Deckers Corp. v. United States

Slip Op. 05 - 159

UNITED STATES COURT OF INTERNATIONAL TRADE

- - - - - - - - - - - - - - - - - - -x

DECKERS CORPORATION, :

Plaintiff, :

v. : Court No. 02-00674

THE UNITED STATES, :

Defendant. :

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Memorandum & Order

[Defendant’s motion for summary judgment as to
classification of sandals from China denied.]

Dated: December 15, 2005

Rode & Qualey (Patrick D. Gill, Michael S. O'Rourke and Will-
iam J. Maloney) for the plaintiff.

Peter D. Keisler, Assistant Attorney General; Barbara S.
Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (James A. Curley); and Office of Assistant Chief Counsel,
U.S. Customs and Border Protection (Michael W. Heydrich), of coun-
sel, for the defendant.

AQUILINO, Senior Judge: In Hebrew, Teva means Nature.

In American, it can mean sandals under patent that have been

produced in Hong Kong for import here, the tariff classification of

three models of which, the Pretty Rugged Sport Sandal, the Terra-

dactyl Sport Sandal, and the Aquadactyl Sport Sandal, is the basis

of this test case within the meaning of USCIT Rule 84(b). Upon

entry of those particular Teva®s through the port of Los Angeles,
Court No. 02-00674 Page 2

California, the U.S. Customs Service, as it was then still known,

classified them under heading 6404 (footwear with outer soles of

rubber or plastics and uppers of textile materials) of the

Harmonized Tariff Schedule of the United States ("HTSUS") (1998),

in particular subheading 6404.19.35 at a rate of duty of 37.5

percent ad valorem. The plaintiff protested that classification,

taking the position that those sandals should have been classified

under subheading 6404.11.80, which prescribed a duty of 20 percent

ad valorem plus 90¢ per pair valued over $6.50 but not over $12.

Customs denied the protest, and this case commenced.

I

The court's jurisdiction is pursuant to 28 U.S.C. §§

1581(a), 2631(a). The gravamen of plaintiff's complaint is that

its merchandise is "athletic footwear", which is sold as such "for

sporting and athletic purposes including, but not limited to,

whitewater river rafting". Complaint, para. SEVENTEENTH. Follow-

ing the filing of defendant's answer and the completion of

discovery, counsel for the plaintiff filed a formal request for

trial in the federal courthouse in Santa Barbara, California 1,

which apparently is located near its corporate headquarters and

possible witnesses. The defendant objected to that request, in

part upon the stated ground that

[w]hether Customs correctly interpreted subheading
6404.11.80, HTSUS, to require that the imported sandals
be ejusdem generis with the named exemplars is a question

1
Cf. USCIT Rule 77(c)(2).
Court No. 02-00674 Page 3

of law. As such, there is no genuine issue of material
fact in dispute as to that question, which can be decided
on summary judgment. Moreover, the thrust of the
plaintiff's complaint rests on the meaning of the
competing tariff provisions. . . . If the Court decides
on summary judgment that the imported sandals are not
ejusdem generis with the named exemplars, then there is
no need for a trial.

Defendant's Opposition to the Plaintiff's Request for Trial, pp. 4-

5 (citation and footnote omitted).

Upon hearing both sides with regard to this opposition,

the court granted the defendant leave first to interpose a motion

for summary judgment on the issues that it claims are dispositive

of this test case. As posited in such motion subsequently filed,

they are:

1. Whether . . . Customs . . . correctly classified
the imported sandals under subheading 6404.19.35,
HTSUS, as "footwear with open toes or open heels,"
etc.

2. Whether the imported sandals should have been class-
ified under subheading 6404.11.80, HTSUS, as "ten-
nis shoes, basketball shoes, gym shoes, training
shoes and the like" etc., as contended by the plain-
tiff.

Defendant's Brief, p. 1. Plaintiff's papers in opposition

formulate the questions as follows:

1. Whether the term "tennis shoes, basketball
shoes, gym shoes, training shoes and the like" in sub-
heading 6404.11 covers all athletic footwear (other than
sports footwear as defined in subheading Note 1 to
Chapter 64).

2. Whether the term "athletic footwear" in Ad-
ditional U.S. Note 2 to Chapter 64 is an eo nomine pro-
vision which includes all forms of athletic footwear.
Court No. 02-00674 Page 4

3. Whether there are genuine issues of material
fact as to whether the imported merchandise is within the
common meaning of the term "athletic footwear."

