                                 Slip Op. 19 - 18

               UNITED STATES COURT OF INTERNATIONAL TRADE

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DECKERS CORPORATION,                          :

                                 Plaintiff, :
                                                    Consolidated
                  v.                          :     Court No. 02-00730

THE UNITED STATES,                            :

                                 Defendant. :

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                               Memorandum & Order

[Upon classification of additional Teva® footwear,
 summary judgment for the defendant.]

                                                    Decided: February 4, 2019

     Patrick    D.     Gill,   Rode   &   Qualey,    New   York,   NY,   for   the
plaintiff.

     Marcella Powell, Trial Attorney, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice, of New York, NY;
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Amy M. Rubin, Assistant Director, and Michael Heydrich, Office of
Assistant Chief Counsel, International Trade Litigation, U.S.
Customs and Border Protection, of counsel, for the defendant.


          AQUILINO, Senior Judge:             The above-named, determined

plaintiff seeks yet again in this duly-certified test case to

rectify errors it believes have occurred in prior decisions of this

court and its court of appeals all sub nom. Deckers Corp. v. United

States, 29 CIT 1481, 414 F.Supp.2d 1252 (2005); 31 CIT 1367, aff’d,

532 F.3d 1312 (Fed.Cir. 2008)(“Deckers I”); and 37 CIT ____ (2013),
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Court No. 02-00730


aff’d, 752 F.3d 949 (Fed.Cir. 2014), reh’g en banc denied (July 9,

2014)(“Deckers II”).    The crux of plaintiff’s continuing complaint

is U.S. Customs Service classification of its Teva® sandals under

HTSUS subheading 6404.19.35 (2001), to wit

     6404         Footwear with outer soles of rubber, plastics,
                  leather or composition leather and uppers of
                  textile materials:

                    Footwear with outer soles of rubber or plastics:

     6404.19           Other:

                          Footwear with open toes or open heels;...

     6404.19.35             Other:........

in lieu of its preferred subheading

     6404.11     Sports footwear; tennis shoes, basketball shoes,
                 gym shoes, training shoes and the like[.]


            In depicting an image of plaintiff’s sandals at issue in

slip opinion 05-159, 29 CIT at 1486, 414 F.Supp.2d at 1256, this

court came to conclude that the defendant’s motion for summary

judgment could not be granted, whereupon a full and fair trial of

the matter ensued in a courthouse of the U.S. District Court for

the Middle District of California.    While plaintiff’s presentment

there was most impressive as a matter of fact, it did not prevail

as a matter of law, as reported in Deckers I, supra.
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           The matter of classification of other Teva® styles having

been suspended under that test case, the plaintiff removed a number

from the CIT suspension calendar to constitute a second test case,

which became Deckers II, albeit with the same litigated result as

the initial action.

                                     I

           Not content with those decisions, and given its right per

United States v. Stone & Downer Co., 274 U.S. 225, 235-26 (1927),

still other docketed Teva® styles now constitute the foundation of

this third test case sub nom.        Pretty Rugged, Trail Raptor, Road

Raptor, Vector, Terra Fi, Universal Approach, and Universal Guide.


           Whatever   their   names      and   stylistic   nuances1,   the

defendant has reacted with another motion for summary judgment,

which plaintiff’s persistent counsel in a submission dated January

17, 2019 demands “must be resolved before, and if, this case goes

to trial.” Jurisdiction continues pursuant to 28 U.S.C. §§ 1581(a)

and 2631(a).

                                     A

           The   parties’   papers    filed    herein   indicate   certain

disagreement over the extent which the articles’ toes and/or heels


       1
            Plaintiff’s position is that its two Raptors are
“running shoes” and that the other named styles are “training
shoes”. See complaint, paras. 13 and 14.
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Court No. 02-00730


are “open” and also disagreement over the extent to which toes

and/or heels and/or feet are “enclosed” and “secured”, but the

salient   points   of   agreement   suffice    for   purposes    of   summary

judgment.


             The plaintiff commenced this action to press its position

of clear error in Deckers I and Deckers II in the hope of en banc

review by the Federal Circuit. It argues such error lies in that

court’s ejusdem generis analysis of the subheading 6404.11, supra,

in Deckers I and that the error has been perpetuated in Deckers II.

