Case Detail

FOIA Project Annotation: After reviewing the legislative history of 1996 amendments to the Tariff Act, a federal court in New York has ruled that U.S. Customs and Border Protection properly withheld aircraft cargo manifest data from Panjiva and ImportGenius, two companies providing services to the global trade community because aircraft cargo manifests are not subject to the public disclosure provisions contained in the Tariff Act. Judge Paul Oetken explained that the Tariff Act's provisions requiring disclosure of cargo manifests applied to vessels, which has always been consistently defined to encompass anything "capable of being used, as a means of transportation in water" and that the term expressly "does not include aircraft." However, in July 1996, Congress enacted the Anticounterfeiting Consumer Protection Act, which amended the public disclosure provision in the Tariff Act to include aircraft cargo manifests as well as ship manifests. But in October 1996, Congress amended the Tariff Act once again, this time removing the phrase "such manifest" and inserting "a vessel manifest." The Office of Law Revision Counsel of the House of Representatives attempted to amend the provision in the U.S. Code that corresponds with § 431 of the Tariff Act to be consistent with both the July and October 1996 acts, which is the version that still exists. That language reads in part that "except as provided in subparagraph (2), the following information, when contained in a vessel or aircraft manifest, shall be available for public disclosure" and listed eight data elements. Panjiva insisted that the public disclosure provisions continued to apply to aircraft as well as ships, while CBP argued that the October 1996 amendment removed aircraft manifests from the public disclosure provision. Oetken pointed out that "the Court cannot combine the ACPA and the Correction Act [the October 1996 amendment] in a straightforward manner to yield a single, definitive statutory text that fully incorporates both amendments." As a result, Oetken agreed with the agency that Congress was working with a copy of the text of § 431 that pre-dated the ACPA amendment. He observed that "on its face, the Corrections Act was purporting to amend language in § 431(c)(1) as it existed prior to the ACPA. Given that the ACPA was enacted only three months prior, and different committees of the Senate originated the conflicting amendments, a mistake of this nature is easy to comprehend. And if this outdated-text scenario is indeed what occurred, it would mean that when adopting the Corrections Act amendment, Congress would have understood the new text of § 431(a)(1) to refer to vessel manifests only. And contrary to Panjiva's assertion, Congress's failure to expressly strike the phrase 'aircraft manifest' under these circumstances would provide an indication of a deliberate effort to keep the words in the statute. Looking at the plain meaning of the text in conjunction with the statutory history of § 431(c)(1), therefore, the Court is inclined to favor the Government's understanding of the statute." Rejecting Panjiva's further statutory construction arguments, Oetken noted that "if the Corrections Act is to be construed as having in any way substantively amended § 431(c)(1), the only plausible understanding of its effect is that it exempted airplane cargo manifests from public disclosure." Finally, Oetken dismissed Panjiva's argument that CBP had a policy or practice of violating FOIA by failing to disclose aircraft cargo manifests.
