Deckers Corporation v. United States

Slip Op. 19 - 18
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - -x
DECKERS CORPORATION, 	:
Plaintiff, :
Consolidated
v. 	: 	Court No. 02-00730
THE UNITED STATES, 	:
Defendant. :
- - - - - - - - - - - - - - - - - - -x
Memorandum & Order
[Upon classification of additional Teva® footwear,
summary judgment for the defendant.]
Decided: February 4, 2019
Patrick 	D. 	Gill, 	Rode 	& 	Qualey, 	New 	York, 	NY, 	for 	the
plaintiff.
Marcella Powell, Trial Attorney, Commercial Litigation Branch,
Civil 	Division, 	U.S. 	Department 	of 	Justice, 	of 	New 	York, 	NY;
Benjamin 	C. 	Mizer, 	Principal 	Deputy 	Assistant 	Attorney 	General,
Amy M. Rubin, Assistant Director, and Michael Heydrich, 	Office of
Assistant 	Chief 	Counsel, 	International 	Trade 	Litigation, 	U.S.
Customs and Border Protection, of counsel, for the defendant.
AQUILINO, 	Senior 	Judge: 	The 	above-named, 	determined
plaintiff 	seeks 	yet 	again 	in 	this 	duly-certified 	test 	case 	to
rectify errors it believes have occurred in prior decisions of this
court and its court of appeals all sub nom. Deckers Corp. v. United
States, 29 CIT 1481, 414 F.Supp.2d 1252 (2005); 31 CIT 1367, aff’d,
532 F.3d 1312 (Fed.Cir. 2008)(“Deckers I”); and 37 CIT ____ (2013),
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 1 of 18

Consolidated
Court No. 02-00730
Page 2
aff’d, 752 F.3d 949 (Fed.Cir. 2014), reh’g en banc denied (July 9,
2014)(“Deckers II”). 	The crux of plaintiff’s continuing complaint
is U.S. Customs Service classification of its Teva® sandals under
HTSUS subheading 6404.19.35 (2001), to wit
6404 	Footwear 	with 	outer 	soles 	of 	rubber, 	plastics,
leather 	or 	composition 	leather 	and 	uppers 	of
textile materials:
Footwear with outer soles of rubber or plastics:
6404.19 	Other:
Footwear with open toes or open heels;...
6404.19.35 	Other:........
in lieu of its preferred subheading
6404.11 	Sports 	footwear; 	tennis 	shoes, 	basketball 	shoes,
gym shoes, training shoes and the like[.]
In depicting an image of plaintiff’s sandals at issue in
slip 	opinion 	05-159, 	29 	CIT 	at 	1486, 	414 	F.Supp.2d 	at 	1256, 	this
court 	came 	to 	conclude 	that 	the 	defendant’s 	motion 	for 	summary
judgment could not be granted, whereupon a full and fair trial of
the 	matter 	ensued 	in 	a 	courthouse 	of 	the 	U.S. 	District 	Court 	for
the Middle District of California. 	While plaintiff’s presentment
there was most impressive as a matter of fact, it did not prevail
as a matter of law, as reported in Deckers I, supra.
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 2 of 18

Consolidated
Court No. 02-00730
Page 3
The matter of classification of other Teva® styles having
been suspended under that test case, the plaintiff removed a number
from the CIT suspension calendar to constitute a second test case,
which became Deckers II, albeit with the same litigated result as
the initial action.
I
Not content with those decisions, and given its right per
United States v. Stone & Downer Co., 274 U.S. 225, 235-26 (1927),
still other docketed Teva® styles now constitute the foundation of
this 	third 	test 	case 	sub 	nom. 	Pretty 	Rugged, 	Trail 	Raptor, 	Road
Raptor, Vector, Terra Fi, Universal Approach, and Universal Guide.
Whatever 	their 	names 	and 	stylistic 	nuances 1 , 	the
defendant 	has 	reacted 	with 	another 	motion 	for 	summary 	judgment,
which plaintiff’s persistent counsel in a submission dated January
17, 2019 demands “must be resolved before, and if, this case goes
to trial.” 	Jurisdiction continues pursuant to 28 U.S.C. §§ 1581(a)
and 2631(a).
A
The 	parties’ 	papers 	filed 	herein 	indicate 	certain
disagreement over the extent which the articles’ toes and/or heels
1 	Plaintiff’s 	position 	is 	that 	its 	two Raptors 	are
“running 	shoes” 	and 	that 	the 	other 	named 	styles 	are 	“training
shoes”. See complaint, paras. 13 and 14.
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 3 of 18

