  United States Court of Appeals
      for the Federal Circuit
                ______________________

             DECKERS CORPORATION,
                Plaintiff-Appellant,

                           v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2013-1356
                ______________________

    Appeal from the United States Court of International
Trade in No. 02-CV-0732, Senior Judge Thomas J. Aquili-
no, Jr.
                ______________________

                Decided: May 13, 2014
                ______________________

    PATRICK D. GILL, Rode & Qualey, of New York, New
York, argued for plaintiff-appellant. With him on the
brief was WILLIAM J. MALONEY. Of counsel was RICHARD
BRIAN BURKE.

    MARCELLA POWELL, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of New York, New York, argued for defendant-
appellee. With her on the brief were AMY M. RUBIN,
Acting Assistant Director, International Trade Field
Office; STUART F. DELERY, Assistant Attorney General,
and JEANNE E. DAVIDSON, Director, of Washington, DC,
2                               DECKERS CORPORATION   v. US



and MICHAEL W. HEYDRICH, Trial Attorney, Office of the
Assistant Chief Counsel, International Trade Litigation,
United States Customs and Border Protection, of New
York, New York.
                ______________________

    Before PROST, SCHALL, and O’MALLEY, Circuit Judges.
O’MALLEY, Circuit Judge.
     This appeal is about the proper tariff classification
categories of Teva® Sandals imported by Deckers Corpo-
ration (“Deckers”). Deckers appeals the final judgment
and decision of the United States Court of International
Trade, which determined that the Teva® Sports Sandals
at issue are properly classified under subheading
6404.19.35 of the Harmonized Tariff Schedule of the
United States (“HTSUS”). Because both the Court of
International Trade and this panel are bound by the
holding of the panel in Deckers Corp. v. United States, 532
F.3d 1312 (Fed. Cir. 2008) (“Deckers I”), and that holding
is conclusive of the question before us, we affirm.
                       BACKGROUND
    Deckers imports a variety of Teva® Sports Sandals
from Hong Kong for sale throughout the United States. 1
Deckers Corp. v. United States, 414 F. Supp. 2d 1252,
1252 (Ct. Int’l Trade 2005). The Sports Sandals all have


     1  The Sports Sandals at issue in the Deckers I ap-
peal included only the Pretty Rugged, Terradactyl, and
Aquadactyl lines. Deckers Corp., 414 F. Supp. 2d at 1252.
The merchandise at issue in this appeal are the Pretty
Rugged, Terradactyl, and Aquadactyl lines, as well as the
Alp Pro, Vector, Terra Fi, Pretty Rugged Nylon, Circuit
Nylon Women’s, Way Point Terra Fi, Terra Fi Buckle,
Road Wraptor, Trail Wraptor and Ultimate Thong Guide
lines. None have fully enclosed uppers.
DECKERS CORPORATION   v. US                               3



rubber or plastic soles and cloth or textile straps in the
upper portion of the shoe. Deckers I, 532 F.3d at 1313.
Importantly, the toe and heel sections of all of the Sports
Sandals at issue are open, and the upper section of the
Sport Sandals do not fully enclose the foot. Id. The
Sports Sandals are shoes intended to be used for athletic
pursuits, such as running, jogging, hiking, canyoneering,
and a variety of water-based activities.
    The United States Customs and Border Protection
Service (“Customs”) liquidated the sandals under sub-
heading 6404.19.35, HTSUS (“subheading 6404.19.35”).
Deckers, 414 F. Supp. 2d at 1252. Subheading 6404.19.35
includes:
6404   Footwear with outer soles of rubber, plastics,
       leather or composition leather and uppers of tex-
       tile material:
             Footwear with outer soles of rubber or plas-
             tics:
6404.19         Other: Footwear with open toes or open
                heels; footwear of the slip-on type, that is
                held to the foot without the use of laces or
                buckles or other fasteners:
6404.19.35          Other.
Products classified under subheading 6404.19.35 are
subject to a duty of 37.5% ad valorem. Subheading
6404.19.35 is known as a “basket” provision that only
becomes an appropriate subheading for classification if
merchandise cannot be classified under a more specific
subheading in heading 6404. E.M. Chems. v. United
States, 923 F. Supp. 202, 206 (Ct. Int’l Trade 1996).
    Deckers filed a protest against the subheading
6404.19.35 classification, requesting that the Sport San-
dals be classified as either 6404.11.80, HTSUS, or
6404.11.90, HTSUS (“subheading 6404.11”). Deckers, 414
4                               DECKERS CORPORATION   v. US



F. Supp. 2d at 1252. Both subheadings 6404.11.80 and
6404.11.90 include:
6404   Footwear with outer soles of rubber, plastics,
       leather or composition leather and uppers of tex-
       tile material:
             Footwear with outer soles of rubber or plas-
             tics:
6404.11         Sports footwear; tennis shoes, basketball
                shoes, gym shoes, training shoes and the
                like;
6404.11.80          Valued over $6.50 but not over $12 per
                    pair
6404.11.90          Valued over $12 per pair
Products classified under subheading 6404.11.80 are
subject to a duty of $0.90 per pair plus 20% ad valorem.
Products classified under subheading 6404.11.90 are
subject to a duty of 20% ad valorem. To be classified
under subheadings 6404.11.80 or 6404.11.90, the mer-
chandise must fit the description in subheading
6404.11they must be “sports footwear; tennis shoes,
basketball shoes, gym shoes, training shoes and the like.”
     In 2001, Deckers brought a test case before the Court
of International Trade regarding the classification dispute
over the Sport Sandals. Deckers Corp. v. United States,
Court No. 02-00674. On November 14, 2002, Deckers also
filed a summons with the Court of International Trade
that would eventually mature into the pending appeal.
Deckers then requested that the summons be suspended
during the pendency of the test case, and the Court of
International Trade granted Deckers’s motion to suspend.
    On a motion for summary judgment in the test case,
Deckers argued that Additional Note 2 to HTSUS Chap-
ter 64 defined the phrase “tennis shoes, basketball shoes,
gym shoes, training shoes and the like” of subheading
DECKERS CORPORATION    v. US                                 5



6404.11. 2 Deckers, 414 F. Supp. 2d at 1257-58. Specifical-
ly, Deckers claimed that Additional Note 2 makes clear
that the named exemplars of subheading 6404.11 are
interchangeable with the phrase “athletic footwear.” Id.
The Court of International Trade rejected this interpreta-
tion as “tenuous.” Id. at 1258. To clarify the scope of
subheading 6404.11, the Court of International Trade
attempted to construe the “and the like” language of
subheading 6404.11 through an ejusdem generis analy-
sis, 3 but determined that there were outstanding factual
issues to which Deckers should be entitled to respond at
trial. Id. at 1258-61.
    After trial, the Court of International Trade held that
the Sports Sandals should be classified under subheading