Issues: Litigation - Jurisdiction - Failure to State a Claim

Date Filed	Doc #	Docket Text
2017-10-26	1	COMPLAINT against UNITED STATES CUSTOMS AND BORDER PROTECTIO, United States Department of Treasury. (Filing Fee $ 400.00, Receipt Number 0208-14291245)Document filed by PANJIVA, INC, TRADE DATA SERVICES, INC..(Bahr, David) (Entered: 10/26/2017)
2017-10-26	2	MOTION for David A. Bahr to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14291314. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by PANJIVA, INC, TRADE DATA SERVICES, INC.. (Attachments: # 1 Certificate of Good Standing, # 2 Affidavit Declaration of David Bahr in support of PHV motion, # 3 Text of Proposed Order Proposed Order)(Bahr, David) (Entered: 10/26/2017)
2017-10-26	3	FILING ERROR - DEFICIENT SUMMONS REQUEST - PDF ERROR REQUEST FOR ISSUANCE OF SUMMONS as to UNITED STATES CUSTOMS AND BORDER PROTECTIO, re: 1 Complaint. Document filed by PANJIVA, INC, TRADE DATA SERVICES, INC.. (Bahr, David) Modified on 10/27/2017 (kl). (Entered: 10/26/2017)
2017-10-26	4	FILING ERROR - DEFICIENT SUMMONS REQUEST - PDF ERROR REQUEST FOR ISSUANCE OF SUMMONS as to UNITED STATES DEPARTMENT OF TREASURY, re: 1 Complaint. Document filed by PANJIVA, INC, TRADE DATA SERVICES, INC.. (Bahr, David) Modified on 10/27/2017 (kl). (Entered: 10/26/2017)
2017-10-26	5	CIVIL COVER SHEET filed. (Bahr, David) (Entered: 10/26/2017)
2017-10-26	6	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent Battery Ventures VIII, L. L.P. for PANJIVA, INC. Document filed by PANJIVA, INC.(Bahr, David) (Entered: 10/26/2017)
2017-10-26	7	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by TRADE DATA SERVICES, INC..(Bahr, David) (Entered: 10/26/2017)
2017-10-26		>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 2 MOTION for David A. Bahr to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14291314. Motion and supporting papers to be reviewed by Clerk's Office staff. . The document has been reviewed and there are no deficiencies. (bcu) (Entered: 10/26/2017)
2017-10-26	8	MOTION for Sharon Yamit Yamen to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14292849. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by TRADE DATA SERVICES, INC.. (Attachments: # 1 Affidavit Declaration, # 2 Exhibit NY Cert of Good Standing, # 3 Exhibit Utah Cert of Good Standing, # 4 Text of Proposed Order)(Yamen, Sharon) (Entered: 10/26/2017)
2017-10-27		>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. 8 MOTION for Sharon Yamit Yamen to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number 0208-14292849. Motion and supporting papers to be reviewed by Clerk's Office staff. . The document has been reviewed and there are no deficiencies. (wb) (Entered: 10/27/2017)
2017-10-27		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge J. Paul Oetken. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (kl) (Entered: 10/27/2017)
2017-10-27		Magistrate Judge Henry B. Pitman is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (kl) (Entered: 10/27/2017)
2017-10-27		Case Designated ECF. (kl) (Entered: 10/27/2017)
2017-10-27		***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney David Alan Bahr to RE-FILE Document No. 4 Request for Issuance of Summons, 3 Request for Issuance of Summons. The filing is deficient for the following reason(s): PLEASE FILL OUT THE ATTORNEY ADDRESS/INFORMATION FIELD ON THE SUMMONS REQUEST. ALSO, THE PARTY NAMES MUST MATCH EXACLTY AS THEY APPEAR ON THE INITIAL PLEADING. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (kl) (Entered: 10/27/2017)
2017-10-27	9	FILING ERROR - DEFICIENT SUMMONS REQUEST - PARTIALLY BLANK FORM ERROR REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Customs and Border Protection, re: 1 Complaint. Document filed by Panjiva, Inc., Trade Data Services, Inc.. (Bahr, David) Modified on 10/30/2017 (kl). (Entered: 10/27/2017)