Consolidated
Court No. 02-00730
Page 4
are 	“open” 	and 	also 	disagreement 	over 	the 	extent 	to 	which 	toes
and/or 	heels 	and/or 	feet 	are 	“enclosed” 	and 	“secured”, 	but 	the
salient 	points 	of 	agreement 	suffice 	for 	purposes 	of 	summary
judgment.
The plaintiff commenced this action to press its position
of clear error in Deckers I and Deckers II in the hope of en banc
review 	by 	the 	Federal 	Circuit. 	It 	argues 	such 	error 	lies 	in 	that
court’s ejusdem generis analysis of the subheading 6404.11, supra,
in Deckers I and that the error has been perpetuated in Deckers II.
The plaintiff further argues that a trial is necessary because it
“seeks to present evidence that will establish clear error in both
the factual and legal conclusion in Deckers I and Deckers II” and
that, “[i]f the motion for summary judgment is now granted, Deckers
would 	be 	denied 	the 	opportunity 	to 	present 	its 	evidence 	to
establish clear error in the prior decision that no footwear can be
classified in tariff subheading 6404.11 unless that footwear has a
fully 	enclosed 	upper”. 	Summarizing, 	plaintiff’s 	opposition 	to
defendant’s 	motion 	for 	summary 	judgment 	is 	that 	the 	motion 	is
premature because there are outstanding motions to compel discovery
filed by both parties.
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 4 of 18

Consolidated
Court No. 02-00730
Page 5
In particular, the plaintiff would compel the defendant
to 	expand 	on 	the 	statement 	of 	the 	government’s 	expert 	witness 	in
Deckers 	II 	that 	“some 	training 	shoes 	have 	openings 	in 	the 	uppers
and are used for training shoes” and to identify evidence that the
common and commercial meaning of “training shoes” requires in all
cases that training shoes must have enclosed uppers. 	Plaintiff’s
posture does not, however, excuse it with respect to its own lack
of response to defendant’s motion to compel, pursuant to which the
latter seeks elaboration of “all facts” that support allegations in
the 	complaint 	that 	the 	imported 	merchandise 	is 	athletic 	footwear
(running 	shoes 	and 	training 	shoes), 	that 	they 	are 	used 	as 	such,
that 	it 	is 	“understood” 	in 	the 	footwear 	trade 	and 	by 	users 	of
training shoes that certain types can and do have openings in their
uppers, and that open uppers on training shoes are no bar to their
use as such, and also seeking discovery of any plaintiff witness.
By 	rule, 	a 	party 	opposing 	summary 	judgment 	because 	“it
cannot present facts essential to justify its opposition” can ask
the court to defer consideration of or to deny the motion while it
conducts 	additional 	discovery. 	USCIT 	Rule 	56(d); 	Baron 	Services,
Inc. 	v. 	Media 	Weather 	Innovations 	LLC, 	717 	F.3d 	907 	(Fed.Cir.
2013). 	The 	party 	requesting 	relief 	pursuant 	to 	that 	rule 	must
“state with some precision the materials he hope[s] to obtain with
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 5 of 18