    2   Additional Note 2 to Chapter 64 HTSUS states:
“For the purposes of this chapter, the term ‘tennis shoes,
basketball shoes, gym shoes, training shoes and the like’
covers athletic footwear other than sports footwear (as
defined in note 1 above), whether or not principally used
for such athletic games or purposes.” “Sports footwear,”
as defined in Subheading Note 1 to Chapter 64 HTSUS,
only applies to: “(a) [f]ootwear which is designed for a
sporting activity and has, or has provision for the attach-
ment of spikes, sprigs, cleats, stops, clips, bars or the like;
(b) [s]kating boots, ski-boots and cross-country ski foot-
wear, snowboard boots, wrestling boots, boxing boots and
cycling shoes.” The “sports footwear” language of sub-
heading 6404.11 and Subheading Note 1 is not relevant to
the present appeal.
    3   In an ejusdem generis analysis, “where an enu-
meration 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).
6                               DECKERS CORPORATION    v. US



6404.19.35. Deckers Corp. v. United States, 31 Ct. Int’l
Trade 1367, 1372 (2007). Evidence at trial suggested that
the Sport Sandals could be used as athletic footwear for
some sports, but the Court of International Trade con-
cluded that the Sport Sandals could not be classified
under subheading 6404.11 because they were “sandals,”
and not “shoes” as required by that subheading. Id. at
1373 (“Again, there is and can be little doubt that that
term [shoe] does not cover the Teva®s at issue.”). The
Court of International Trade noted that, while it is possi-
ble that certain forms of “human athletic activity have
engendered more-propitious types of footwear,” the sub-
headings at issue are not written to cover the Sports
Sandals and it is for Congress, not the courts, to alter the
HTSUS provisions to cover such footwear. Id.
    This court affirmed the Court of International Trade’s
classification in Deckers I. The Deckers I panel first held
that Additional Note 2 to HTSUS Heading 6404 does not
subsume the listed exemplars in subheading 6404.11;
Note 2 merely explains that use alone does not establish
proper classification in that subheading. 532 F.3d at
1315. 4 We also clarified the Court of International
Trade’s interpretation of the term “shoes.” We found that
“there can be no doubt that sandals are ‘shoes,’” but that
the Court of International Trade only noted that the Sport
Sandals were not shoes as that term was intended in
subheading 6404.11. Id. at 1317.
    We then performed an ejusdem generis analysis to de-
termine the scope of the “and the like” term in subheading
6404.11. Id. at 1316-17. Deckers claimed that the essen-
tial characteristic of the listed exemplars was that they
were all athletic footwear, in essence repackaging its



    4  Deckers does not contest this interpretation in the
present appeal.
DECKERS CORPORATION   v. US                              7



Additional Note 2 argument.      The court rejected this
interpretation, holding that:
   The evidence adduced at trial established that the
   fundamental feature that the exemplars share is
   the design, specifically the enclosed upper, which
   contains features that stabilize the foot, and pro-
   tect against abrasion and impact. Because 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, notwithstand-
   ing their claimed status as athletic footwear.
Id. at 1317 (emphases added).
    Deckers filed a complaint on March 22, 2010, seeking
to reopen the summons that was suspended pending
resolution of Deckers I. There, Deckers argued that the
Sport Sandals fit within the eo nomine category of “train-
ing shoes” in subheading 6404.11. 5 Deckers submitted
new evidence purportedly demonstrating undisputed facts
that establish that the Sports Sandals are “training
shoes.” The Court of International Trade found that the
holding in Deckers I precluded it from classifying the
Sports Sandals under subheading 6404.11 because the
Sports Sandals did not have enclosed uppers. Deckers
Corp. v. United States, No. 02-00732, 2013 WL 1924357,
at *4 (Ct. Int’l Trade Apr. 12, 2013) (“[T]he court cannot
read the cited decision of the Court of Appeals for the
Federal Circuit . . . as providing a basis for relief for



   5     An eo nomine classification is one that “describes
a commodity by a specific name, usually one common in
commerce,” Nidec Corp. v. United States, 68 F.3d 1333,
1336 (Fed. Cir. 1995), and “describes an article by a
specific name, not by use,” Aromont U.S.A., Inc. v. United
States, 671 F.3d 1310, 1312 (Fed. Cir. 2012).
8                                DECKERS CORPORATION   v. US



which the plaintiff so skillfully prays herein.”). The Court
of International Trade also stated that, in the original
motion to suspend in light of the earlier test case, Deckers
argued that suspension of the pending appeal would be
appropriate because “[that] test case involves the same
plaintiff, the same defendant, the same class or kind of
merchandise, i.e., sports sandals, and the same claims.”
Id. Because the merchandise at issue was admittedly of
the same character as in the test case, the Court of Inter-
national Trade held that it was bound by the holding of
Deckers I under principles of stare decisis. Id. at *4-5.
   Deckers timely appealed the determination of the
Court of International Trade, and we have jurisdiction
pursuant to 28 U.S.C. § 1295(a)(5).
                       DISCUSSION
                             I
    We review the Court of International Trade’s grant of
summary judgment regarding a tariff classification with-
out deference. CamelBak Prods., LLC v. United States,
649 F.3d 1361, 1364 (Fed. Cir. 2011). We do accord some
deference to a Customs classification determination
pursuant to Skidmore v. Swift & Co., 323 U.S. 134 (1944),
and United States v. Mead Corp., 533 U.S. 218, 235
(2001), but only to the extent of Customs’ persuasive
power. Warner-Lambert Co. v. United States, 407 F.3d
1207, 1209 (Fed. Cir. 2005). The Federal Circuit has “an
independent responsibility to decide the legal issue of the
proper meaning and scope of HTSUS terms.” Id.
    Classification of imports under HTSUS involves two
steps. Orlando Food Corp. v. United States, 140 F.3d
1437, 1439 (Fed. Cir. 1998); see also Cummins Inc. v.
United States, 454 F.3d 1361, 1363 (Fed. Cir. 2006).
First, the trial court must construe the meaning of terms
in a given tariff provision. Orlando Food, 140 F.3d at
1439. This step is a question of law, which we review de
DECKERS CORPORATION   v. US                               9



novo. MetChem, Inc. v. United States, 513 F.3d 1342,
1345 (Fed. Cir. 2008). Second, the trial court must de-
termine if the merchandise at issue falls within the tariff
provision that the court just construed. Orlando Food,
140 F.3d 1439. This step is a question of fact, which we
review for clear error. Home Depot U.S.A., Inc. v. United
States, 491 F.3d 1334, 1335 (Fed. Cir. 2007).
                              II
    Deckers’s arguments can be grouped into two catego-
ries: (1) the Court of International Trade erred in not
analyzing new evidence Deckers presented to demon-
strate clear error in the Deckers I opinion so that Deckers
could argue that stare decisis would not apply; and (2) the
Court of International Trade erred in holding that stare
decisis limited its classification decision because this
appeal presents an issue of law that was not before the
panel in Deckers I.
    Deckers first claims that there can be no res judicata
from Deckers I under United States v. Stone & Downer
Co., 274 U.S. 225 (1927). In Stone & Downer, the Su-
preme Court held that res judicata principles did not
apply to Customs classification cases, in what was then
the Court of Customs Appeals, unless a later case involves
the exact same importation event as the prior decision.
Id. at 236-37.
    Deckers then argues that the Deckers I holding—that
“training shoes” must have enclosed uppers—is clearly
erroneous, and Deckers I would therefore not be binding
on the Court of International Trade or this panel pursu-
ant to Schott Optical Glass, Inc. v. United States, 750 F.2d
62 (Fed. Cir. 1984). According to Deckers, Schott Optical
permits any court—including any subsequent panel of
this court—to review a prior interpretation of a classifica-
tion provision by this court and to disregard that interpre-
tation upon a showing of clear error. Deckers states that
the Deckers I decision was clearly erroneous because any
10                              DECKERS CORPORATION    v. US