2017-10-27	10	REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Department of Treasury, re: 1 Complaint. Document filed by Panjiva, Inc., Trade Data Services, Inc.. (Bahr, David) (Entered: 10/27/2017)
2017-10-30	11	ELECTRONIC SUMMONS ISSUED as to United States Department of Treasury. (kl) (Entered: 10/30/2017)
2017-10-30		***NOTICE TO ATTORNEY REGARDING DEFICIENT REQUEST FOR ISSUANCE OF SUMMONS. Notice to Attorney David Alan Bahr to RE-FILE Document No. 9 Request for Issuance of Summons. The filing is deficient for the following reason(s): PLEASE FILL OUT THE ATTORNEY ADDRESS/INFORMATION FIELD ON THE SUMMONS REQUEST. Re-file the document using the event type Request for Issuance of Summons found under the event list Service of Process - select the correct filer/filers - and attach the correct summons form PDF. (kl) (Entered: 10/30/2017)
2017-10-30	12	REQUEST FOR ISSUANCE OF SUMMONS as to U.S. Customs and Border Protection, re: 1 Complaint. Document filed by Panjiva, Inc., Trade Data Services, Inc.. (Bahr, David) (Entered: 10/30/2017)
2017-10-30	13	ELECTRONIC SUMMONS ISSUED as to United States Customs and Border Protection. (sj) (Entered: 10/31/2017)
2017-10-31	14	ELECTRONIC SUMMONS ISSUED as to United States Customs and Border Protection. (kl) (Entered: 10/31/2017)
2017-11-09	15	ORDER granting 2 Motion to Appear Pro Hac Vice. GRANTED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 11/09/2017)
2017-11-09	16	ORDER granting 8 Motion to Appear Pro Hac Vice. GRANTED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 11/09/2017)
2017-12-07	17	AFFIDAVIT OF SERVICE (FOIA CASE) of Summons and Complaint served. United States Customs and Border Protection served on 11/13/2017, answer due 12/13/2017. Service was made by mail. Document filed by Panjiva, Inc.; Trade Data Services, Inc.. (Bahr, David) (Entered: 12/07/2017)
2017-12-07	18	AFFIDAVIT OF SERVICE (FOIA CASE) of Summons and Complaint served. United States Department of Treasury served on 11/13/2017, answer due 12/13/2017. Service was made by mail. Document filed by Panjiva, Inc.; Trade Data Services, Inc.. (Bahr, David) (Entered: 12/07/2017)
2017-12-11	19	LETTER MOTION for Extension of Time to File Answer addressed to Judge J. Paul Oetken from Stephen Cha-Kim dated 12/11/2017. Document filed by United States Customs and Border Protection, United States Department of Treasury.(Cha-Kim, Stephen) (Entered: 12/11/2017)
2017-12-12	20	ORDER granting 19 Letter Motion for Extension of Time to Answer. GRANTED. DEFENDANTS SHALL ANSWER OR OTHERWISE RESPOND TO THE COMPLAINT ON OR BEFORE JANUARY 12, 2018. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 12/12/2017)
2018-01-12	21	MOTION to Dismiss the Complaint in Part . Document filed by United States Customs and Border Protection, United States Department of Treasury.(Cha-Kim, Stephen) (Entered: 01/12/2018)
2018-01-12	22	MEMORANDUM OF LAW in Support re: 21 MOTION to Dismiss the Complaint in Part . . Document filed by United States Customs and Border Protection, United States Department of Treasury. (Cha-Kim, Stephen) (Entered: 01/12/2018)
2018-01-12	23	ANSWER to 1 Complaint. Document filed by United States Customs and Border Protection.(Cha-Kim, Stephen) (Entered: 01/12/2018)
2018-01-16	24	ORDER: Counsel for all parties are directed to appear for an initial pretrial conference with the Court on January 31, 2018, at 11:00 a.m. The conference will be held in Courtroom 706 of the Thurgood Marshall United States Court House, 40 Foley Square, New York, New York. Counsel who appear at the pretrial conference must be authorized to negotiate terms of settlement. And as set forth herein. SO ORDERED. Initial Conference set for 1/31/2018 at 11:00 AM in Courtroom 706, 40 Centre Street, New York, NY 10007 before Judge J. Paul Oetken. (Signed by Judge J. Paul Oetken on 1/16/2018) (ama) (Entered: 01/16/2018)