Consolidated
Court No. 02-00730
Page 6
further 	discovery, 	and 	exactly 	how 	he 	expect[s] 	those 	materials
would help him in opposing summary judgment.” 	Simmons Oil Corp. v.
Tesoro 	Petroleum 	Corp., 	86 	F.3d 	1138, 	1144 	(Fed.Cir. 	1996)
(addressing 	parallel 	Rule 	56(d) 	of 	the 	Federal 	Rules 	of 	Civil
Procedure and quoting Krim v. BancTexas Group, Inc., 989 F.2d 1435,
1143 (5th Cir. 1993)). 	Failure to comply with that rule can result
in 	denial 	of 	the 	request 	and 	an 	adverse 	decision 	on 	summary
judgment. See, e.g., Kallal v. CIBA Vision Corp., 779 F.3d 443, 447
(7th Cir. 2015).
In the significant length of time purposely afforded this
third test case to lie fallow following submission of defendant’s
reply 	brief 	in 	support 	of 	its 	motion 	for 	summary 	judgment, 	the
plaintiff 	has 	not 	submitted 	anything 	to 	supplement 	its 	position,
and 	it 	has 	not 	identified 	any 	fact 	witness 	in 	support 	of 	its
“additional” averments in its opposition to defendant’s motion for
summary 	judgment. 	Plaintiff’s 	sole 	witness 	supporting 	that
opposition 	is 	its 	purported 	expert, 	Dr. 	Geoffrey 	Gray. 2 	But, 	he
2 	The 	defendant 	notes 	that 	it 	would 	move 	to preclude Dr.
Gray under Federal Rule of Evidence 702 and Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), on the ground that the
testing 	he 	performed 	was 	not 	based 	on 	reliable 	scientific
principles 	and 	methods 	and 	therefore 	its 	results 	did 	not 	have
indicia of accuracy:
(continued...)
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 6 of 18

Consolidated
Court No. 02-00730
Page 7
cannot shed much light on the meaning of subheading 6404.11, supra,
as he only tested one style of sandal at issue using a proprietary
protocol 	or 	testing 	method 	that 	has 	never 	been 	subject 	to 	peer
review. 	See Def’s Ex. 8 (“Gray Dep.”) at 27:16-28:9. 	Dr. Gray did
not 	(and 	could 	not) 	attribute 	his 	test 	results 	to 	the 	remaining
styles at issue. 	“Conclusory expert assertions cannot raise issues
of material fact on summary judgment.” 	Strick v. Dreamworks, LLC,
516 F.3d 993, 1001 (Fed.Cir. 2008). 	Moreover, Dr. Gray appears to
have 	cast 	doubt 	on 	the 	reliability 	of 	those 	test 	results 	when 	he
acknowledged that one test of one sample did not yield results that
were 	adequately 	accurate 	for 	inclusion 	in 	his 	database 	as
representative of a training shoe. 	See Def’s Ex. 8 at 40:14-41:21.
2 	(...continued)
We 	also 	intend 	to 	move 	to 	preclude 	Dr. 	Gray 	on 	the
grounds that his opinion is irrelevant and inaccurate as
applied 	to 	the 	sandals 	at 	issue. 	For 	example, 	in 	his
report, Dr. Gray sets forth the criteria that he believes
are inherent in training shoes such as stability in the
sagittal 	plane 	(fore-aft 	movement). 	See 	Plaintiff’s
Expert Report of Dr. Geoffrey Gray ¶10. The evidence in
the Deckers I trial, however, established that there was
insufficient restriction on the fore-aft movement of the
foot. 	During 	the 	trial, 	Deckers’ 	counsel 	asked 	Dr.
Joseph Hamill, defendant’s fact witness, to don a Teva®
sandal 	and 	kick 	a 	wall. 	When 	Dr. 	Hamill’s 	foot 	struck
the 	wall, 	it 	slid 	off 	of 	the 	footbed 	of 	the 	sandal
causing injury to his toe.
Def’s Reply at 9 n.4.
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 7 of 18

Consolidated
Court No. 02-00730
Page 8
With regard to the timing of defendant’s summary judgment
motion, 	the 	plaintiff 	contends 	that 	the 	matters 	covered 	by 	its
motion to compel are critical to the way in which it would present
its 	case. 	The 	plaintiff, 	however, 	has 	not 	made 	any 	effort 	to
comply 	with 	USCIT 	Rule 	56(d), 	nor 	has 	it 	filed 	a 	motion 	seeking
relief 	under 	that 	rule. 	Additionally, 	it 	has 	not 	specified 	the
factual information it hopes to obtain through its motion to compel
and how that information would raise a genuine issue of fact that
would 	justify 	a 	trial. 	Plaintiff’s 	vague 	assertion 	that 	it 	needs
additional discovery is insufficient to establish that this action
is not now ripe for summary judgment.
As similarly intimated in a case concerning “Ugg Boots”,
Deckers Corp. v. United States, 714 F.3d 1363 (Fed.Cir. 2013), the
plaintiff 	herein 	has 	been 	afforded 	“ample 	opportunity”, 	via
opposition 	to 	defendant’s 	summary 	judgment 	motion, 	to 	submit
evidence with respect to interpretation of the term “and the like”
in 	subheading 	6404.11, 	HTSUS, 	and 	the 	operative 	language 	of 	that
provision 	in 	its 	opposition 	to 	the 	defendant’s 	summary 	judgment
motion. 	The 	plaintiff 	in 	that 	case 	raised 	the 	same 	“need 	for
trial” 	argument 	before 	the 	Federal 	Circuit, 	which 	was 	rejected.
That 	is, 	the 	plaintiff 	therein 	asserted 	that 	the 	trial 	court 	had
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 8 of 18