shoe that is “designed, marketed, sold and used as a
training shoe” should be classified eo nomine as a training
shoe in subheading 6404.11, whether it has an enclosed
upper or not. Appellant Br. 33. Deckers argues that the
Sport Sandals are merely an evolutionary step in improv-
ing traditional training shoes by providing greater
breathability, and that tariff terms are written to embrace
future improvements to merchandise that maintain the
same function as their predecessors.
    Deckers also claims that stare decisis is not relevant
to this appeal. In addition to analyzing Additional Note 2,
Deckers I interpreted the “and the like” language of sub-
heading 6404.11 through an ejusdem generis analysis.
For the present appeal, Deckers states that it has intro-
duced new evidence demonstrating that the Sports San-
dals meet the eo nomine category of “training shoes”
under subheading 6404.11. Deckers thus argues that the
eo nomine analysis of “training shoes” is a completely
independent legal issue from the ejusdem generis analysis
of “and the like” in Deckers I, even though both analyses
involve interpretation of the same HTSUS subheading.
    The government argues that the holding of Stone &
Downer—that res judicata does not bar classification
challenges to later entries of the same type of merchan-
dise by the same party—is irrelevant. It argues that basic
principles of stare decisis and concepts of what constitutes
binding precedent prevent either the Court of Interna-
tional Trade or this panel from reconsidering the legal
principle set forth in Deckers I. The government argues
that, because a prior ejusdem generis analysis of a sub-
heading can inform a later court’s construction of a named
exemplar under an eo nomine analysis, no new legal issue
is raised here. The government concludes that, because
both Deckers I and this appeal involve the construction of
subheading 6404.11, and because Deckers I involved
analysis of the term “training shoes,” this appeal does not
present a new legal issue and stare decisis may apply.
DECKERS CORPORATION   v. US                               11



The government claims, moreover, that, even if our prior
decision in Schott Optical allows a trial court to find clear
error in a precedential decision by a higher court in
classification cases, Deckers has not demonstrated clear
error in Deckers I.
    We agree with the government that Deckers I both
decided the issue that governs this appeal and is binding
on this panel.
                              III
    Our analysis focuses on two questions, both of which
are related to whether Deckers I is binding on this panel:
   (1) Does the eo nomine analysis of the “training shoes”
       exemplar in subheading 6404.11 pose a new legal
       question not present in Deckers I?
   (2) If the Deckers I panel did analyze the same legal
       issue that is presently on appeal, do Stone & Down-
       er and our previous opinions require either the
       Court of International Trade or this panel to hear
       evidence of claimed clear error in a prior preceden-
       tial opinion in classification cases?
     Stare decisis “protects the legitimate expectations of
those who live under the law” and prevents “an arbitrary
discretion in the courts.” Hubbard v. United States, 514
U.S. 695, 716 (1995) (Scalia, J., concurring in part) (quot-
ing Alexander Hamilton, THE FEDERALIST No. 78 (C.
Rossiter ed. 1961)). The Supreme Court has held that
stare decisis “promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance
on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.” Payne v.
Tennessee, 501 U.S. 808, 827 (1991). We have recognized
that stare decisis exists to “enhance[] predictability and
efficiency in dispute resolution and legal proceedings”
through creation of settled expectations in prior decisions
of the court. Lighting Ballast Control LLC v. Philips
12                               DECKERS CORPORATION    v. US



Elecs. N. Am. Corp., 744 F.3d 1272, 1281 (Fed. Cir. 2014)
(en banc). The courts thus abide by the theory of stare
decisis to promote these twin pillars of jurisprudence:
predictability and stability. Id. at 1282.
     Stare decisis “deals only with law” and each prior
precedential holding of the court becomes a “statement of
the law, or precedent, binding in future cases before the
same court or another court owing obedience to its deci-
sion.” Mendenhall v. Cedar Rapids, Inc., 5 F.3d 1557,
1570 (Fed. Cir. 1993) (internal citations removed). Stare
decisis, therefore, is limited to only the legal determina-
tions made in a prior precedential opinion and does not
apply to either issues of fact, such as classification of
specific goods within a construed tariff provision, or issues
of law that were not part of a holding in a prior decision.
Avenues in Leather v. United States, 423 F.3d 1326, 1331
(Fed. Cir. 2005) (“Avenues III”).
        SCOPE OF STARE DECISIS UNDER DECKERS I
    Deckers claims that the legal issues in the present
appeal are not the same legal issues determined by the
Deckers I panel, thereby precluding any reliance on stare
decisis principles. In particular, Deckers argues that an
ejusdem generis analysis of a tariff classification subhead-
ing is a different legal issue than an eo nomine analysis of
a listed exemplar within that same subheading. We
disagree.
                             1
    To prevail on this theory, Deckers would have to
prove that an ejusdem generis analysis, which identifies
the essential characteristics shared by all products under
a given subheading, including the listed exemplars under
that subheading, would not inform the common meaning
of a listed exemplar in an eo nomine analysis. Deckers
cannot do so. In construing a tariff term, the court first
must determine if Congress “clearly defined the term in
DECKERS CORPORATION   v. US                              13



either the HTSUS or its legislative history.” Russell
Stadelman & Co. v United States, 242 F.3d 1044, 1048
(Fed. Cir. 2001). If, as here, the term is not clearly de-
fined by Congress, the term’s “correct meaning is its
common . . . meaning in absence of evidence to the contra-
ry.” Id.
     Ejusdem generis analysis “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.” Sports
Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed.
Cir. 1994). While ejusdem generis may not be necessary
in the interpretation of a tariff provision if legislative
intent is clear, Sandoz Chem. Works, Inc. v. United
States, 50 C.C.P.A. 31, 35 (1963), ejusdem generis is a tool
we can use to appropriately construe a statutory provi-
sion, Meco Elec. Prods. v. United States, 14 Ct. Int’l Trade
181, 190 (1990). In determining the shared characteris-
tics of a list of named exemplars, an ejusdem generis
analysis attempts to divine congressional intent, which is
the purpose behind construing HTSUS provisions. See,
e.g., D.N.&E. Walter & Co. v. United States, 43 C.C.P.A.
100, 102 (1956) (performing an ejusdem generis analysis
on a list of rug style exemplars to determine a congres-
sional intent to limit that provision to only woven arti-
cles).
    An eo nomine analysis, on the other hand, attempts to
determine the common meaning of a specific listed exem-
plar in a HTSUS subheading. Nidec Corp. v. United
States, 68 F.3d 1333, 1336 (Fed. Cir. 1995); United States
v. M&D Miller, Inc., 41 C.C.P.A. 226, 229 (1954) (“An eo
nomine provision in the tariff law . . . is what the com-
monly accepted meaning of the term happens to be, and
where such common meaning is easily and clearly deter-
mined through judicial decisions and reports to Congress
on the subject by recognized authorities, such findings
presumptively include the commercial as well as the
14                               DECKERS CORPORATION    v. US