The plaintiff further argues that a trial is necessary because it

“seeks to present evidence that will establish clear error in both

the factual and legal conclusion in Deckers I and Deckers II” and

that, “[i]f the motion for summary judgment is now granted, Deckers

would   be   denied   the   opportunity   to   present   its    evidence   to

establish clear error in the prior decision that no footwear can be

classified in tariff subheading 6404.11 unless that footwear has a

fully enclosed upper”.        Summarizing, plaintiff’s opposition to

defendant’s motion for summary judgment is that the motion is

premature because there are outstanding motions to compel discovery

filed by both parties.
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Court No. 02-00730


          In particular, the plaintiff would compel the defendant

to expand on the statement of the government’s expert witness in

Deckers II that “some training shoes have openings in the uppers

and are used for training shoes” and to identify evidence that the

common and commercial meaning of “training shoes” requires in all

cases that training shoes must have enclosed uppers.   Plaintiff’s

posture does not, however, excuse it with respect to its own lack

of response to defendant’s motion to compel, pursuant to which the

latter seeks elaboration of “all facts” that support allegations in

the complaint that the imported merchandise is athletic footwear

(running shoes and training shoes), that they are used as such,

that it is “understood” in the footwear trade and by users of

training shoes that certain types can and do have openings in their

uppers, and that open uppers on training shoes are no bar to their

use as such, and also seeking discovery of any plaintiff witness.


          By rule, a party opposing summary judgment because “it

cannot present facts essential to justify its opposition” can ask

the court to defer consideration of or to deny the motion while it

conducts additional discovery. USCIT Rule 56(d); Baron Services,

Inc. v. Media Weather Innovations LLC, 717 F.3d 907 (Fed.Cir.

2013). The party requesting relief pursuant to that rule must

“state with some precision the materials he hope[s] to obtain with
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Court No. 02-00730


further discovery, and exactly how he expect[s] those materials

would help him in opposing summary judgment.” Simmons Oil Corp. v.

Tesoro        Petroleum    Corp.,   86   F.3d   1138,   1144   (Fed.Cir.    1996)

(addressing parallel Rule 56(d) of the Federal Rules of Civil

Procedure and quoting Krim v. BancTexas Group, Inc., 989 F.2d 1435,

1143 (5th Cir. 1993)).         Failure to comply with that rule can result

in denial of the request and an adverse decision on summary

judgment. See, e.g., Kallal v. CIBA Vision Corp., 779 F.3d 443, 447

(7th Cir. 2015).


                In the significant length of time purposely afforded this

third test case to lie fallow following submission of defendant’s

reply brief in support of its motion for summary judgment, the

plaintiff has not submitted anything to supplement its position,

and it has not identified any fact witness in support of its

“additional” averments in its opposition to defendant’s motion for

summary        judgment.    Plaintiff’s     sole   witness     supporting    that

opposition is its purported expert, Dr. Geoffrey Gray.2                 But, he


          2
          The defendant notes that it would move to preclude Dr.
Gray under Federal Rule of Evidence 702 and Daubert v. Merrill Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), on the ground that the
testing he performed was not based on reliable scientific
principles and methods and therefore its results did not have
indicia of accuracy:
                                                    (continued...)
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cannot shed much light on the meaning of subheading 6404.11, supra,

as he only tested one style of sandal at issue using a proprietary

protocol or testing method that has never been subject to peer

review.       See Def’s Ex. 8 (“Gray Dep.”) at 27:16-28:9.     Dr. Gray did

not (and could not) attribute his test results to the remaining

styles at issue. “Conclusory expert assertions cannot raise issues

of material fact on summary judgment.”        Strick v. Dreamworks, LLC,

516 F.3d 993, 1001 (Fed.Cir. 2008).        Moreover, Dr. Gray appears to

have cast doubt on the reliability of those test results when he

acknowledged that one test of one sample did not yield results that

were    adequately     accurate   for   inclusion   in   his   database   as

representative of a training shoe. See Def’s Ex. 8 at 40:14-41:21.



          2
            (...continued)
       We also intend to move to preclude Dr. Gray on the
       grounds that his opinion is irrelevant and inaccurate as
       applied to the sandals at issue. For example, in his
       report, Dr. Gray sets forth the criteria that he believes
       are inherent in training shoes such as stability in the
       sagittal plane (fore-aft movement). See Plaintiff’s
       Expert Report of Dr. Geoffrey Gray ¶10. The evidence in
       the Deckers I trial, however, established that there was
       insufficient restriction on the fore-aft movement of the
       foot.   During the trial, Deckers’ counsel asked Dr.
       Joseph Hamill, defendant’s fact witness, to don a Teva®
       sandal and kick a wall. When Dr. Hamill’s foot struck
       the wall, it slid off of the footbed of the sandal
       causing injury to his toe.