Plaintiff's Brief, p. 2. The last question presented is a

reflection of plaintiff's continuing opposition to resolution of

this action without trial viz.:

. . . In this instance defendant "bears the burden of
demonstrating the absence of all genuine issues of
material fact." Avia Group Int'l. Inc. v. L.A. Gear
California, Inc., 853 F.2d 1557, 1560 (Fed.Cir. 1988).
Plaintiff has identified . . . numerous material issues
concerning "facts that might affect the outcome of the
suit under the governing law." Anderson v. Liberty Lob-
by, Inc., 477 U.S. 242, 248 (1986). Because this action
puts into issue the use, characteristics or properties of
the merchandise being classified, summary judgment is not
warranted. See, Brother Int'l. Corp. v. United States,
248 F.Supp.2d 1224, 1226 (CIT 2002).

Id. at 1-2.
II

As required by USCIT Rule 56(h), defendant's motion

includes a separate, short and concise statement of the material

facts as to which it contends there is no genuine issue to be

tried, to wit:

1. The plaintiff imported sandals . . . in Entry
No. 275-0139524-1 . . . [, which] was liquidated . . .
under subheading 6404.19.35, . . . HTSUS . . .. The
plaintiff filed Protest No. 2704-99-100787 with . . .
Customs . . ., claiming that the entry should have been
classified under subheading 6404.11.80, HTSUS . . ..

2. . . . Customs denied that part of Protest No.
2704-99-100787 directed to the plaintiff's claim to
classification of the imported sandals under subheading
6404.11.80 HTSUS . . . based on HQ 963395 ruling, which
issued on April 2, 2002. . . .
Court No. 02-00674 Page 5

3. The imported merchandise in issue consists of
three styles . . . [that] are shown in the plaintiff's
catalog, which is entitled "Teva Footwear and Apparel
Spring 2000." The Pretty Rugged sandal is shown on page
9 . . ., the Terradactyl sandal is shown on pages 8 and
9 . . ., and the Aquadactyl sandal is shown on page 6
. . .. Copies of these pages . . . are included in
Defendant's Exhibit A . . ..

4. The sandals in issue[] have uppers composed of
textile materials and soles composed of rubber or
plastics. . . . The front or toe end of each sandal's
upper consists of two flat, looped, textile straps that
are joined together by a plastic ring. The longer of the
two looped straps is adjustable and secures with a hook
and loop fabric closure. The straps are attached to the
sandal's foot bed to anchor the strap at two points. The
rear or heel end of each upper consists of two flat,
looped, textile side posts which are attached to the
sandal's foot bed. Each post is joined by a plastic ring
to adjustable ankle straps which secure with hook and
loop fabric closures at the front and back of the ankle.
The front straps are connected to the rear straps by a
flat looped strap of textile material. The sandals are
open at the toe, heel, top and sides. . . .

5. The sandals in issue do not have, or have provi-
sion for, the attachment of spikes, sprigs, cleats,
stops, clips, bars or the like. . . .

Citations omitted. That Rule 56(h) provides that all material

facts in the statement required to be served by the moving party

will be deemed admitted unless controverted by the statement

required to be served by the opposing party. Plaintiff's response

is set forth in Section III B of its brief under the heading:

"Plaintiff Does Not Agree that Most of Defendant's Numbered

Statements of Material Facts Are Not At Issue." It makes no

reference to defendant's paragraph 5, which is thus deemed

admitted. Cf. Plaintiff's Brief, p. 11; Subheading Note 1, ch. 64,
Court No. 02-00674 Page 6

HTSUS. As for the four other paragraphs, plaintiff's response is

not in keeping with the expectation of that rule or of this court.

Be that as it is, plaintiff's position is and has been

clear: it desires a trial in order to attempt to prove its own

Statement of Genuine Material Facts Which Are at Issue2, to wit:

1. The merchandise in question is "athletic footwear"
as provided for in Additional U.S. Note 2 to Chap-
ter 64.

2. The imported merchandise is sold as athletic foot-
wear.

3. Merchandise in issue is used for sporting and
athletic purposes including, but not limited to,
whitewater rafting.

4. The imported merchandise is sold under the regis-
tered trademark Teva® and is patented in the United
States Patent Office (Patent #4,793,075), described
as "SPORT SANDAL FOR ACTIVE WEAR."