common meaning.”). Eo nomine designations include all
forms of an article, including future improvements to that
article. Nootka Packing Co. v. United States, 22 C.C.P.A.
464, 470 (1935). Eo nomine terms are thus forward-
looking, such that they include technological advance-
ments, as long as the improved article performs the same
essential function as the named exemplar. See, e.g.,
Household Mfg. Co. v. United States, 62 Cust. Ct. 198
(1969); Kaysons Imp. Corp. v. United States, 56 Cust. Ct.
146 (1966). An eo nomine designation, however, can be
limited by “a shown contrary legislative intent, judicial
decision, or administrative practice to the contrary.”
Nootka Packing Co., 22 C.C.P.A. at 470. The Customs
Court, which was the predecessor to the Court of Interna-
tional Trade, 6 has held that, if a named exemplar is
limited by other language in the tariff provision or legisla-
tive history, the eo nomine analysis will only include
articles that “possess the essential characteristics of the
specifically named or enumerated article.” M.H. Garvey
Co. v. United States, 65 Cust. Ct. 434, 444-45 (1970); id. at
444 (stating “[t]he indispensable prerequisite, however, is
that the controverted merchandise possess the essential
characteristics of the named article”); see also Airflow
Tech., Inc. v. United States, 524 F.3d 1287, 1292 (Fed. Cir.
2008) (using ejusdem generis to determine the essential
characteristics of a phrase that itself limited an eo nomine
term).
    We thus use both eo nomine and ejusdem generis
analyses to determine the common meaning of a classifi-
cation term and to establish congressional intent with
respect to an HTSUS subheading. In Airflow Technology,
we used the interpretation of an “or the like” phrase



     6  The Customs Court became the U.S. Court of In-
ternational Trade in 1980. Customs Courts Act of 1980,
Pub. L. No. 96-417, 94 Stat. 1727.
DECKERS CORPORATION   v. US                             15



through both ejusdem generis and dictionary definitions,
similar to an eo nomine analysis, to arrive at the common
meaning of an HTSUS subheading term. Airflow Techs.,
524 F.3d at 1292. Our opinion in Outer Circle Products is
also instructive. In Outer Circle Products, we sought to
determine if “soft-sided, flexible wraps” should be classi-
fied under HTSUS subheading 4202.92.90 or 3924.10.50.
Outer Circle Prods. v. United States, 590 F.3d 1323, 1325
(Fed Cir. 2010). We previously had construed heading
4202 in SGI, Inc. v. United States, 122 F.3d 1468 (Fed.
Cir. 1997), holding that heading 4202 does “not include
containers that organize, store, protect, or carry food or
beverages” pursuant to an ejusdem generis analysis. The
Court of International Trade concluded that SGI was not
relevant to the dispute before it, because SGI involved an
ejusdem generis analysis of heading 4202, while the then-
current case involved an eo nomine analysis under that
same heading. Id. at 1326. We disagreed, finding SGI
not only relevant to the eo nomine analysis, but “control-
ling in this case,” because the SGI panel expressly found
that none of the listed exemplars “involve[d] containment
of any food or beverage.” Id.
    Thus, while an ejusdem generis analysis may not be
necessary if the common meaning of an eo nomine term is
apparent, where an ejusdem generis analysis has occurred
and we have concluded that Congressional intent can be
gleaned therefrom, we may not later ignore that conclu-
sion. As we said in Airflow Technology and Outer Circle
Products, an ejusdem generis analysis informs the scope
and common meaning of each of the listed exemplars in
an HTSUS subheading, which is the same goal of an eo
nomine inquiry. For these reasons, Deckers is incorrect
that the Deckers I court did not examine the legal issues
in the present appeal—both Deckers I and the present
appeal involve the construction of subheading 6404.11.
16                               DECKERS CORPORATION    v. US



                             2
    Our conclusion that no new legal issue is raised in
this appeal is consistent with our resolutions in what the
parties refer to as the Avenues in Leather cases. In Ave-
nues in Leather, Inc. v. United States, 178 F.3d 1241 (Fed.
Cir. 1999) (“Avenues I”), we affirmed a Court of Interna-
tional Trade determination that “leather ‘folios’ . . . used
to store, organize, and carry papers, books, pens, pencils,
and the like” should be classified under HTSUS subhead-
ing 4202.11.00 rather than subheading 4820.10.20. Id. at
1242, 1244-45. We found, under an ejusdem generis
analysis, that the unifying purpose of goods under head-
ing 4202 was “organizing, storing, protecting, and carry-
ing various items.” Id. at 1244-45. In Avenues in Leather,
Inc. v. United States, 317 F.3d 1399 (Fed. Cir. 2003)
(“Avenues II”), the issue on appeal involved the classifica-
tion of Calcu-Folios—binders with zippered sides contain-
ing a calculator and three ring binder—and, specifically,
whether they should be classified under subheading
4202.12.20 or 4820.30.00. Id. at 1401-02. The Court of
International Trade found the Calcu-Folios to be “sub-
stantially similar” to the folios of Avenues I, and held that
it was bound by Avenues I through stare decisis. Id. at
1402.
    On appeal, we held that the Court of International
Trade had confounded concepts of claim and issue preclu-
sion—which do not apply in classification cases under
Stone & Downer—and stare decisis. Id. By concluding
that no new issue of law was raised in Avenues II solely
because the products were “substantially similar” to the
products at issue in Avenues I, the Court of International
Trade actually applied collateral estoppel—or, more
accurately, issue preclusion—principles, rather than
honoring stare decisis. Id. at 1404. The Avenues II panel
explained that the legal issue on appeal in Avenues II
involved the construction of subheading 4820.30.00. Id.
at 1403-04. In Avenues I, the panel construed heading
DECKERS CORPORATION   v. US                               17