Def’s Reply at 9 n.4.
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Court No. 02-00730


            With regard to the timing of defendant’s summary judgment

motion, the plaintiff contends that the matters covered by its

motion to compel are critical to the way in which it would present

its case.     The plaintiff, however, has not made any effort to

comply with USCIT Rule 56(d), nor has it filed a motion seeking

relief under that rule.      Additionally, it      has not specified the

factual information it hopes to obtain through its motion to compel

and how that information would raise a genuine issue of fact that

would justify a trial. Plaintiff’s vague assertion that it needs

additional discovery is insufficient to establish that this action

is not now ripe for summary judgment.


            As similarly intimated in a case concerning “Ugg Boots”,

Deckers Corp. v. United States, 714 F.3d 1363 (Fed.Cir. 2013), the

plaintiff    herein   has   been    afforded   “ample   opportunity”,     via

opposition   to   defendant’s      summary   judgment   motion,   to   submit

evidence with respect to interpretation of the term “and the like”

in subheading 6404.11, HTSUS, and the operative language of that

provision in its opposition to the defendant’s summary judgment

motion.     The plaintiff in that case raised the same “need for

trial” argument before the Federal Circuit, which was rejected.

That is, the plaintiff therein asserted that the trial court had
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erred in classifying the imported boots as “footwear of the slip-on

type” under subheading 6404.19.35, HTSUS.    It argued, among other

things, that that court had improperly decided the issue on summary

judgment.   According to that plaintiff, a trial was necessary, as

it would have permitted testimony from industry witnesses.       The

court of appeals, however, affirmed the trial court’s decision in

all respects.


            In doing so, the Federal Circuit reasoned that “[t]here

were no genuine issues of material fact regarding the salient

characteristics” of the subject boots.      714 F.3d at 1371.    The

panel then held that the “resolution of the parties’ dispute

centered on the meaning of the term ‘footwear of the slip-on type,’

a question of statutory interpretation.” Id., citing Bausch & Lomb

v. United States, 148 F.3d 1363, 1365 (Fed.Cir. 1998). According to

the appellate decision, the plaintiff “had ample opportunity to

submit evidence regarding the common understanding of the term

‘footwear of the slip-on type’ when it submitted its opposition to

the government’s motion for summary judgment.”    Id. at 1372.   The

court noted that the plaintiff did not identify any purported

industry witnesses or offer any affidavits or declarations from

such witnesses when it was before the trial court.   Id.   “Deckers’
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Court No. 02-00730


unsupported assertion that unnamed industry witnesses would have

testified that the footwear industry does not consider a boot to be

a ‘slip-on’ is too speculative to raise any genuine issue of

material fact.”   Id.


          In a further effort to persuade that trial is necessary

herein, the plaintiff argues that if it is not permitted to present

evidence at trial, “the result would be to effectively nullify the

Supreme Court’s holding in Stone & Downer.”    The plaintiff reads

too much into that decision; it established the principle that

there is no bar to relitigation over the same merchandise by the

same parties, but it did not address whether relitgation is to be

disposed of by summary judgment or by trial.     The plaintiff is

permitted to relitigate the classification of its sandals in this

court, but in order to obtain trial it must come forward with a

genuine issue of material fact.


          Towards that end, the plaintiff asserts that trial is

necessary because in Deckers II the defendant’s expert witness

“declared under penalty of perjury” that “some training shoes have

openings in the uppers and are used as training shoes”.   “Openings

in the uppers”, however, do not, necessarily, mean “open uppers”,

and plaintiff’s attempt to portray Dr. Joseph Hamill’s statement as
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inconsistent          with        Deckers      I    and       Deckers      II    is    therefore

unpersuasive.          See, e.g., Def’s answer, para. 27 (Dr. Hamill’s

complete statement):

       Some training shoes have openings in the uppers and are
       used as training shoes if they have the characteristics
       appropriate for a training shoe. The Teva Sport Sandals
       do not qualify as such as previously described.