Consolidated
Court No. 02-00730
Page 9
erred in classifying the imported boots as “footwear of the slip-on
type” under subheading 6404.19.35, HTSUS. 	It argued, among other
things, that that court had improperly decided the issue on summary
judgment. 	According to that plaintiff, a trial was necessary, as
it 	would 	have 	permitted 	testimony 	from 	industry 	witnesses. 	The
court of appeals, however, affirmed the trial court’s decision in
all respects.
In doing so, the Federal Circuit reasoned that “[t]here
were 	no 	genuine 	issues 	of 	material 	fact 	regarding 	the 	salient
characteristics” 	of 	the 	subject 	boots. 	714 	F.3d 	at 	1371. 	The
panel 	then 	held 	that 	the 	“resolution 	of 	the 	parties’ 	dispute
centered on the meaning of the term ‘footwear of the slip-on type,’
a question of statutory interpretation.” 	Id., citing Bausch & Lomb
v. United States, 148 F.3d 1363, 1365 (Fed.Cir. 1998). According to
the 	appellate 	decision, 	the 	plaintiff 	“had 	ample 	opportunity 	to
submit 	evidence 	regarding 	the 	common 	understanding 	of 	the 	term
‘footwear of the slip-on type’ when it submitted its opposition to
the government’s motion for summary judgment.” 	Id. at 1372. 	The
court 	noted 	that 	the 	plaintiff 	did 	not 	identify 	any 	purported
industry 	witnesses 	or 	offer 	any 	affidavits 	or 	declarations 	from
such witnesses when it was before the trial court. 	Id. 	“Deckers’
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 9 of 18

Consolidated
Court No. 02-00730
Page 10
unsupported 	assertion 	that 	unnamed 	industry 	witnesses 	would 	have
testified that the footwear industry does not consider a boot to be
a 	‘slip-on’ 	is 	too 	speculative 	to 	raise 	any 	genuine 	issue 	of
material fact.” 	Id.
In a further effort to persuade that trial is necessary
herein, the plaintiff argues that if it is not permitted to present
evidence at trial, “the result would be to effectively nullify the
Supreme 	Court’s 	holding 	in 	Stone 	& 	Downer.” 	The 	plaintiff 	reads
too 	much 	into 	that 	decision; 	it 	established 	the 	principle 	that
there 	is 	no 	bar 	to 	relitigation 	over 	the 	same 	merchandise 	by 	the
same parties, but it did not address whether relitgation is to be
disposed 	of 	by 	summary 	judgment 	or 	by 	trial. 	The 	plaintiff 	is
permitted to relitigate the classification of its sandals in this
court, 	but 	in 	order 	to 	obtain 	trial 	it 	must 	come 	forward 	with 	a
genuine issue of material fact.
Towards 	that 	end, 	the 	plaintiff 	asserts 	that 	trial 	is
necessary 	because 	in 	Deckers 	II 	the 	defendant’s 	expert 	witness
“declared under penalty of perjury” that “some training shoes have
openings in the uppers and are used as training shoes”. 	“Openings
in the uppers”, however, do not, necessarily, mean “open uppers”,
and plaintiff’s attempt to portray Dr. Joseph Hamill’s statement as
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 10 of 18

