Deckers Corporation v. United States

Slip Op. 13 -
UNITED STATES COURT OF INTERNATIONAL TRADE
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DECKERS CORPORATION, 	:
Plaintiff, :
v. 	: 	Court No. 02-00732
THE UNITED STATES, 	:
Defendant. :
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Opinion
[Upon cross-motions as to classi-
fication of certain Teva® sandals,
summary judgment for the defendant.]
Decided: 	April 12, 2013
Rode 	& 	Qualey 	(Patrick 	D. 	Gill, 	William 	J. 	Maloney 	and
Eleanore Kelly-Kobayashi) for the plaintiff.
Stuart F. Delery, Acting Assistant Attorney General; Barbara
S. Williams, Attorney in Charge, International Trade Field Office,
Commercial 	Litigation 	Branch, 	Civil 	Division, 	U.S. 	Department 	of
Justice (Marcella Powell); and Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection
(Michael W. Heydrich), of counsel, for the defendant.
AQUILINO, Senior Judge: 	Pursuant to 28 U.S.C. §§ 1581(a)
and 2631(a), the above-named plaintiff commenced Court No. 02-00674
to 	contest 	classification 	by 	the 	U.S. 	Customs 	Service, 	as 	it 	was
then 	still 	known, 	of 	imported 	footwear 	sub 	nom. 	Pretty Rugged
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Court No. 02-00732 	Page 2
Sport 	Sandal, 	Terradactyl 	Sport 	Sandal, 	and 	Aquadactyl 	Sport
Sandal, which action was designated a test case within the meaning
of 	USCIT 	Rule 	84(a). 	Pursuant 	to 	subsection 	(d) 	of 	that 	rule, 	a
suspension calendar was established for many, arguably-contingent
actions 	subsequently 	commenced 	by 	the 	plaintiff, 	including 	this
one, Court No. 02-00732.
I
This court in its slip opinion 05-159, 29 CIT 1481, 414
F.Supp.2d 1252 (2005), filed in the test case, denied defendant’s
motion 	for 	summary 	judgment. 	Following 	necessary 	trial 	on 	the
merits, 	however, 	judgment 	entered, 	affirming 	the 	Customs
classification 	of 	the 	foregoing 	merchandise 	and 	dismissing 	that
action per slip opinion 07-136, 31 CIT 1367 (2007), aff’d, 532 F.3d
1312 (Fed.Cir. 2008).
A
Come 	now 	counsel 	for 	the 	defendant 	with 	a 	motion 	for
summary 	judgment, 	seeking 	the 	same 	relief 	herein, 	dismissal 	of
plaintiff’s complaint. 	That pleading states succinctly:
. . . 9. 	The imported merchandise invoiced as style Nos.
6401, 	6601, 	6408, 	6653, 	1360, 	6818, 	6771B 	and 	6813 	are
valued 	at 	over 	$6.50 	per 	pair 	but 	not 	over 	$12.00 	per
pair.
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Court No. 02-00732 	Page 3
10. 	The imported merchandise invoiced as style Nos.
6650, 6641, 6025, 6823 and 6648 are valued at over $12.00
per pair.
11. 	The imported merchandise is athletic footwear.
12. 	The imported articles are shoes.
13. 	The 	imported 	style 	Nos. 	6650 	and 	6648 	are
running shoes.
14. 	The 	imported 	style 	Nos. 	6650 	and 	6648 	are
training shoes.
15. 	The imported style Nos. 6401, 6601, 6408, 6653,
6641, 6025, 6823, 1360, 6818, 6771B and 6813 are training
shoes.
16. 	The imported style Nos. set forth in paragraph
15 are ejusdem generis with the imported style Nos. 6650
and 6648.
17. 	The imported articles are used for training and
for athletic games or purposes.
18. 	The imported merchandise in issue is properly
classified 	under 	subheading 	6404.11.80, 	HTSUS, 	or
subheading 6401.11.90, HTSUS, depending on the value of
the merchandise.
It recites in its paragraphs 7 and 8 the same precatory language of
both preferred subheadings of the Harmonized Tariff Schedule of the
United States (2001), to wit:
Footwear with outer soles of rubber, plastics, . . . and
uppers of textile materials: Footwear with outer soles of
rubber or plastics: . . . tennis shoes, basketball shoes,
gym 	shoes, 	training 	shoes 	and 	the 	like: 	. 	. 	. 	Other:
. . . [.]