5. Teva® sport sandals are conducive to fast footwork
associated with athletic activities.

6. The imported footwear is the type commonly referred
to by the footwear industry and consumers as sport
sandals or athletic sandals.

7. Sport sandals are recognized as athletic footwear
by the footwear industry.

See also Plaintiff's Brief, pp. 17-24.

2
Complete capitalization deleted.
Court No. 02-00674 Page 7

Defendant's Response to Plaintiff's Statement of Material

Facts at Issue, attached to its reply brief3, denies these aver-

ments. See also Defendant's Brief in Reply, pp. 15-19. That brief

argues that, even assuming arguendo that the allegations in para-

graphs 2-7 are true, the sandals at bar still are not athletic

footwear for tariff purposes because they are not tennis shoes,

basketball shoes, gym shoes, training shoes, or like those shoes.

See id. at 17-19. Whatever the precise formulation of the

issue(s), the court cannot conclude that resolution thereof can be

achieved without trial of any of plaintiff’s averments of fact.

A

The physical appearance of the merchandise cannot be

disputed. In its complaint, the plaintiff points to U.S. Patent

Number 4,793,075, an abstract of which states:

A sandal with an elongated sole configured to the profile
of a human footprint with a toe end and a heel end,
employs a toe strap connected at two anchor points to
grip the forward part of [a] user’s foot and a heel strap
connected at two anchor points to grip the ankle of a
user’s foot with a lateral strap connected between the
toe strap and the heel strap which is located on the
outside of the sole and parallel to its surface so it is
operable to stabilize the other straps and to maintain
essentially constant tension in the individual straps as
the sole flexes, with the toe and heel straps being

3
Id. Defendant's motion for leave to file this "oversized"
presentation can be, and it hereby is, granted.

Indeed, the quality of the written submissions on both sides
obviates the need to grant plaintiff's motion for oral argument,
which is thus hereby denied.
Court No. 02-00674 Page 8

infinitely adjustable so the wearer can cinch the sandal
to his foot by adjusting said straps in a manner that it
will not be dislodged during rigorous activity.

Plaintiff’s Exhibit 2, p. 1. FIG _ 2 of that patent provides a

schematic representation that is reproduced below:

As indicated, this product has both an open toe and open heel which

place it within the ambit of subheading 6404.19.35, HTSUS4, 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:

4
The sandals do not land under subheading 6404.19.25, HTSUS,
because they are more than ten percent by weight of rubber or
plastics. See Defendant's Motion for Summary Judgment, Declaration
of Richard G. Foley, para. 5.
Court No. 02-00674 Page 9

6404.19 Other:

Footwear with open toes or
open heels; . . .

6404.19.35 Other: . . . . . . ..

Nonetheless, the plaintiff argues that General Rule of

Interpretation ("GRI") 3(a) calls for classification under a more

specific description. That rule states, in part:

When . . . goods are, prima facie, classifiable under two
or more headings, classification shall be effected as
follows:

(a) The heading which provides the most specific
description shall be preferred to headings
providing a more general description. . . .

And since GRI 6 allows for application of the rule to subheadings,

the plaintiff contends that the more specific classification lies

in 6404.11.805, viz:

6404.11 Sports footwear; tennis shoes, basketball
shoes, gym shoes, training shoes and the like:

Other:

6404.11.80 Valued over $6.50 but not over
$12/pair . . . . . . . . . . ..

The defendant does not agree.

5
See Complaint, para. NINTH:

If the imported merchandise is described in both
subheading 6404.19.35, HTSUS, and subheading 6404.11.80,
HTSUS, classification under subheading 6404.11.80, HTSUS,
is required since that is the provision which contains
the most specific description of the merchandise under
G[RI] 3(a), HTSUS.
Court No. 02-00674 Page 10

III

To determine whether the merchandise at bar should have

been classified under this subheading, the court must first as-

certain the meaning of the relevant tariff terms. See, e.g.,

Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed.

Cir. 1994); Warner-Lambert Co. v. United States, 28 CIT ___, ___,

341 F.Supp.2d 1272, 1276 (2004), aff’d, 425 F.3d 1381 (Fed.Cir.

2005). This, of course, is fundamentally a question of law.

