mary judgment in favor of the united states bureau of cus- id. § 133.21(b), § 133.22(b)-(c), and the importer incurs sub- tion may legitimately be kept from the public." lahr v. ntsb, adopt the "public domain" test for waiver embraced by the careful," but "the ultimate standard of review is a narrow tion from a declarant that is `very familiar' with the industry c.f.r. § 103.10(a)(1). on the other hand, dhs's fee regula- b. cbp foia fee calculations this information because it is important that it receive accurate address of the importer. see 19 c.f.r. § 133.21(c). the only cessing fees for his foia request. the ports required advance owners without any limits on further dissemination. the gov- portedly sensitive information about an offending importer's seized are not "unworthy of protection from competitive 6021watkins v. u.s. bureau customs & border 6020 watkins v. u.s. bureau customs & border breadth of his foia requests to cover a shorter time-period. tion in the notices of seizure poses a substantial likelihood of watkins's argument that cbp could not assert a claim of records to be furnished, or for monitoring a requestor's 6033watkins v. u.s. bureau customs & border "this court must first determine whether the district court there is actual competition in the relevant market and a likeli- believe the merchandise was counterfeit). as the agency's health research group, 704 f.2d at 1291-92 & n. 30 (quota- s.ct. 1468, 103 l.ed.2d 774 (1989). competitive harm without presenting affidavits from entities f.3d 1109, 1112 (9th cir. 1994). "confidential" material from a person or by the government, (3) that is privileged or provide no details about the specific notices requested by at issue." the court concluded that this exception was met at 1113. rather, the government need only show that there is solely on government affidavits so long as the affiants are c.f.r. § 133.21(c) notices of seizure of infringing merchan- demanded, as a prerequisite to responding to watkins's appeal from the united states district court san francisco and miami, as well as a second request to the because the government has not borne its burden of showing in the closest case, students against genocide, be found at 19 c.f.r. part 103.10. according to that section, pendent assessment of the government's claim." lions raisins makes samples of the counterfeit articles available to the according to watkins, he did not receive any response or of disclosure' means that an agency that invokes one of the ark/new york, los angeles/long beach, and boston in the minority of cases where a shipment is seized by mis- i. with already public information and importers' entire distribu- and (c). [2] information is "confidential" for the purposes of the requested documents or portions of documents bears the bur- turers and exporters implicated in a notice of seizure is, at as such, a notice of seizure represents much more than mere court was persuaded that notices of seizure do not always substantial harm to the competitive position of the person exemption claim). id. by contrast, an aggrieved trademark ment] is unable to make any claim to confidentiality--a sine owner (who receives a notice of seizure) can freely dissemi- apply to all department components that are trans- information in the notice. he can freely disseminate the although foia provides nine enumerated exemptions for receiving the notices on behalf of the trademark holder.


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