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Court No. 02-00732 	Page 4
On its part, Customs opted for subheading 6404.19.35:
Footwear with outer soles of rubber, plastics . . . and
uppers of textile materials: 	Footwear with outer soles
of rubber or plastics: 	Other: Footwear with open toes or
open heels; . . . 	Other . . . [.]
At the time of its filing, USCIT Rule 56(h)(1) required
defendant’s 	motion 	to 	annex 	a 	short 	and 	concise 	statement 	of 	the
material facts as to which counsel contend there is no genuine issue
to be tried. 	Their statement is, in part, as follows:
. . . 4. 	The 	Pretty 	Rugged 	sports 	sandal 	(“Pretty
Rugged”) 	has 	an 	upper 	composed 	of 	textile 	materials.
. . .
5. 	The 	Pretty 	Rugged 	has 	a 	sole 	composed of
rubber or plastic. . . .
6. 	The Pretty Rugged has open toes. . . .
7. 	The Pretty Rugged has open heels. . . .
8. 	The 	upper 	of 	the 	Pretty 	Rugged 	does not
enclose the foot and ankle. . . .
Defendant’s 	Statement 	of 	Undisputed 	Material 	Facts 	(citations
omitted). 	It describes similarly the other models of Teva® sandals
at issue herein, namely Pretty Rugged Nylon [see id., paras. 9-13],
Terradactyl [see id., paras. 14-18], Trail Wraptor [see id., paras.
19-23], Road Wraptor [see id., paras. 24-28], Ultimate Thong Guide
[see 	id., 	paras. 	29-33], 	Alp 	Pro 	[see 	id., 	paras. 	34-38], 	Vector
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Court No. 02-00732 	Page 5
[see id., paras. 39-43], Terra Fi [see id., paras. 44-48], Way Point
Terra Fi [see id., 	paras. 	49-53], Circuit Nylon Women’s 	[see id.,
paras. 54-58], and Terra Fi Buckle [see id., paras. 59-63].
The 	plaintiff 	has 	responded 	with 	a 	cross-motion 	for
summary judgment, including a Rule 56(h) statement, agreeing “that
there are no material facts as to which there exists a genuine issue
to 	be 	tried 	and 	[that] 	the 	issues 	are 	amen[]able 	to 	resolution
through dispositive motions.”
However, 	plaintiff 	submits 	that 	defendant’s
Statement of Material Facts 8, 13, 18, 22, 23, 27, 28,
33, 38, 42, 43, 48, 53, 58, and 63 . . . are inaccurate.
Nevertheless, . . . these inaccuracies do not create a
triable 	issue 	of 	fact 	because 	the 	inaccuracies 	are
manifest from an examination of the samples themselves,
Exhibits 	19-31[,] 	and 	the 	testimony 	of 	plaintiff’s
potential witnesses in Exhibits 1, 32, 33, and 34.
Plaintiff’s 	Statement 	of 	Undisputed 	Material 	Facts, 	pp. 	1-2. 	It
proceeds 	to 	explain 	away 	“these 	inaccuracies” 	[see 	id. 	at 	2-3],
concluding that they
have 	no 	bearing 	on 	the 	ultimate 	issue 	in 	this 	case 	--
whether the Teva® Sports Sandals in issue are “training
shoes.”
Id. at 3. 	The plaintiff then “submits that the following additional
undisputed 	facts 	exist 	in 	this 	case 	which 	are 	supportive 	of
plaintiff’s Cross-Motion for Summary Judgment:”
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Court No. 02-00732 	Page 6
64. 	The Teva® Sports Sandals in issue are shoes. . . .
65. 	The 	Teva® 	Sports 	Sandals 	in 	issue 	are 	training
shoes. . . .
66. 	The Teva® Sports Sandals have special features that
enhance the foot’s natural abilities with traction,
cushioning and support. . . .
67. 	All 	of 	the 	Teva® 	Sports 	Sandals 	in 	issue 	are
athletic footwear. . . .
68. 	The styles 6650 and 6648 Teva® Sports Sandals are
running shoes. . . .
69. 	“Running shoes are shoes which are used for running,
jogging and training.” . . .
70. 	The 	fact 	that 	training 	shoes 	have 	openings 	or 	are
not completely enclosed does not detract from their
being training shoes if they otherwise qualify. . . .
71. 	Training shoes and athletic footwear in general are
in a constant state of evolution. . . .
72. 	There is an evolution and huge movement in training
shoes 	to 	lighter 	weight 	shoes 	and 	shoes 	which 	are
more open. . . .