E.g., Universal Electronics Inc. v. United States , 112 F.3d 488,
491 (Fed.Cir. 1997); Medline Indus., Inc. v. United States, 62 F.3d

1407, 1409 (Fed.Cir. 1995).

A

The plaintiff is of the view that the term "tennis shoes,

basketball shoes, gym shoes, training shoes and the like" is

"defined by Additional U.S. Note 2 to Chapter 64 as all 'athletic

footwear' subject to certain exceptions which the parties agree do

not apply to the Teva® sport sandals". Plaintiff’s Brief, pp. 2-3

(emphasis in original). It postulates that

Congress eliminated the need to make subjective determi-
nations as to whether shoes other than the named exem-
plars are "like" the named exemplars. It laid this issue
to rest by putting the named exemplars and any shoes like
them in one defining basket: "athletic footwear." Hence,
there is no need to make the subjective and contentious
determinations of what is "like" as suggested by defend-
ant since Congress has defined the entire term including
the exemplars and the term "and the like" as meaning
athletic footwear.
Court No. 02-00674 Page 11

Id. at 7. On its face, however, the language of that additional

note is not so convincing, stating only that, for

the purposes of this chapter [64], the term "tennis
shoes, basketball shoes, gym shoes, training shoes and
the like" covers athletic footwear other than sports
footwear (as defined in subheading note 1 . . .), whether
or not principally used for such athletic games or
purposes.

Emphasis in original. Thus, to attempt to extrapolate therefrom

congressional intent to substitute, for purposes of interpreting

subheading 6404.11.80, "athletic footwear" for the list of exem-

plars and their like is tenuous. Cf. Defendant’s Brief, pp. 16-17:
The plaintiff’s interpretation of Note 2 [] is
incorrect because it gives no effect to the language,
"tennis shoes, basketball shoes, gym shoes, training
shoes and the like." Reiter v. Sonotone Corp., 442 U.S.
330, 339 (1979)("In construing a statute we are obliged
to give effect, if possible, to every word Congress
used"); United States v. Menasche, 348 U.S. 528, 538-39
(1955). If Congress had intended the meaning urged here
by the plaintiff, it would not have included the named
exemplars - and surely would not have included the
language "and the like" - in Note 2 and subheading
6404.19.35, HTSUS. Instead, Congress would have provided
simply for "athletic footwear other than sports footwear
(as defined in subheading Note 1 above) . . .."6

6
The plaintiff correctly points out on page 7 of its brief
that

the defined statutory phrase in issue and its
"exemplars," which are found in subheading 6404.11, were
not creations of Congress, but rather were part of the
six-digit International Harmonized Schedule language
which the United States agreed to adopt subject to the
right to make changes beyond the 6 digit level as was
done in this case. See Carl Zeiss, Inc. v. United
States, 195 F.3d 1375, 1378 n.1 (Fed.Cir. 1999).
Court No. 02-00674 Page 12

Moreover, the additional note does not purport to cover all

athletic footwear7, a point that arguably finds contextual support

in that the

antecedent basis for "such athletic games or purposes" is
the game or purpose for which a tennis shoe, basketball
shoe, gym shoe, training shoe and the like is worn.

Id. at 17.

B

Although this court has been unable to locate legislative

light on the intended practical impact of the additional U.S. note

on subheading 6404.11, the changes engendered by the enactment of

the HTSUS, effective January 1, 1989 8, do provide a background
therefor.

(1)

Prior to harmonization, footwear was classified in ac-

cordance with the headings of U.S. Tariff Schedule 7, Part 1. And,

although "athletic footwear" does not now appear in any heading or

subheading of HTSUS chapter 64, it did appear in that schedule for

the year 1987, for example. Moreover, Subpart A statistical head-

note 1(a) explained that

the term "athletic footwear" covers footwear of special
construction for baseball, football, soccer, track,
skating, skiing, and other athletic games, or sports[.]