Consolidated
Court No. 02-00730
Page 11
inconsistent 	with 	Deckers 	I 	and 	Deckers 	II 	is 	therefore
unpersuasive. 	See, 	e.g., 	Def’s 	answer, 	para. 	27 	(Dr. 	Hamill’s
complete statement):
Some training shoes have openings in the uppers and are
used as training shoes if they have the characteristics
appropriate for a training shoe. The Teva Sport Sandals
do not qualify as such as previously described.
In 	other 	words, 	as 	the 	defendant 	contends, 	shoes 	that 	have
“openings in the uppers” (e.g., small holes for breathability) can
be 	used 	as 	training 	shoes 	provided 	that 	they 	have 	the
characteristics 	of 	such 	shoes, 	including 	an 	enclosed 	upper, 	and
this 	court 	concurs 	that 	Dr. 	Hamill’s 	statement 	cannot 	be
interpreted as inconsistent with Deckers I and Deckers II.
The appropriate opportunity for the plaintiff to present
its 	interpretation 	of 	the 	HTSUS 	provision 	at 	issue 	is 	in
opposition 	to 	defendant’s 	motion 	for 	summary 	judgment, 	not 	at
another 	trial. 	Plaintiff’s 	motion 	to 	compel 	discovery 	can
therefore be, and it hereby is, denied, and defendant’s motion to
compel discovery is therefore hereby denied as moot.
B
In 	affirming 	the 	judgment 	in 	Deckers 	II, 	the 	Federal
Circuit 	held 	that 	construction 	of 	a 	customs 	classification
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 11 of 18

Consolidated
Court No. 02-00730
Page 12
provision by a panel of that court is binding upon both this court
and 	other 	circuit 	panels 	in 	subsequent 	classification 	cases
involving 	the 	same 	heading 	or 	subheading. 	752 	F.3d 	at 	966. 	In
that 	case, 	the 	court 	of 	appeals 	made 	clear 	that 	stare 	decisis
governs 	the 	classification 	of 	the 	subject 	sandals. 	“Deckers 	I
provides a binding construction of subheading 6404.11 such that any
merchandise classified into that subheading must include ‘enclosed
uppers.’” 	752 F.3d at 959. 	This court does not have the authority
to 	go 	beyond 	that 	binding 	legal 	interpretation 	in 	this 	case
unilaterally. 	Id. 	at 	966. 	“Only 	through 	an 	en 	banc 	opinion,
intervening Supreme Court precedent, or a change in the underlying
statute 	by 	Congress 	can 	we 	deviate 	from 	our 	prior 	construction
through a showing of clear error.” 	Id. 	The Supreme Court has not
issued an intervening decision that implicates the issues in this
renewed 	test 	case, 	and 	Congress 	has 	not 	enacted 	any 	relevant
legislation. 	Therefore, plaintiff’s only avenue for removing this
matter 	from 	the 	ambit 	of 	stare 	decisis 	is 	through 	proof 	of 	clear
error 	in 	this 	court 	to 	preserve 	the 	issue 	for 	potential 	en 	banc
review on appeal.
The plaintiff argues that the ejusdem generis analysis of
subheading 6404.11 in Deckers I was clearly erroneous. 	According
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 12 of 18

Consolidated
Court No. 02-00730
Page 13
to it, the scope of the term “and the like” in that subheading “may
be a legal determination” but “what those essential characteristics
are 	is 	a 	factual 	determination 	which 	must 	be 	made 	by 	the 	trial
court.” 	It 	contends 	that 	this 	court 	did 	not 	make 	any 	factual
findings 	regarding 	the 	scope 	of 	that 	tariff 	term. 	Based 	on 	that
proposition, it further contends that the appellate panel made an
improper factual finding when it held that the “‘evidence adduced
at 	trial 	established 	that 	the 	fundamental 	feature 	that 	the
exemplars 	share 	is 	the 	design, 	specifically 	the 	enclosed 	upper
. 	. 	. 	[emphasis 	in 	original].’” 	Pl’s 	Opp. 	at 	5. 	The 	plaintiff
concludes that the Federal Circuit improperly “substituted its own
factual findings for the factual findings of the trial court.” 	Id.
Plaintiff’s 	argument 	seems 	to 	misconstrue 	the 	Federal
Circuit’s standard of review and the doctrine of ejusdem generis,
and its papers do not refer to any evidence that would demonstrate
that 	Deckers 	I 	and 	Deckers 	II 	are 	clearly 	erroneous. 	Unlike 	the
record 	in 	Deckers 	I 	and 	Deckers 	II, 	the 	factual 	record 	here 	is
skeletal. 	Plaintiffs’ 	sole 	identified 	witness 	is 	a 	purported
expert 	who 	only 	tested 	one 	style 	of 	sandal 	at 	issue 	and 	admitted
that the resultant data were not sufficiently accurate to include
in his company’s database. 	Additionally, the expert could not shed
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 13 of 18