In    other    words,        as    the    defendant           contends,    shoes      that     have

“openings in the uppers” (e.g., small holes for breathability) can

be     used    as      training          shoes      provided        that      they    have      the

characteristics of such shoes, including an enclosed upper, and

this    court        concurs       that     Dr.         Hamill’s     statement        cannot     be

interpreted as inconsistent with Deckers I and Deckers II.


               The appropriate opportunity for the plaintiff to present

its      interpretation            of    the       HTSUS      provision     at    issue    is    in

opposition to defendant’s motion for summary judgment, not at

another       trial.         Plaintiff’s           motion      to    compel      discovery      can

therefore be, and it hereby is, denied, and defendant’s motion to

compel discovery is therefore hereby denied as moot.


                                                    B

               In affirming the judgment in Deckers II, the Federal

Circuit       held     that       construction           of    a    customs      classification
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provision by a panel of that court is binding upon both this court

and   other    circuit   panels   in   subsequent   classification   cases

involving the same heading or subheading.           752 F.3d at 966.    In

that case, the court of appeals made clear that stare decisis

governs the classification of the subject sandals.            “Deckers I

provides a binding construction of subheading 6404.11 such that any

merchandise classified into that subheading must include ‘enclosed

uppers.’”     752 F.3d at 959.    This court does not have the authority

to go beyond that binding legal interpretation in this case

unilaterally.       Id. at 966.     “Only through an en banc opinion,

intervening Supreme Court precedent, or a change in the underlying

statute by Congress can we deviate from our prior construction

through a showing of clear error.”        Id.   The Supreme Court has not

issued an intervening decision that implicates the issues in this

renewed test case, and Congress has not enacted any relevant

legislation.     Therefore, plaintiff’s only avenue for removing this

matter from the ambit of stare decisis is through proof of clear

error in this court to preserve the issue for potential en banc

review on appeal.


              The plaintiff argues that the ejusdem generis analysis of

subheading 6404.11 in Deckers I was clearly erroneous.         According
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to it, the scope of the term “and the like” in that subheading “may

be a legal determination” but “what those essential characteristics

are is a factual determination which must be made by the trial

court.”      It contends that this court did not make any factual

findings regarding the scope of that tariff term.         Based on that

proposition, it further contends that the appellate panel made an

improper factual finding when it held that the “‘evidence adduced

at   trial   established   that   the   fundamental   feature    that   the

exemplars share is the design, specifically the enclosed upper

. . . [emphasis in original].’” Pl’s Opp. at 5.           The plaintiff

concludes that the Federal Circuit improperly “substituted its own

factual findings for the factual findings of the trial court.” Id.


             Plaintiff’s argument seems to misconstrue the Federal

Circuit’s standard of review and the doctrine of ejusdem generis,

and its papers do not refer to any evidence that would demonstrate

that Deckers I and Deckers II are clearly erroneous.            Unlike the

record in Deckers I and Deckers II, the factual record here is

skeletal.      Plaintiffs’ sole identified witness is a purported

expert who only tested one style of sandal at issue and admitted

that the resultant data were not sufficiently accurate to include

in his company’s database. Additionally, the expert could not shed
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Court No. 02-00730


any light on the other named exemplars in subheading 6404.11,

HTSUS.


               Because there are no genuine issues of material fact

regarding the nature of the merchandise, this third, arguably

repetitive, test case re-presents a purely legal issue, namely,

interpretation of the operative language of subheadings 6404.11.80

and    6404.11.90     (“tennis    shoes,      basketball    shoes,      gym   shoes,

training shoes and the like”).            In Deckers I and Deckers II, the

issue    on     appeal     was   the    propriety     of    affirming     Customs’

classification of the subject sandals in subheading 6404.19.35,

HTSUS.     But, the meaning of a tariff provision is a question of

law, which the Federal Circuit reviews de novo. E.g., Lynteq, Inc.

v. United States, 976 F.2d 693, 696 (Fed.Cir. 1992).                 No deference

is accorded to this court’s decisions on appeal regarding the

proper scope of a tariff provision.             Id.


               Under the rule of ejusdem generis (“of the same kind”),

where an enumeration of specific things is followed by a general

word or phrase, the general word or phrase is held to refer to

articles       of   the   same   kind    as    the    specified    articles.      In

classification cases, the principle of ejusdem generis requires

that     the    imported     merchandise      possess      the   same    essential
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Court No. 02-00730


characteristics or purposes that unite the specific enumerated

articles to be classified under the general word or phrase.   E.g.,

Airflow Tech., Inc. v. United States, 524 F.3d 1287, 1292 (Fed.Cir.