4202. Therefore, Avenues I did not involve any determi-
nations of law regarding subheading 4820.30.00 that
could be binding on the panel in Avenues II. Id. In addi-
tion, we noted that the merchandise at issue in Avenues II
was different from the merchandise in Avenues I. Id. On
remand, the Court of International Trade held that the
Calcu-Folios should be classified under subheading
4820.10.2020 because the folios did not share the essen-
tial characteristics of Heading 4202, the heading at issue
in Avenues I. Avenues III, 423 F.3d at 1329-30. On
appeal, we affirmed and held that Avenues I is only bind-
ing with respect to its legal determination of the “common
characteristics” identified for heading 4202. Id. at 1331.
Avenues I did not bind the Court of International Trade
regarding how the specific Calcu-Folios should be classi-
fied, which is an issue of fact. Id. In the Avenues in
Leather series of cases, we explained that: (1) a prior legal
interpretation regarding construction of a specific HTSUS
provision can be binding on the Court of International
Trade or later panels; but that (2) interpretation of a
different subheading creates a different legal issue, pre-
cluding application of stare decisis.
    Here, Deckers seeks an interpretation of the “training
shoes” exemplar under subheading 6404.11. This is the
same subheading interpreted in Deckers I. Though we
used an ejusdem generis analysis in Deckers I, we held
that “[t]he evidence adduced at trial established that the
fundamental feature that the exemplars share is the
design, specifically the enclosed upper . . . .” Deckers I,
532 F.3d at 1317 (emphasis added). In our ejusdem
generis analysis, we looked to each of the listed exemplars
in determining the shared characteristic in subheading
6404.11. We stated, moreover, that, for the reasons
expressed in the ejusdem generis analysis, the sandals at
issue were “not the kind of shoes to which subheading
6404.11.80 refers.” Id. at 1318. Therefore, because
Deckers I and the present appeal involve the same legal
18                               DECKERS CORPORATION    v. US



issue—construction of subheading 6404.11—any legal
conclusion regarding the scope of that heading in Deckers
I presumptively applies.
        CLEAR ERROR EXCEPTION TO STARE DECISIS
    Deckers I provides a binding construction of subhead-
ing 6404.11 such that any merchandise classified into
that subheading must include “enclosed uppers.” Deckers
I, 532 F.3d at 1316-17. Since it is uncontroverted that the
Sports Sandals do not have enclosed uppers, the Court of
International Trade correctly held that the Sports San-
dals cannot be classified into subheading 6404.11 and,
thus, should be classified into subheading 6404.19.35.
Deckers claims, however, that, even if the conclusions in
Deckers I presumptively control, both the Court of Inter-
national Trade and this panel may revisit Deckers I and
reject it if we find it to have been clearly erroneous—
which Deckers says it was. Deckers points to our opinion
in Schott Optical, asserting that we there recognized a
“clear error” exception to stare decisis. In particular,
Deckers argues that the Court of International Trade
erred by not considering new evidence presented by
Deckers showing that the Deckers I panel committed clear
error in its construction of subheading 6404.11, as it was
required to do under Schott Optical. We disagree. Deck-
ers reads too much into Schott Optical.
                             1
    In this Circuit, a later panel is bound by the determi-
nations of a prior panel, unless relieved of that obligation
by an en banc order of the court or a decision of the Su-
preme Court. We thus must determine what Schott
Optical held and whether it governs our resolution of this
appeal. We begin by considering the legal landscape
leading up to the decision in Schott Optical.
    Prior to 1890, the federal district courts located at lo-
cal ports of entry handled all litigation regarding duties
DECKERS CORPORATION   v. US                             19



on imports. Giles S. Rich, A Brief History of the United
States Court of Customs and Patent Appeals 6 (1980).
The district courts, however, were not consistent in their
construction of tariff provisions. In response, Congress
created the nine-member Board of General Appraisers in
1890, which would eventually become the United States
Customs Court and, later, the Court of International
Trade. McKinley Tariff Administrative Act of 1890, § 12,
26 Stat. 131, 136. Decisions of the Board of General
Appraisers could be appealed to the Circuit Courts of
Appeals—once they were created in 1891—and, thereaf-
ter, to the United States Supreme Court. Rich, supra, at
6-7. In 1909, however, Congress removed tariff interpre-
tations from the purview of the federal courts, including
the Supreme Court, by creating the United States Court
of Customs Appeals. 7 Act of August 5, 1909, § 29, 36 Stat.
11, 105. The decisions of the Court of Customs Appeals,
which always sat en banc, were not reviewable by any
Article III courts, neither the Circuit Courts of Appeals,
nor the Supreme Court. Id. The Court of Customs Ap-
peals was thus the court of last resort for classification
determinations.
    Between 1909 and 1914, the Court of Customs Ap-
peals recognized the importance of principles of stare
decisis, stating that, “where a question has been well
considered and deliberately determined in one court,
another court of coordinate jurisdiction at least is not at
liberty to disturb or unsettle the law of the first case,
unless impelled thereto by the most cogent reasons.”
United States v. Schwartz & Co., 3 U.S. Cust. App. 24, 51



   7    The Court of Customs Appeals was not considered
to be an Article III court, Ex parte Bakelite Corp., 279
U.S. 438, 460 (1929), until Congress declared the Court to
be an Article III court in 1958. Act of August 25, 1958, §
1, 72 Stat. 848, 848.
20                              DECKERS CORPORATION    v. US



(Ct. Cust. App. 1912); see also Perry, Ryer & Co. v. United
States, 2 U.S. Cust. App. 374, 380 (Ct. Cust. App. 1911).
Thus, it was Court of Customs Appeals’ practice to follow
its own prior precedents, where applicable. Because the
Court of Customs Appeals was a court of last resort,
however, it understood that it could not be inflexibly
bound by its prior holdings and had to allow for some
ability to overturn prior erroneous holdings. United
States v. Bauer, 3 U.S. Cust. App. 343, 344 (Ct. Cust. App.
1912) (“Under the doctrine of stare decisis we should
proceed with caution in disturbing conclusions which were
deliberately reached upon full argument. This rule does
not preclude our examination of new questions, nor
should we go to the length of reaffirming an erroneous
position when firmly convinced that we are in error.”); see
also United States v. Lun Chong & Co., 3 U.S. Cust. App.
468, 469 (Ct. Cust. App. 1912) (holding that it is inappro-
priate to apply “stare decisis” or allow the record of a
former case to be used in a pending case, as permitted
under then-existing court rules, where the government
failed to demonstrate factual similarity between the prior
decision and pending appeal).
    In 1914, Congress granted the Supreme Court limited
appellate review of the decisions of the Court of Customs
Appeals where construction of the Constitution or any
treaties were drawn into question, or where the Attorney
General decided that the case was of such importance as
to require Supreme Court review. Act of August 22, 38
Stat. 703, 703 (1914). Even with limited Supreme Court
review available, the Court of Customs Appeals continued
to apply stare decisis to its prior holdings, except where
convinced it had committed clear error in a prior decision.
See, e.g., United States v. Mills & Gibbs, 8 U.S. Cust. App.
422, 428 (Ct. Cust. App. 1918) (“The doctrine of stare
decisis is invoked by the importers, and our decision
might well have been rested thereon, but partly because
of the unquestioned sincere belief of the [petitioner] that
DECKERS CORPORATION     v. US                                 21



we have committed error and also because if so we desire
to correct it, we have carefully considered the whole
subject matter.”).
    In 1926, Congress replaced the Board of General Ap-
praisers with the U.S. Customs Court, which retained the
jurisdiction and powers of the Board. Act of May 28,
1926, ch. 411, 44 Stat. 669. As with appeals from the
Board, appeals from the Customs Court went to the Court
of Customs Appeals.
                                2
     In 1927, the Supreme Court in Stone & Downer at-
tempted to clarify the review process for classification
determinations. The Supreme Court upheld the Court of
Customs Appeals’ practice that the “general principle of
res judicata should have only limited application to [Court
of Customs Appeals] judgments.” 8 Stone & Downer, 274
U.S. at 236. The Court justified its holding on two inde-