Consolidated
Court No. 02-00730
Page 14
any 	light 	on 	the 	other 	named 	exemplars 	in 	subheading 	6404.11,
HTSUS.
Because 	there 	are 	no 	genuine 	issues 	of 	material 	fact
regarding 	the 	nature 	of 	the 	merchandise, 	this 	third, 	arguably
repetitive, 	test 	case 	re-presents 	a 	purely 	legal 	issue, 	namely,
interpretation of the operative language of subheadings 6404.11.80
and 	6404.11.90 	(“tennis 	shoes, 	basketball 	shoes, 	gym 	shoes,
training 	shoes 	and 	the 	like”). 	In 	Deckers 	I 	and 	Deckers 	II, 	the
issue 	on 	appeal 	was 	the 	propriety 	of 	affirming 	Customs’
classification 	of 	the 	subject 	sandals 	in 	subheading 	6404.19.35,
HTSUS. 	But, 	the 	meaning 	of 	a 	tariff 	provision 	is 	a 	question 	of
law, which the Federal Circuit reviews de novo. 	E.g., Lynteq, Inc.
v. United States, 976 F.2d 693, 696 (Fed.Cir. 1992). 	No deference
is 	accorded 	to 	this 	court’s 	decisions 	on 	appeal 	regarding 	the
proper scope of a tariff provision. 	Id.
Under the rule of ejusdem generis (“of the same kind”),
where 	an 	enumeration 	of 	specific 	things 	is 	followed 	by 	a 	general
word 	or 	phrase, 	the 	general 	word 	or 	phrase 	is 	held 	to 	refer 	to
articles 	of 	the 	same 	kind 	as 	the 	specified 	articles. 	In
classification 	cases, 	the 	principle 	of 	ejusdem 	generis 	requires
that 	the 	imported 	merchandise 	possess 	the 	same 	essential
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 14 of 18

Consolidated
Court No. 02-00730
Page 15
characteristics 	or 	purposes 	that 	unite 	the 	specific 	enumerated
articles to be classified under the general word or phrase. 	E.g.,
Airflow Tech., Inc. v. United States, 524 F.3d 1287, 1292 (Fed.Cir.
2008). 	To 	determine 	the 	essential 	characteristic, 	courts 	can
consider 	attributes 	such 	as 	the 	purpose, 	character, 	material,
design, 	and 	texture. 	See, 	e.g., 	United 	States 	v. 	Danmak 	Trading
Co., 43 CCPA 77 (1956). 	In accordance with its standard of review,
the Federal Circuit interpreted, de novo, the tariff term “and the
like” in subheading 6404.11, HTSUS.
The 	plaintiff 	alleges 	clear 	error 	in 	Deckers 	I, 	but 	it
does 	not 	cite 	any 	case 	to 	support 	its 	proposition 	that 	ejusdem
generis 	analysis 	requires 	a 	factual 	finding 	by 	a 	trial 	court, 	or
that the Federal Circuit cannot perform such analysis de novo. 	The
interpretation 	of 	a 	statute 	is 	a 	question 	of 	law, 	and 	ejusdem
generis 	is 	used 	by 	courts 	to 	assist 	in 	answering 	that 	question.
The 	court 	of 	appeals 	in 	Deckers 	I 	analyzed 	each 	of 	the 	named
exemplars 	in 	subheading 	6404.11, 	HTSUS, 	based 	on 	the 	facts 	that
were 	in 	the 	record 	made 	before 	this 	court. 	It 	then 	held 	that 	an
enclosed upper is the unifying characteristic of the exemplars in
that subheading. 	Plaintiff’s repeated position does not persuade
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 15 of 18