7
See Defendant’s Brief, p. 16.
8
See Omnibus Trade and Competitiveness Act of 1988, Pub. L.
No. 100-418, §§ 1201-17, 102 Stat. 1107, 1147-65.
Court No. 02-00674 Page 13

Unlike the harmonized system of today, however, its predecessor did

not, by name, provide for "sports footwear". Yet, the juxtaposi-

tion of that schedule’s description of athletic footwear, quoted

above, with the current description of sports footwear in Subhead-

ing Note 1 to chapter 64, quoted below, at least evokes some sense

of continuity:

For the purposes of subheading[] . . . 6404.11, the
expression "sports footwear" applies only to:
(a) Footwear which is designed for a sporting activity
and has, or has provision for the attachment of spikes,
sprigs, cleats, stops, clips, bars or the like;

(b) Skating boots, ski-boots and cross-country ski
footwear, snowboard boots, wrestling boots, boxing
boots and cycling shoes.

In a general sense, what was once seemingly considered athletic

footwear is now considered sports footwear.

(2)

Amidst such re-organization and -characterization, the

HTSUS introduced "tennis shoes, basketball shoes, gym shoes,

training shoes and the like". As stated, it is plaintiff’s inter-

pretation of Additional U.S. Note 2 in connection therewith, and

specifically the casual use of the term "athletic footwear", that

gives it cause to end its inquiry as to the scope of its preferred

subheading. Without more convincing support that such rote sub-

stitution was the intent of Congress, however, this court cannot,

and therefore does not, do the same.
Court No. 02-00674 Page 14

C

Instead, this court opts for a more deliberate con-

struction of subheading 6404.11 in accordance with the rule of

ejusdem generis.9

Under th[at] rule . . ., which means "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 things of the same kind as those
specified.

Sports Graphics, Inc. v. United States , 24 F.3d 1390,
1392 (Fed.Cir. 1994) . . .; see generally 2A Norman J.
Singer, Statutes and Statutory Construction, § 47.17, at
273 (6th ed. 2000) ("Where general words follow specific
words in a statutory enumeration, the general words are
construed to embrace only objects similar in nature to
those objects enumerated by the preceding specific
words.").

Micron Technology, Inc. v. United States, 243 F.3d 1301, 1308
(Fed.Cir. 2001). Such construction

requires that the imported merchandise possess the
essential characteristics or purposes that unite the
articles enumerated eo nomine in order to be classified
under the general terms. Nissho-Iwai Am. Corp. v. United
States, 10 Ct.Int'l Trade 154, 157, 641 F.Supp. 808, 810
(1986).

Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed.
Cir. 1994).

9
See, e.g., Economy Cover Corp. v. United States, 76 Cust.
Ct. 130, C.D. 4645, 411 F.Supp. 783 (1976). Though the defendant
argued for the application of ejusdem generis in its motion
opposing trial, it has since decided that the rule "is not appli-
cable here because the statutory language, 'tennis shoes . . . and
the like,’ is not in doubt, and has a plain meaning". Defendant’s
Brief in Reply, p. 11 (citation omitted). But see Plaintiff’s
Brief, p. 15. See also HQ 081746 (Dec. 1, 1998) ("The wading boots
at issue would not be considered athletic shoes under the HTSUS as
they are not ejusdem generis to the shoes listed in Additional U.S.
Note 2 to Chapter 64").
Court No. 02-00674 Page 15

Resorting to various dictionary definitions, the defend-

ant maintains that appearance is of paramount importance for

determining whether the subject merchandise is like the exemplars:

Each of the exemplars listed in subheading
6404.11.80, HTSUS, namely tennis shoes, basketball shoes,
gym shoes and training shoes, along with sneakers,
jogging shoes and running shoes, as defined in general
lexicons or the Footwear Dictionary (1994), fully enclose
the wearer’s foot to provide a secure and supportive
enclosure that is not open at the toe, heel, top or
sides.[10]
* * *

Because the sandals in issue are open at the toe,
heel, top and sides, and do not fully enclose the
wearer’s foot, they differ from the exemplars of subhead-
ing 6404.11.80, HTSUS.11

That the sandals do not resemble, at least in appearance, the

exemplars is not challenged by the plaintiff, which instead focuses

on the use thereof. See Plaintiff’s Brief, p. 10:

Teva® sport sandals may not look like tennis shoes,
etc., but plaintiff will demonstrate that they are used
in place of tennis shoes, etc. for athletic purposes and
in many instances outperform these other types of
athletic footwear.

Furthermore:

. . . Plaintiff will demonstrate at trial that Teva®
sport sandals are used in athletic activities, where in
the past wearers used tennis shoes, sneakers, etc. For
certain athletic activities, Teva® sport sandals are
preferred.
Id. at 10-11.