73. 	Jogging is a form of running. . . .
74. 	T.D. 	93-88, 	footwear 	definitions 	published 	by 	Cus-
toms, equates training shoes with joggers. . . .
75. 	Training 	shoes 	describe 	a 	footwear 	category
comprised 	of 	products 	with 	features 	intended 	to
provide stability, traction, cushioning and support
beyond 	the 	ability 	of 	the 	human 	foot 	alone 	and 	all
of the Teva® Sports Sandals have these features. . . .
76. 	“[R]unning is both a fantastic form of training and
a huge part of training.” . . .
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Court No. 02-00732 	Page 7
77. 	“It is implicit that a running sandal is a training
sandal.” . . .
78. 	Styles 	6818, 	6813, 	6823, 	6653, 	6401, 	6408, 	1360,
6025, 6771-B, 6441, 6601, although not specifically
designed 	as 	running 	shoes, 	are 	well 	suited 	for
running and are for that reason training shoes[.] . . .
79. 	“Training 	shoes are shoes which are used in athletic
training.” . . .
80. 	A 	running 	shoe 	is 	designed 	specifically 	for 	the
activity of running. . . .
81. 	A 	training 	shoe 	is 	not 	specific 	to 	any 	particular
sport. . . .
82. 	A training shoe needs to be runnable. . . .
83. 	A 	running 	shoe 	can 	easily 	be 	used 	for 	training
because 	a 	lot 	of 	training 	is 	running. 	It 	is 	not
necessary that a great training shoe becomes a great
running shoe. . . .
84. 	Most training shoes do not have closed uppers; Most
training shoes have meshes that are like screens --
specifically 	designed 	to 	allow 	as 	much 	ventilation
as possible. . . .
85. 	The 	Teva® 	Sports 	Sandal 	removed 	the 	mesh, 	but 	kept
the same frame structure of a training shoe. . . .
86. 	Most 	training 	shoes 	or 	running 	shoes 	have 	frame
structures usually made of synthetic materials with
screens or meshes to accommodate the most amount of
ventilation. . . .
87. 	Breathability is important in training shoes and is
key 	to 	avoiding 	moisture 	build-up 	inside 	the 	shoe.
. . .
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Court No. 02-00732 	Page 8
88. 	The 	style 	6025 	is 	a 	walking 	shoe 	designed 	for
walking 	which 	is 	also 	a 	training 	shoe 	because
walking 	is 	something 	that 	is 	done 	for 	physical
fitness; the style 6025 can also be run-in. . . .
89. 	The Teva® Sport Sandals are marketed and advertised
as training shoes. . . .
90. 	All 	of 	the 	Teva® 	Sports 	Sandals 	in 	issue 	can 	be
used for running and are runnable. . . .
* 	* 	*
96. 	Teva® style 6653, Terra Fi, has been worn for
running in competitive road racing. . . .
97. 	Teva® style 6648, Trail Wraptor, has been worn by
a competitor in a 135 mile running competition
held in the Mojave Desert. . . .
* 	* 	*
99. 	Teva® Sports Sandals are worn for training in gyms[.] . . .
Id. at 3-9.
B
In 	the 	interests 	of 	brevity, 	as 	indicated 	supra, 	the
court has omitted plaintiff’s citations in support of its foregoing
averments, as well as those in toto numbered 91, 92, 93, 94, 95, 98,
and 100. 	Whatever the proof presented herein in support of each of
them, 	defendant’s 	fundamental 	position 	is 	its 	response 	to
plaintiff’s paragraph 64, to wit:
Admits that sandals in common parlance are “shoes,” but
avers 	that 	sport 	sandals 	are 	not 	“tennis 	shoes,
basketball 	shoes, 	gym 	shoes, 	training 	shoes 	and 	the
like” 	for 	purposes 	of 	the 	tariff. 	See 	Deckers
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Court No. 02-00732 	Page 9
Corporation v. United States, 523 F.3d 1312, 1317-1318
(Fed.Cir. 	2008). 	Further 	avers 	that 	sandals 	are
differentiated 	from 	shoes 	in 	sporting 	goods 	stores.
Further avers that there are significant differences in
construction 	and 	use 	between 	a 	sport 	shoe 	and 	a 	sport
sandal. . . .