2008).   To determine the essential characteristic, courts can

consider attributes such as the purpose, character, material,

design, and texture.   See, e.g., United States v. Danmak Trading

Co., 43 CCPA 77 (1956). In accordance with its standard of review,

the Federal Circuit interpreted, de novo, the tariff term “and the

like” in subheading 6404.11, HTSUS.


          The plaintiff alleges clear error in Deckers I, but it

does not cite any case to support its proposition that ejusdem

generis analysis requires a factual finding by a trial court, or

that the Federal Circuit cannot perform such analysis de novo. The

interpretation of a statute is a question of law, and ejusdem

generis is used by courts to assist in answering that question.

The court of appeals in Deckers I analyzed each of the named

exemplars in subheading 6404.11, HTSUS, based on the facts that

were in the record made before this court.    It then held that an

enclosed upper is the unifying characteristic of the exemplars in

that subheading.   Plaintiff’s repeated position does not persuade
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now that the Federal Circuit’s ejusdem generis analysis was clearly

erroneous or otherwise improper.


                                       C

          In short, this matter is ripe for summary judgment.            And

the defendant is entitled to it as a matter of law.

          In classification cases, summary judgment is appropriate

when there is no dispute as to the “nature” of the merchandise at

issue, and the only issue is the meaning and scope of a tariff

provision. E.g., Faus Group, Inc. v. United States, 581 F.3d 1369,

1372 (Fed.Cir. 2009); Intercontinental Marble Corp. v. United

States, 381 F.3d 1169, 1173 (Fed.Cir. 2004); Bausch & Lomb, supra;

The Pomeroy Collection, Ltd. v. United States, 35 CIT 761, 763, 783

F.Supp.2d 1257, 1260 (2011).      See also Deckers Corp., supra, 714

F.3d at 1371.    The record evidence here is unequivocal: all of the

material facts necessary to determine the classification of the

sandals at issue are already before the court.


          They    continue   to   be       classifiable   under   subheading

6404.19.35, supra, as a matter of law because they have open toes

and/or open heels, as considered in the previous Decker opinions,

and as the parties at bar know. Samples of five of the styles of

sandals at issue have been filed with the court, and the defendant
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has also submitted photographs of all seven at issue. Additionally,

the defendant does not dispute the facts that were established at

trial in Deckers I and set forth in this court’s decision. The

articles are therefore classifiable under subheading 6404.19.35,

HTSUS.

          The record further shows that the subject sandals cannot

be classified under subheadings 6404.11.80 or 6404.11.90, HTSUS, as

a matter of law, because the Federal Circuit has held that the

operative language of those tariff provisions, “tennis shoes,

basketball   shoes,   gym   shoes,   training   shoes   and   the   like”,

encompasses shoes with enclosed uppers.         This court is bound by

that court’s interpretation, and, undeniably, the sandals at issue

do not have enclosed uppers.


          The classification of five of the seven styles of sandals

at issue were previously addressed in Deckers II.         The plaintiff

here does not point to any material facts in the record regarding

the “nature” of those sandals that would call for a different

result or would be in addition to those addressed in Deckers II.

Finally, the plaintiff does not show or persuade that there are any

material differences with respect to the remaining two styles,

which were not at issue in Deckers II, that would call for a
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different result with respect to them.                 For that matter, as

mentioned, in its motions to suspend the instant matter, first

under test case No. 02-00674 and then under test case No. 02-00732,

the plaintiff represented that the disposition of its merchandise

would be facilitated by such suspensions because the test case(s)

involved the same class or kind of goods and the same claims,

making it clear that the sandals in this instant action entail the

same issues of law and fact.       Inasmuch as the facts relating to the

“nature” of the merchandise are undisputed and are already on the

record,    all   the   evidence    necessary      to   determine     the   proper

classification of the sandals at issue is before the court.


                                        II

            In sum, the evidence already of record establishes that

plaintiff’s Pretty Rugged, Trail Raptor, Road Raptor, Vector, Terra

Fi,   Universal    Approach,      and    Universal     Guide   are    correctly

classifiable under subheading 6404.19.35, HTSUS, and judgment to

that effect will therefore enter accordingly.

            So ordered.

Decided:    New York, New York
            February 4, 2019


                                             /s Thomas J. Aquilino, Jr.
                                                    Senior Judge