10
Defendant’s Brief, pp. 12-13, citing Foley Declaration,
para. 8 and Defendant’s Exhibit B.
11
Id. at 15, citing Foley Declaration, paras. 5, 9.
Court No. 02-00674 Page 16

. . . The common characteristic or purpose of the named
exemplars in the subject tariff provision is that they
are athletic footwear and are within the same class or
kind of merchandise, i.e., athletic footwear.

Id. at 15.

And while a likeness in either of the two categories

might well satisfy the rule (in the light of its disjunctive

formulation), Customs Ruling HQ 963395 (April 2, 2002) explains the

significance of physical disparities in terms of their effect on

use:

. . . We find that the sandals are not . . . "like" the
named exemplars, each of which provides, at a minimum, a
secure and supportive enclosure for the foot. None of
the named exemplars is generally considered to be
footwear that is open at the toes or the heel, while the
sandals are open in both areas. Unlike the sandals, none
of the named exemplars is generally touted for use in the
sporting activities of swimming or surfing. Although
many types of sandals can be, and in fact are, used in
running, the features of open toes, heels, sides, and
tops would appear to have significant drawbacks. Without
the enclosure and support offered by a shoe like a
tennis, basketball, gym, or training shoe, the foot is
freer to slide in various directions. Depending on
weather, terrain, etc., the open nature of the sandals
also permits relatively easy entry of moisture, soil,
pebbles, twigs, etc., into spaces between the foot and
the footwear. While such factors may amount to mere
nuisance, they may also require erratic changes in gait
or occasional stops to remove foreign matter, adjust
straps, or rest, in order to avoid injury, none of which
is conducive to the fast footwork of a sporting
activity.12

12
Defendant’s Exhibit E, pp. 3-4. In T.D. 92-32 ( Tariff
Classsification of Protective Footwear), 26 Cust.B.& Dec. 98
(1992), Customs declined to find that hiking/backpacking boots fit
the term "tennis shoes, basketball shoes, gym shoes, training shoes
and the like". It reasoned that the boots were too heavy to
qualify, noting that "[a]ll the exemplars are used in sports which
require fast footwork or extensive running". 26 Cust.B.& Dec. at
112.
Court No. 02-00674 Page 17

Such consideration is appropriate when eo nomine exem-

plars indicate use and possess an appearance that is dictated by

that use. In Carl Zeiss, Inc. v. United States, 195 F.3d 1375,

1379 (Fed.Cir. 1999), for example, the court stated that "a use

limitation should not be read into an eo nomine provision unless

the name itself inherently suggests a type of use", citing

Pistorino & Co. v. United States, 66 CCPA 95, C.A.D. 1227, 599 F.2d

444 (1979), and United States v. Quon Quon Co., 46 CCPA 70, C.A.D.
699 (1959). To quote from Quon,

use is an important factor in determining classification
though an eo nomine designation is involved.

* * *

. . . We are not so trusting of our own notions of what
things are as to be willing to ignore the purpose for
which they were designed and made and the use to which
they were actually put. Of all things most likely to
help in the determination of the identity of a manufac-
tured article, beyond the appearance factors of size,
shape, construction and the like, use is of paramount
importance. To hold otherwise would logically require
the trial court to rule out evidence of what things
actually are every time the collector thinks an article,
as he sees it, is specifically named in the tariff act.

46 CCPA at 72-73. See also Myers v. United States, 21 CIT 654,
660-61, 969 F.Supp. 66, 72 (1997).

To determine common meaning, "the court may consult

dictionaries, lexicons, scientific authorities, and other such

reliable sources". Lonza, Inc. v. United States, 46 F.3d 1098,
Court No. 02-00674 Page 18

1106 (Fed.Cir. 1995), citing C.J. Tower & Sons of Buffalo, Inc. v.

United States, 69 CCPA 128, 133-34, 673 F.2d 1268, 1271 (1982).