Defendant’s Response to Plaintiff’s Statement of Undisputed Material
Facts, 	first 	page 	(citation 	omitted). 	Indeed, 	upon 	comparison 	of
the parties’ competing presentations as to the facts involved, this
court is unable to disagree that trial is unnecessary to resolve a
material matter. 	That is, the dispositive issue is a question of
law that is susceptible to resolution by way of summary judgment.
This 	being 	the 	case, 	the 	court 	cannot 	read 	the 	cited
decision of the Court of Appeals for the Federal Circuit, affirming
slip opinion 07-136, supra, as providing a basis for the relief for
which 	the 	plaintiff 	so 	skillfully 	prays 	herein. 	That 	decision
concluded that,
[b]ecause the sandals at issue have open toes and open
heels, and lack the features of the named exemplars of
6404.11.80, 	HTSUS, 	the 	imported 	goods 	are 	not
classifiable 	under 	that 	subheading, 	notwithstanding
their claimed status as athletic footwear.
532 F.3d at 1317.
. 	. 	. 	We 	agree 	with 	the 	Court 	of 	International 	Trade
that 	the 	Teva® 	Sandals 	are 	not 	the 	kind 	of 	shoes 	to
which subheading 6404.11.80 refers, for the same reasons
expressed in the ejusdem generis analysis.
* 	* 	*
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Court No. 02-00732 	Page 10
The merchandise at issue in this case is properly
classified under Subheading 6404.19.35, HTSUS, because
the goods indisputably fit within the plain language of
that 	unambiguous 	subheading. 	Subheading 	6404.11.80,
HTSUS, 	in 	view 	of 	Note 	2, 	does 	not 	provide 	any
alternative basis for the sandals’ classification as the
imported goods are not “like” the enumerated exemplars
of subheading 6404.11.80.
Id. at 1318.
Moreover, 	in 	their 	Motion 	to 	Designate 	Test 	Case 	and
Suspend, filed in CIT No. 02-00674 in March 2004, counsel for the
plaintiff represented that disposition of this action, if suspended
under that test case, would be facilitated because
2. 	Th[at] test case involves the same plaintiff, the
same defendant, the same class or kind of merchandise,
i.e., sports sandals, and the same claims.
That this representation was subsequently repeated by them in their
motion 	to 	designate 	this 	action, 	Court 	No. 	02-00732, 	a 	test 	case
itself did not alter its essence under the controlling law at the
time 	of 	entry 	into 	the 	United 	States 	of 	plaintiff’s 	underlying
goods, more-propitious types of athletic footwear. 	31 CIT at 1373.
Perhaps 	some 	day, 	that 	law 	will 	catch 	up 	to 	them. 	See, 	e.g.,
Proposed Test Method for the Administration of Additional U.S. Note
5 	to 	Chapter 	64, 	HTSUS, 	Concerning 	the 	Classification 	of 	Footwear
with 	Textile 	Material 	on 	the 	Outer 	Sole, 	47-14 	Cust. 	B. 	& 	Dec. 	5
(March 27, 2013).
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II
In 	view 	of 	the 	foregoing, 	defendant’s 	motion 	must 	be
granted; summary judgment will enter accordingly.
Decided: 	New York, New York
April 12, 2013
/s/ 	Thomas J. Aquilino, Jr.
Senior Judge
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J U D G M E N T
UNITED STATES COURT OF INTERNATIONAL TRADE
Thomas J. Aquilino, Jr., Senior Judge
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DECKERS CORPORATION, 	:
Plaintiff, :
v. 	: 	Court No. 02-00732
THE UNITED STATES, 	:
Defendant. :
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This 	test 	case 	within 	the 	meaning 	of 	USCIT 	Rule 	84(a)
having been duly submitted for decision; and the court, after due
deliberation, having rendered a decision herein; 	Now therefore, in
conformity with said decision, it is
ORDERED, 	ADJUDGED 	and 	DECREED 	that 	plaintiff’s 	cross-
motion for summary judgment be, and it hereby is, denied; and it is
further
ORDERED, ADJUDGED and DECREED that defendant’s motion for
summary 	judgment, 	affirming 	the 	decision 	of 	the 	United 	States
Customs 	Service 	to 	classify 	the 	merchandise 	at 	issue 	under 	HTSUS
subheading 6404.19.35 (2001), be, and it hereby is, granted; and it
is further
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Court No. 02-00732 	Page 2
ORDERED, ADJUDGED and DECREED 	that this test case be, and
it hereby is, dismissed.
Dated: 	New York, New York
April 12, 2013
/s/ 	Thomas J. Aquilino, Jr.
Senior Judge
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