2018-01-23	25	CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 22 Memorandum of Law in Support of Motion, 21 MOTION to Dismiss the Complaint in Part . addressed to Judge J. Paul Oetken from David Bahr dated January 23, 2018. Document filed by Panjiva, Inc., Trade Data Services, Inc..(Bahr, David) (Entered: 01/23/2018)
2018-01-24		***DELETED DOCUMENT. Deleted document number 26 Order. As per chambers, the document was incorrectly filed in this case. (tn) (Entered: 01/24/2018)
2018-01-24	26	ORDER granting 25 Letter Motion for Extension of Time to File Response/Reply. GRANTED. PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS SHALL BE FILED BY MARCH 5, 2018. DEFENDANT'S REPLY, IF ANY, SHALL BE FILED BY MARCH 19, 2018. PLAINTIFF'S COUNSEL SHALL BE PERMITTED TO PARTICIPATE IN THE INITIAL PRETRIAL CONFERENCE ON JANUARY 31, 2018, BY TELEPHONE. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 01/24/2018)
2018-01-26		NOTICE: THE INITIAL PRETRIAL CONFERENCE SCHEDULED FOR JANUARY 31, 2018, WILL BE CONDUCTED BY TELEPHONE. THE PARTIES ARE DIRECTED TO JOINTLY CALL CHAMBERS AT 212-805-0266 ON JANUARY 31, 2018, AT 11:00 A.M. (bh) (Entered: 01/26/2018)
2018-01-26	27	LETTER addressed to Judge J. Paul Oetken from Stephen Cha-Kim dated 1/26/2018 re: Initial Conference. Document filed by United States Customs and Border Protection, United States Department of Treasury. (Attachments: # 1 Text of Proposed Order Case Management Plan)(Cha-Kim, Stephen) (Entered: 01/26/2018)
2018-01-31		Minute Entry for proceedings held before Judge J. Paul Oetken: Telephonic Initial Pretrial Conference held on 1/31/2018. (bh) (Entered: 01/31/2018)
2018-02-25	28	CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 22 Memorandum of Law in Support of Motion, 21 MOTION to Dismiss the Complaint in Part . addressed to Judge J. Paul Oetken from David Bahr dated February 25, 2018. Document filed by Panjiva, Inc., Trade Data Services, Inc..(Bahr, David) (Entered: 02/25/2018)
2018-02-26	29	ORDER granting 28 Letter Motion for Extension of Time to File Response/Reply. GRANTED. PLAINTIFFS SHALL FILE THEIR OPPOSITION TO DEFENDANTS' MOTION TO DISMISS (DKT. NO. 21) ON OR BEFORE MARCH 19, 2018. DEFENDANTS' REPLY SHALL BE DUE ON OR BEFORE APRIL 2, 2018. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 02/26/2018)
2018-03-14	30	FILING ERROR - CORPORATE PARENT/OTHER AFFILIATE NOT ADDED - AMENDED RULE 7.1 CORPORATE DISCLOSURE STATEMENT.. Document filed by Panjiva, Inc., Trade Data Services, Inc..(Bahr, David) Modified on 3/15/2018 (lb). (Entered: 03/14/2018)
2018-03-15		***NOTICE TO ATTORNEY TO RE-FILE DOCUMENT - DEFICIENT DOCKET ENTRY ERROR. Notice to Attorney David Alan Bahr to RE-FILE Document 30 Rule 7.1 Corporate Disclosure. ERROR(S): Corporate Parents were not added. Please re-file this document and when prompted: Are there any corporate parents or other affiliates?, select the YES radio button and enter the Corporate Parent(s) or Affiliate(s). YOU MUST SELECT THE SEARCH BUTTON. Select the correct name or create a new corporate parent. Add the Corporate Parent(s) or Affiliate(s) one party name at a time. Statement. (lb) (Entered: 03/15/2018)
2018-03-15	31	AMENDED RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Corporate Parent S&P Global Market Intelligence Inc. for Panjiva, Inc.. Document filed by Panjiva, Inc..(Bahr, David) (Entered: 03/15/2018)
2018-03-16	32	CONSENT LETTER MOTION for Extension of Time to File Response/Reply as to 22 Memorandum of Law in Support of Motion, 21 MOTION to Dismiss the Complaint in Part . addressed to Judge J. Paul Oetken from David Bahr dated 03/16/18. Document filed by Panjiva, Inc., Trade Data Services, Inc..(Bahr, David) (Entered: 03/16/2018)
2018-03-19	33	ORDER granting 32 Letter Motion for Extension of Time to File Response/Reply. GRANTED. PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS SHALL BE DUE ON OR BEFORE MARCH 21, 2018. DEFENDANTS' REPLY SHALL BE DUE ON OR BEFORE APRIL 4, 2018. SO ORDERED. (HEREBY ORDERED by Judge J. Paul Oetken)(Text Only Order) (Oetken, J.) (Entered: 03/19/2018)