The Complete Footwear Dictionary (Rossi ed. 1994), a lexicon used

by the industry, defines "gym shoe" on page 55 as "[s]neaker-type[13]

footwear used for gymnasium activities or sports". On pages 134-

35, it also provides the following definitions:

sports shoe.[14] An athletic shoe designed for any
particular kind of active sport. Each sport usu-
ally has its own shoe design requirements. Many
sports shoes are variations of others, usually with
one or more additional features to adapt to the

13
Sneaker is defined therein on page 132 as "[f]ootwear with
a rubber sole and upper of canvas or other materials, constructed
on the vulcanized process". The term "vulcanized" therein refers
to a process whereby

a rubber tape, about ¾ inch wide and 1/16 inch thick, is
attached to the side or the top of the edge of the rubber
outsole and over the bottom ½ inch or so of the upper,
which could be made of any material. After the curing in
the vulcanizing oven, it is virtually impossible to
separate the rubber components which have been joined
since they have basically been fused together. In
addition to being extremely strong, a rubber-to-rubber
"vulcanized" joint will not be weakened by immersion in
water.
Footwear Definitions, T.D. 93-88, 27 Cust.B.& Dec. 312, 322 (1993).
14
In addition to introducing basketball and tennis shoes,
"sports shoe" is also referenced as the object of a "see" signal
(on page 148) where the definition of "training shoe" would
otherwise be found. It is also worth noting that, according to
defendant's brief, page 11, note 4, a later edition of The Complete
Footwear Dictionary (2d ed. 2000) does indeed define training shoe
on page 174 as follows:

. . . Also known as cross-trainer. A sports shoe
similar in design and construction to a professional
shoe used in a given sport, such as track or basket-
ball, but can also be used for casual wear.
Court No. 02-00674 Page 19

special needs of the particular sport. Also known
as an "athletic shoe." The main types of sports
shoes are as follows:

* * *

basketball. The shoe may be either hightop or low-
cut, with upper of canvas, nylon/canvas, or
leather/canvas, laced to toe, reinforced toe
tip, padded collar, cushioned insoles, or
sometimes a removable orthotic insole insert.
The traction sole is either rubber or polyure-
thane. Air holes are in the upper for added
ventilation.

* * *

tennis. Canvas or leather/nylon mesh upper with
ventilation holes, upper cut a bit higher than
ordinary low-cut shoe; firm counter, under-
foot cushioning, padded collar and tongue,
lace-to-toe, protective toe tip. Sole design
depends on playing surface (grass, clay) and
can vary from moderate to high traction.15

Tennis shoe is also defined in Webster's Third New

International Dictionary Unabridged (1981), page 2356, as

n : a light shoe worn esp. in playing tennis and gener-
ally made of canvas with a rubber sole -- compare
SNEAKER[.]

And although that lexicon does not define "gym shoe" per se, it al-

so refers the reader to "SNEAKER" which it defines on page 2156 as

15
Boldface in original. Excerpts from this dictionary have
been provided by the defendant as Exhibit D. Counsel state that
the

Footwear Dictionary (1994) has been used as a reference
by the Customs' National Import Specialist on footwear
and by testing laboratories in the United States, and is
often cited by legal representatives of importers in
administrative matters before Customs.

Defendant's Brief, p. 10 n. 3, citing Foley Declaration, para. 7.
Court No. 02-00674 Page 20

3: a shoe usu. of canvas with a pliable rubber sole worn
esp. for sports or hiking[.]

IV

This court cannot grant defendant’s motion for summary

judgment. While factual determinations by Customs are entitled to

a presumption of correctness, it is a rebuttable one. See, e.g.,
Rollerblade, Inc. v. United States, 282 F.3d 1349, 1352 (Fed.Cir.

2002). To preclude an attempt at rebuttal herein by the plaintiff

would run contrary to the foundation of disposition by summary

judgment, namely, that there be "no genuine issue as to any

material fact". USCIT Rule 56(c). Although Customs may prevail

upon its opinion that the openness of plaintiff’s sandals prevents

their use in activities implied by the statutory exemplars, that is

a material element of the disagreement at bar. In other words,

while the reasoning in the ruling letter deserves deference, the

conclusion derived therefrom is founded on a factual premise that

the plaintiff does not concede -- in the absence of evidence

adduced in open court.

Ergo, defendant’s motion for summary judgment must be,

and it hereby is, denied. Counsel are to confer and propose to the

court on or before January 20, 2006 a schedule for trial.

So ordered.

Dated: New York, New York
December 15, 2005

Thomas J. Aquilino, Jr.
Senior Judge