Consolidated
Court No. 02-00730
Page 16
now that the Federal Circuit’s ejusdem generis analysis was clearly
erroneous or otherwise improper.
C
In short, this matter is ripe for summary judgment. 	And
the defendant is entitled to it as a matter of law.
In classification cases, summary judgment is appropriate
when there is no dispute as to the “nature” of the merchandise at
issue, 	and 	the 	only 	issue 	is 	the 	meaning 	and 	scope 	of 	a 	tariff
provision. 	E.g., Faus Group, Inc. v. United States, 581 F.3d 1369,
1372 	(Fed.Cir. 	2009); 	Intercontinental 	Marble 	Corp. 	v. 	United
States, 381 F.3d 1169, 1173 (Fed.Cir. 2004); Bausch & Lomb, supra;
The Pomeroy Collection, Ltd. v. United States, 35 CIT 761, 763, 783
F.Supp.2d 	1257, 	1260 	(2011). 	See 	also 	Deckers 	Corp., 	supra, 	714
F.3d at 1371. 	The record evidence here is unequivocal: all of the
material 	facts 	necessary 	to 	determine 	the 	classification 	of 	the
sandals at issue are already before the court.
They 	continue 	to 	be 	classifiable 	under 	subheading
6404.19.35, supra, as a matter of law because they have open toes
and/or open heels, as considered in the previous Decker opinions,
and 	as 	the 	parties 	at 	bar 	know. 	Samples 	of 	five 	of 	the 	styles 	of
sandals at issue have been filed with the court, and the defendant
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 16 of 18

Consolidated
Court No. 02-00730
Page 17
has also submitted photographs of all seven at issue. Additionally,
the defendant does not dispute the facts that were established at
trial 	in 	Deckers 	I 	and 	set 	forth 	in 	this 	court’s 	decision. 	The
articles 	are 	therefore 	classifiable 	under 	subheading 	6404.19.35,
HTSUS.
The record further shows that the subject sandals cannot
be classified under subheadings 6404.11.80 or 6404.11.90, HTSUS, as
a 	matter 	of 	law, 	because 	the 	Federal 	Circuit 	has 	held 	that 	the
operative 	language 	of 	those 	tariff 	provisions, 	“tennis 	shoes,
basketball 	shoes, 	gym 	shoes, 	training 	shoes 	and 	the 	like”,
encompasses 	shoes 	with 	enclosed 	uppers. 	This 	court 	is 	bound 	by
that court’s interpretation, and, undeniably, the sandals at issue
do not have enclosed uppers.
The classification of five of the seven styles of sandals
at 	issue 	were 	previously 	addressed 	in 	Deckers 	II. 	The 	plaintiff
here does not point to any material facts in the record regarding
the 	“nature” 	of 	those 	sandals 	that 	would 	call 	for 	a 	different
result 	or 	would 	be 	in 	addition 	to 	those 	addressed 	in 	Deckers 	II.
Finally, the plaintiff does not show or persuade that there are any
material 	differences 	with 	respect 	to 	the 	remaining 	two 	styles,
which 	were 	not 	at 	issue 	in 	Deckers 	II, 	that 	would 	call 	for 	a
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 17 of 18

Consolidated
Court No. 02-00730
Page 18
different 	result 	with 	respect 	to 	them. 	For 	that 	matter, 	as
mentioned, 	in 	its 	motions 	to 	suspend 	the 	instant 	matter, 	first
under test case No. 02-00674 and then under test case No. 02-00732,
the plaintiff represented that the disposition of its merchandise
would be facilitated by such suspensions because the test case(s)
involved 	the 	same 	class 	or 	kind 	of 	goods 	and 	the 	same 	claims,
making it clear that the sandals in this instant action entail the
same issues of law and fact. 	Inasmuch as the facts relating to the
“nature” of the merchandise are undisputed and are already on the
record, 	all 	the 	evidence 	necessary 	to 	determine 	the 	proper
classification of the sandals at issue is before the court.
II
In sum, the evidence already of record establishes that
plaintiff’s Pretty Rugged, Trail Raptor, Road Raptor, Vector, Terra
Fi, 	Universal 	Approach, 	and 	Universal 	Guide 	are 	correctly
classifiable 	under 	subheading 	6404.19.35, 	HTSUS, 	and 	judgment 	to
that effect will therefore enter accordingly.
So ordered.
Decided: 	New York, New York
February 4, 2019
/s Thomas J. Aquilino, Jr.
Senior Judge
Case 1:02-cv-00730-TJA Document 60 Filed 02/04/19 Page 18 of 18