    8      The Supreme Court, in Stone & Downer, used the
phrase “res judicata” in discussing preclusion in the
Customs classification context. Based on the examples
the Court provided, however, it appears that, in modern
parlance, the Court was referring to issue preclusion. Id.
at 236-37. We have referred to Stone & Downer as vari-
ously limiting either res judicata, Schott Optical, 750 F.2d
at 64 (“Under Stone & Downer, the doctrine of res judica-
ta . . . would not bar Schott from relitigating either the
meaning of ‘optical glass’ or the classification of its filters .
. . .”), or collateral estoppel, Avenues III, 423 F.3d at 1330
(“It is well settled that collateral estoppel does not pre-
vent an importer from successive litigation over the
classification of merchandise, even when the subsequent
importations involve the ‘same issue of fact and the same
question of law.’” (quoting Stone & Downer, 274 U.S. at
234)).
22                                DECKERS CORPORATION    v. US



pendent grounds. First, it noted that the Court of Cus-
toms Appeals had not been subject to any appellate re-
view for its first five years, and was only subject to limited
appellate review after that point. Id. at 233-35. And, it
pointed out that the Board of General Appraisers had
adopted the practice of allowing the record and testimony
of prior classification determinations to be entered in
later, related decisions under Rule 22 of its Rules of
Procedure and Practice. Id. at 234-35. The Court held
that, “objection to the[se] practice[s] has never been made
before,” which represents “strong evidence not only of the
wisdom of the practice but of general acquiescence in its
validity.” Id. at 237. Second, the Court grounded its
decision on policy considerations. If an earlier importer
receives a favorable classification construction, but a later
importer receives a less-favorable construction for essen-
tially the same merchandise, the government should be
able to challenge that earlier construction and the early
importer should not receive a competitive advantage due
solely to the timing of the importation. Id. at 236. These,
the Court stated, “were doubtless the reasons which
actuated the Court of Customs Appeals when the question
was first presented to it to hold that the general principle
of res judicata should have only limited application to its
judgments.” Id.
     The Stone & Downer opinion did not discuss stare de-
cisis, however, or even address the binding role of prior
legal determinations on later Court of Customs Appeals
decisions. It also did not upset the general approach of
the Court of Customs Appeals to stare decisis in classifica-
tion cases—while an importer may relitigate factual
issues unique to a new importation, it is still bound by
prior legal constructions of the Court of Customs Appeals,
unless the Court of Customs Appeals found its own prior
construction to be clearly erroneous.
DECKERS CORPORATION   v. US                               23



                              3
     On March 2, 1929, Congress renamed the Court of
Customs Appeals the United States Court of Customs and
Patent Appeals (“CCPA”) and transferred jurisdiction
over appeals from the Patent Office from the Court of
Appeals for the District of Columbia to the new CCPA.
Act of March 2, 1929, §§ 1, 2, 45 Stat. 1475, 1475-76.
Importantly, the five-judge CCPA, like its predecessor,
always sat en banc as a five-judge panel. Celestaire, Inc.
v. United States, 120 F.3d 1232, 1235 (Fed. Cir. 1997)
(“[T]he Court of Customs and Patent Appeals always sat
in [sic] banc and therefore later decisions overcome earlier
inconsistent ones.”).
     The CCPA largely continued the Court of Customs
Appeals’ approach to stare decisis. The CCPA held that
the construction of a tariff provision by the CCPA creates
binding precedent under stare decisis. United States v.
F.M. Jabara & Bros., 19 C.C.P.A. 76, 78 (1931); United
States v. Decorative Novelty Co., 17 C.C.P.A. 211, 212
(1929). The CCPA also continued the Court of Customs
Appeals’ practice of reviewing a prior CCPA tariff inter-
pretation for clear error, as the CCPA was also the court
of last resort aside from permissive Supreme Court review
through certiorari. United States v. Consol. Kan. City
Smelting & Ref. Co., 18 C.C.P.A. 346, 348 (1931). Im-
portantly, the CCPA held that the clear error exception to
stare decisis only allowed a court to reject a prior decision
of a coordinate court regarding an issue of law if the court
believed there was clear error in that prior decision.
Raphael v. United States, 23 C.C.P.A. 253, 258 (1936). 9



    9    For example, the CCPA found that stare decisis
did not prohibit reconsideration of legal issues where that
issue was not fully presented in a prior case and is con-
trolling. See, e.g., Shell E. Petroleum Products v. United
24                              DECKERS CORPORATION    v. US



    While early CCPA decisions outlined the general con-
cept of the clear error exception to stare decisis, starting
with Adolphe Hurst & Co, Inc. v. United States, 33
C.C.P.A. 96 (1946), the CCPA began to clarify its ap-
proach to stare decisis in classification determinations. In
Adolphe Hurst, the CCPA held that the trial court
“properly relied upon our decision” in a prior case and was
bound to the opinions of the appellate court by stare
decisis, but that the CCPA could review its own prior
decisions and overrule those decisions upon a showing of
error. Id. at 101. The CCPA subsequently explained that
judicial decisions “must be understood in . . . context” and
should “not . . . be expanded to embrace . . . a factual
situation other than, different from, and contrary to, the
facts of the case to which the language applies and is
used.” United States v. R.J. Saunders & Co., 42 C.C.P.A.
128, 136 (1955).
    The CCPA’s opinion in United States v. Mercantil Dis-
tribuidora, S.A., 45 C.C.P.A. 20 (1957) (Rich, J.) (“Mer-
cantil II”), contains one of the clearest discussions of the
CCPA’s approach to stare decisis in classification cases.
The CCPA initially affirmed, in Mercantil I, the Customs
Court’s classification of prepared beef. Id. at 20-21. In a
later action, the government attempted to reargue the
same issues presented in Mercantil I, but also supple-
mented the record with two exhibits that had not previ-
ously been considered. Id. The Customs Court held that



States, 28 C.C.P.A. 155, 157 (1940) (finding that stare
decisis did not apply because the record in the second
appeal presented new evidence such that the issues were
“explained with a clarity that presents an entirely differ-
ent view of the issue”); Frank P. Dow Co. v. United States,
21 C.C.P.A. 282, 289-90 (1933) (finding clear error where
directly applicable legislative history was not presented in
the first appeal).
DECKERS CORPORATION    v. US                                25