2018-03-21	34	MEMORANDUM OF LAW in Opposition re: 21 MOTION to Dismiss the Complaint in Part . . Document filed by Panjiva, Inc., Trade Data Services, Inc.. (Bahr, David) (Entered: 03/21/2018)
2018-04-03	35	REPLY MEMORANDUM OF LAW in Support re: 21 MOTION to Dismiss the Complaint in Part . . Document filed by United States Customs and Border Protection, United States Department of Treasury. (Cha-Kim, Stephen) (Entered: 04/03/2018)
2018-09-24	36	OPINION AND ORDER: re: 21 MOTION to Dismiss the Complaint in Part filed by United States Department of Treasury, United States Customs and Border Protection. For the foregoing reasons, Defendants' motion to dismiss is GRANTED. Counts VI, VII, and VIII of the Complaint are hereby DISMISSED. Count V is DISMISSED IN PART. The Clerk of Court is directed to close the motion at Docket Number 21. SO ORDERED. (Signed by Judge J. Paul Oetken on 9/24/2018) (ama) (Entered: 09/24/2018)
2018-10-02	37	ORDER: On September 24, 2018, the Court granted Defendants' motion to dismiss the counts in the Complaint that arose under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., and the Tariff Act of 1930, 19 U.S.C. § 1431(c). (Dkt. No. 36.) The remaining claims in this case arise under the Freedom of Information Act, 5 U.S.C. § 552 et seq. ("FOIA"). The parties are hereby ORDERED to submit a joint letter, no later than two weeks from the date of this order and not to exceed two pages, indicating whether there is any need for discovery or a status conference in this case. If there is no such need, the parties should include in their letter a proposed briefing schedule for any motions for summary judgment. SO ORDERED. (Signed by Judge J. Paul Oetken on 10/1/2018) (rro) (Entered: 10/02/2018)
2018-10-14	38	NOTICE of Parties joint letter addressing future proceedings in this case. re: 37 Order,,,. Document filed by Panjiva, Inc., Trade Data Services, Inc.. (Bahr, David) (Entered: 10/14/2018)
2018-11-01	39	FILING ERROR - DEFICIENT DOCKET ENTRY - SIGNATURE ERROR - STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action is voluntarily dismissed, with prejudice against the defendant(s) Panjiva, Inc., Trade Data Services, Inc., United States Customs and Border Protection, United States Department of Treasury and without costs pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed by Panjiva, Inc., Trade Data Services, Inc.. Proposed document to be reviewed and processed by Clerk's Office staff (No action required by chambers). .(Bahr, David) Modified on 11/1/2018 (km). (Entered: 11/01/2018)
2018-11-01		***NOTICE TO ATTORNEY REGARDING DEFICIENT VOLUNTARY DISMISSAL. Notice to Attorney David Bahr. RE-FILE Document No. 39 Stipulation of Voluntary Dismissal. The filing is deficient for the following reason(s): The stipulation needs to have handwritten signatures of the attorneys. Re-file the document using the event type Stipulation of Voluntary Dismissal found under the event list Other Documents - select the correct filer/filers - select the correct party/parties the voluntary dismissal is against - and attach the correct signed (scanned signature image) PDF. (km) (Entered: 11/01/2018)
2018-11-13	40	STIPULATION OF VOLUNTARY DISMISSAL It is hereby stipulated and agreed by and between the parties and/or their respective counsel(s) that the above-captioned action is voluntarily dismissed, with prejudice against the defendant(s) United States Customs and Border Protection, United States Department of Treasury and without costs pursuant to Rule 41(a)(1)(A)(ii) of the Federal Rules of Civil Procedure. Document filed by Panjiva, Inc., Trade Data Services, Inc.. Proposed document to be reviewed and processed by Clerk's Office staff (No action required by chambers). .(Bahr, David) (Entered: 11/13/2018)
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