Mercantil I “is stare decisis of this litigation.” Id. at 23.
The CCPA affirmed that decision. Id. at 27. In doing so,
the CCPA stated that “[t]he public policy of putting an
end to litigation and of not reopening questions which
have been decided is a sound one, subject only to the
qualification that clear error should not be perpetuated.”
Id. at 23-24 (emphasis in original). The CCPA also de-
scribed the appropriate standard it would apply in revisit-
ing its past classifications—“sound policy dictates that
prior decisions shall stand until the court is convinced
they are wrong.” Id. at 24 (emphasis in original).
    After Mercantil II, the CCPA’s approach to stare deci-
sis in classification cases became fairly established and
consistent. The CCPA continued to state that “it is not
the province of a lower court to set aside the ruling of an
appellate court,” so the Customs Court would appropriate-
ly dismiss cases that challenged established tariff con-
structions on stare decisis grounds. R.J. Saunders & Co.
v. United States, 45 C.C.P.A. 87, 89 (1958); cf. B. Axelrod
& Co. v. United States, 70 Cust. Ct. 117, 123-24 (1973)
(invoking the clear error doctrine and declining to follow a
prior, unappealed decision of the Customs Court). The
CCPA, sitting (as it always did) as an en banc court when
reviewing decisions of the Customs Court, could review its
prior classification constructions, but would only disre-
gard stare decisis after a convincing showing of clear
error. See, e.g., United Merchs., Inc. v. United States, 468
F.2d 208, 210 (C.C.P.A. 1972) (“A readjudication of issues
previously determined demands a clear and convincing
showing of error, a requirement not satisfied by reargu-
ment of the former issues on the same record.”); Manca,
Inc. v. United States, 47 C.C.P.A. 103, 105 (1960) (“On
principles of stare decisis [our prior holding] is controlling,
as held below, unless the importer can show that the
decision was clearly erroneous or that the imported mer-
chandise here involved is not the same in kind.”); J.
Eisenberg, Inc. v. United States, 46 C.C.P.A. 11, 14 (1958);
26                               DECKERS CORPORATION    v. US



United States v. Charles H Demarest, Inc., 45 C.C.P.A.
109, 111 (1958).
    The CCPA cases Deckers relies upon in arguing that
both this panel and the Court of International Trade
should entertain a clear error review of Deckers I, such as
United States v. Dodge & Olcott, Inc., 47 C.C.P.A. 100
(1960), or H.W. Robinson Air Freight Corp. v. United
States, 48 C.C.P.A. 148 (1961), are themselves consistent
with prior CCPA practice. In Dodge & Olcott, the CCPA
noted that it is “unfair both to the courts and to the
parties” to relitigate issues previously determined “except
upon a clear and convincing showing of error.” Dodge &
Olcott, 47 C.C.P.A. at 103. This standard is not satisfied
by “reargument of the former issues on the same or a
merely cumulative record.” Id. In H.W. Robinson, the
CCPA first held that the Customs Court correctly deter-
mined that a prior CCPA opinion was controlling. H.W.
Robinson, 48 C.C.P.A. at 150. The CCPA then concluded,
however, that its prior opinion was “bereft of its rationale,
and contra to strong indicia of Congressional intent as
found in the statutory language and the legislative histo-
ry.” Id. at 151. Because there was clear evidence that the
prior construction of the operative provision was incon-
sistent with Congressional intent, the en banc CCPA
invoked the clear error doctrine and declined to apply
stare decisis to its own prior en banc decision. Id. at 151-
52. H.W. Robinson demonstrated just how substantial a
hurdle the party challenging a prior CCPA holding
faced—the party had to show that the prior CCPA inter-
pretation was clearly inconsistent with evidence of plain
language or Congressional intent. 10



     10 Even in some of the last decisions of the CCPA,
prior to formation of the Federal Circuit, the CCPA main-
tained a limited scope of clear error review. See United
States v. Elbe Prods. Corp., 655 F.2d 1107, 1109-10
DECKERS CORPORATION    v. US                               27



                               4
    On April 2, 1982, Congress created the Federal Cir-
cuit by merging the CCPA and the United States Court of
Claims. Federal Courts Improvement Act of 1982, 96
Stat. 25. In our first published opinion, sitting en banc,
we adopted the case law of the CCPA as our binding
precedent. South Corp. v United States, 690 F.2d 1368,
1369 (Fed. Cir. 1982) (en banc). “[T]he Court of Customs
and Patent Appeals always sat in [sic] banc” and, there-
fore, the most recent decision of the CCPA controls as
precedent over prior inconsistent decisions. Celestaire,
120 F.3d at 1235. We have also adopted the rule that a
panel of this court—which normally sits in panels of
three, and not en banc—is bound by the precedential
decisions of prior panels unless and until overruled by an
intervening Supreme Court or en banc decision. Robert
Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1316 (Fed.
Cir. 2013) (en banc); UMC Elecs. Co. v. United States, 816
F.2d 647, 652 n.6 (Fed. Cir. 1987); Kimberly-Clark Corp.
v. Fort Howard Paper Co., 772 F.2d 860, 863 (Fed. Cir.
1985); Mother's Rest., Inc. v. Mama's Pizza, Inc., 723 F.2d
1566, 1573 (Fed. Cir. 1983). Thus, we as a panel are
bound by prior CCPA decisions unless and until those
CCPA decisions are overturned en banc or through Su-
preme Court intervention, just as we are bound by other
panel decisions of this court.
     We first substantively analyzed the role of stare deci-
sis in classification cases in Schott Optical Glass, Inc. v.
United States, 750 F.2d 62 (Fed. Cir. 1984). In Schott


(C.C.P.A. 1981); Dep’t of Energy v. Westland, 565 F.2d
685, 689-90 (C.C.P.A. 1977) (“The position of this court on
the role of stare decisis is clear and consistent with that of
the other appellate courts. A readjudication of issues
previously determined demands a clear and convincing
showing of error.”).
28                               DECKERS CORPORATION    v. US



Optical, the importer challenged the classification of filter
glass used in instruments such as spectrophotometers.
Id. at 63-64. In a first appeal, the Customs Court and the
CCPA held that the term “optical glass” did not include an
additional requirement involving the refractive index of
the glass. 11 Schott Optical Glass, Inc. v. United States,
468 F. Supp. 1318, 1323-25 (Cust. Ct. 1979), aff’d, 612
F.2d 1283 (C.C.P.A. 1979). Schott Optical then chal-
lenged the prior CCPA determination before the Court of
International Trade in the context of a subsequent impor-
tation. That court held, however, that it was bound to the
interpretation of “optical glass” previously established by
the CCPA. Schott Optical Glass, Inc. v. United States,
587 F. Supp. 69, 70-71 (Ct. Int’l Trade 1984). The Court
of International Trade also excluded all evidence which
Schott Optical introduced relating to the meaning of
“optical glass.” Id. On appeal, we first recognized that, as
established in Stone & Downer, there is no res judicata
bar to classification challenges in a later importation of
the same merchandise by the same parties. Schott Opti-
cal, 750 F.2d at 64 (“[T]he Supreme Court held that in
customs classification cases a determination of fact or law
with respect to one importation is not res judicata as to
another importation of the same merchandise by the same
parties. The opportunity to relitigate applies to questions
of construction of the classifying statute as well as to
questions of fact as to the merchandise.”). We recognized,
however, that the holding of Stone & Downer did not
address principles of stare decisis, citing to Mercantil II.
Id. We then held that, because the binding effect of a
prior classification can be overcome by a showing of clear
error, the Court of International Trade should have
permitted the challenging party to introduce evidence of


     11As noted above, subsequently, the Customs Court
became the U.S. Court of International Trade. Customs
Courts Act of 1980, Pub. L. No. 96-417, 94 Stat. 1727.
DECKERS CORPORATION   v. US                              29



“clear error” in that court so it could urge a contrary
result. Specifically, we said that “[a] court will reexamine
and overrule a prior decision that was clearly erroneous.”
Schott Optical, 750 F.2d at 64 (citing H.W. Robinson and
Adolphe Hurst).
    Importantly, H.W. Robinson and Adolphe Hurst, the
cases upon which Schott Optical relied, involved an en
banc CCPA overruling a prior en banc CCPA decision.
When considered in the historical context of our predeces-
sor court, Schott Optical is consistent with our current
approach to stare decisis for en banc opinions, where the
most recent en banc decision on a specific matter over-
rules prior en banc decisions. Doe v. United States, 372
F.3d 1347, 1355 (Fed. Cir. 2004). If taken out of this
context, as Deckers suggests, Schott Optical would be
inconsistent with our approach to stare decisis among
panel decisions, where we are bound by prior panel deci-
sions until they are overruled by the court en banc or the
Supreme Court. Robert Bosch, LLC, 719 F.3d at 1316.
     Schott Optical’s reliance on John C. Rogers & Co. v.
United States, 63 C.C.P.A. 10 (1975), Dodge & Olcott, Inc.,
Mercantil II, and Adolphe Hurst, when stating that “[i]n a
number of cases . . . parties were permitted to relitigate
the common meaning of tariff terms, with or without
introduction of new evidence,” supports the conclusion
that the holding there is narrower than Deckers claims.
Schott Optical, 750 F.2d at 65. Again, the cited cases all
involved an en banc CCPA analyzing new evidence in
reviewing a prior en banc CCPA opinion. In John C.
Rogers & Co., Dodge & Olcott, and Mercantil II, the CCPA
failed to find clear error in prior CCPA opinions, even
though the en banc CCPA considered new evidence in the
respective subsequent appeals. Finally, Adolphe Hurst
held that it was proper for the trial court to dismiss a
classification case on stare decisis grounds without clear
error review if a prior appellate court opinion construed
the term at issue. Adolphe Hurst, 33 C.C.P.A. at 101.
30                               DECKERS CORPORATION    v. US



While there is some dictum in Schott Optical which
implies that conclusions regarding the continuing validity
of a prior appellate decision can be made by the trial
court, or a subsequent panel of this court, we do not read
Schott Optical that way. At most, opinions expressed by
the Court of International Trade or a subsequent panel
regarding an earlier Federal Circuit panel decision would
constitute invitations to the en banc court to revisit the
legal issue raised. 12 The panel in Schott Optical had no
authority to go further—it could not have overruled our
decision in Mother’s Restaurant. If it intended to do so,
moreover, we would be bound to ignore it. Newell Cos.,
Inc. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988)
(“This court has adopted the rule that prior decisions of a
panel of the court are binding precedent on subsequent
panels unless and until overturned in [sic] banc. Where
there is a direct conflict, the precedential decision is the
first.” (internal citations omitted)); see also Johnston v.
IVAC Corp., 885 F.2d 1574, 1579 (Fed. Cir. 1989) (“Where
conflicting statements such as these appear in our prece-
dent, the panel is obligated to review the cases and recon-
cile or explain the statements, if possible.         If not
reconcilable and if not merely conflicting dicta, the panel
is obligated to follow the earlier case law which is the
binding precedent.”).
    We therefore hold that, while a party may challenge a
prior construction of a tariff provision by a panel of this
court in a classification case and may seek to introduce
evidence of purported clear error in the prior classification



     12 See Schott Optical, 750 F.2d at 65 (“We cannot say
whether [the new evidence], when added to the evidence
in the prior case and subjected to cross-examination when
testimonial, would cause either the Court of International
Trade or this court on appeal to conclude that the prior
decision was clearly erroneous.”).
DECKERS CORPORATION   v. US                              31



to preserve the issue for potential en banc review, both
the Court of International Trade and any subsequent
panel of this court are bound by the earlier panel’s classi-
fication construction. It is only as an en banc court that
we can review and alter a tariff classification construction
by a prior panel. This approach is consistent with our
treatment of stare decisis in other areas of law and is
consistent with the approach of our predecessor court, the
CCPA.
                              5
     After considering our historical approach to stare de-
cisis in Customs classification cases, including that of our
predecessor courts, we hold that the construction of a
Customs classification provision by a panel of this court is
binding upon both the Court of International Trade and
subsequent panels of this court in later protest cases
involving the same subheading or heading. While, in line
with Stone & Downer, an importer may seek permission
to introduce evidence in the Court of International Trade
of clear error in a prior Customs ruling, see Stone &
Downer, 274 U.S. at 236 (noting the Court of Customs
Appeals’ holding that “the general principle of res judicata
should have only limited application to its judgments.”
(emphasis added)), the trial court and this court are
constrained by stare decisis to reach the same legal con-
clusions as were reached by a panel of this court. Only
through an en banc opinion, intervening Supreme Court
precedent, or a change in the underlying statute by Con-
gress can we deviate from our prior construction through
a showing of clear error. Of course, our holding does not
prevent an importer or the government from arguing, or
the Court of International Trade or a later panel of this
court from concluding, that a different governing legal
issue is involved in the later appeal, such that stare
decisis is not implicated—as was true in Avenues II—or
that the imported merchandise is materially different
32                             DECKERS CORPORATION   v. US



from the merchandise in the earlier case—as we found in
Avenues II and Avenues III.
    We therefore affirm the holding of the Court of Inter-
national Trade granting the government’s motion for
summary judgment. In Deckers I, we construed subhead-
ing 6404.11. We are bound by that panel’s interpretation
of subheading 6404.11, as the Court of International
Trade held below. Because all of the Sports Sandals at
issue in the present appeal indisputably do not have
“enclosed uppers,” the Court of International Trade
correctly determined that the Sport Sandals could not be
classified under subheading 6404.11.80 or 6404.11.90. If
Deckers seeks to overturn the Deckers I court’s construc-
tion of subheading 6404.11, it will need to seek review en
banc.
                      CONCLUSION
    Because Deckers presents the same issue of law that
was before this court in Deckers I, both the Court of
International Trade and this panel are bound by the
Deckers I construction of subheading 6404.11 under
principles of stare decisis. Accordingly, we affirm the
decision of the Court of International Trade granting the
government’s motion for summary judgment.
                      AFFIRMED
