 United States Court of Appeals for the Federal Circuit


                                       04-1443



                            AVENUES IN LEATHER, INC.,

                                                            Plaintiff-Appellee,

                                           v.


                                  UNITED STATES,

                                                            Defendant-Appellant.


        James Caffentzis, Fitch, King and Caffentzis, of New York, New York, argued for
plaintiff-appellee. With him on the brief was Peter J. Fitch.

       Amy M. Rubin, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellant. With
her on the brief were Peter D. Keisler, Assistant Attorney General, David M. Cohen,
Director, and Barbara S. Williams, Attorney in Charge, International Trade Field Office,
of New York, New York. Of counsel on the brief was Karen P. Binder, Assistant Chief
Counsel, United States Customs and Border Protection, of New York, New York.

Appealed from: United States Court of International Trade

Senior Judge R. Kenton Musgrave
 United States Court of Appeals for the Federal Circuit

                                         04-1443

                             AVENUES IN LEATHER, INC.,

                                                      Plaintiff-Appellee,

                                            v.

                                   UNITED STATES,

                                                      Defendant-Appellant.



                           __________________________

                            DECIDED: September 15, 2005

                           __________________________



Before MICHEL, Chief Judge, RADER and LINN, Circuit Judges.

LINN, Circuit Judge.

      The United States appeals a decision of the Court of International Trade

classifying certain folio merchandise imported by Avenues in Leather, Inc. (“Avenues”)

under subheading 4820.10.2020 of the Harmonized Tariff Schedule of the United States

(“HTSUS”). Aves. in Leather v. United States, No. 99-09-00603 (Ct. Int’l Trade Apr. 26,

2004) (“CIT Opinion”).    Because we conclude that the Court of International Trade

correctly classified the imported goods, we affirm.
                                    BACKGROUND

      The merchandise at issue are Presentation Calcu-Folios imported by Avenues in

1997. These Calcu-Folios measure approximately 13.5 inches tall by 11.5 inches wide

by 1.5 inches deep when closed, are zippered on three sides with an interior sleeve,

possess one exterior open flat pocket and a number of small interior pockets, have a

padded carrying handle fitted to the exterior spine, are constructed of paperboard

covered with plastic foam and a vinyl/plastic exterior and interior, contain a solar-

powered calculator, and have an interior three-ring metal binder permanently affixed to

the spine.

      Upon importation, the Bureau of Customs and Border Protection and its

predecessor United States Customs Service (“Customs”) classified the merchandise

under HTSUS subheading 4202.12.20,1 which covers “Trunks, suitcases, vanity cases,

attaché cases, briefcases, school satchels, and similar containers. . . [w]ith outer

surface of plastics.”   Avenues argued, however, that the Presentation Calcu-Folios

should be classified under either HTSUS subheading 4820.30.00,2 which covers




      1
             Heading 4202 covers:

             Trunks, suitcases, vanity cases, attaché cases, briefcases,
             school satchels, spectacle cases, binocular cases, camera
             cases, musical instrument cases, gun cases, holsters and
             similar containers; traveling bags, toiletry bags, knapsacks
             and back packs, handbags, shopping bags, wallets, purses,
             map cases, cigarette cases, tobacco pouches, tool bags,
             sports bags, bottle cases, jewelry boxes, powder cases,
             cutlery cases, similar containers, of leather or of composite
             leather, of sheeting of plastics, of textile materials, of
             vulcanized fiber, or of paperboard, or wholly or mainly
             covered with such materials or with paper. . . .



04-1443                                   2
“[b]inders (other than book covers), folders and file covers” or HTSUS subheading

4820.10.2020, which covers “[m]emorandum pads, letter pads and similar articles.”

       The difference between these two classifications is significant: items classified

under subheading 4202.12.20 are dutiable at 20% ad valorem, while items under

subheadings 4820.30.00 and 4820.10.2020 are dutiable at 3.7% and 2.8%,

respectively.

       This is not the first time the parties have disputed the proper tariff classification of

this type of merchandise. A brief description of the procedural history of this case is

warranted to provide the context for the Court of International Trade’s decision, which is

the subject of this appeal.

       In 1993, upon importation of four other types of leather folios similar to the

merchandise at issue in this case, Customs classified the leather folios under HTSUS

subheading 4202.11.00. Aves. in Leather v. United States, 11 F. Supp. 2d 719, 721

(Ct. Int’l Trade 1998). Avenues protested Customs’ classification and filed suit in the

Court of International Trade, arguing that the folios should be classified under

subheading 4820.10.20.        Id.   The Court of International Trade granted summary

judgment upholding Customs’ classification. Id. at 726. Avenues appealed to this court,




       2
                Heading 4820 covers:

                Registers, account books, notebooks, order books, receipt
                books, letter pads, memorandum pads, diaries and similar
                articles, exercise books, blotting pads, binders (looseleaf or
                other), folders, file covers, manifold business forms,
                interleaved carbon sets and other articles of stationery, of
                paper or paperboard; albums for samples or for collections
                and book covers (including cover boards and book jackets)
                of paper or paperboard….


04-1443                                       3
and we affirmed the judgment of the Court of International Trade. Aves. in Leather, Inc.

v. United States, 178 F.3d 1241, 1246 (Fed. Cir. 1999) (“Avenues I”).

       In 1997, Customs classified the Calcu-Folio goods, which are the subject of this

appeal, under subheading 4202.12.20. Avenues disagreed with Customs’ classification

and filed a complaint in the Court of International Trade, contending that the

merchandise is properly classifiable under subheading 4820.30.00.            The Court of

International Trade granted summary judgment affirming the classification based on the

reasoning that, to avoid summary judgment, Avenues had to prove that our decision in

Avenues I was “clearly erroneous.” Id. We reversed the grant of summary judgment

and remanded the case because this was a new entry and a court had not previously

classified the Calcu-Folios. Aves. in Leather v. United States, 317 F.3d 1399, 1405

(Fed. Cir. 2003) (“Avenues II”).

       On remand, a trial was held on October 1, 2003 at the Court of International

Trade. To prove that the Calcu-Folios should be classified under HTSUS heading 4820,

Avenues presented testimony of Otniel Shor, Caron Ann Williamson, and Sam

Goldstein. Customs responded by presenting the testimony of Customs National Import

Specialists Carl Abramowitz and Kevin Gorman to support its contention that the

merchandise should be classified under heading 4202. The Court of International Trade

rejected Customs’ classification of the Presentation Calcu-Folios under subheading

4202.12.20, and held that they were classified properly under subheading 4820.10.2020

as “memorandum pads.” CIT Opinion.

       At the trial, Avenues’ witness, Shor, the designer of Calcu-Folio, testified that the

article was designed as an organizational aid for taking notes by allowing the user to




04-1443                                      4
organize and interact with the matter bound by the pad folio. He further testified that the

inside sleeve was designed to hold a standard office folder, and the folio had a

maximum inside capacity of 1 inch. Thus, Avenues contended, the folios at issue were

akin to “portfolios,” or flat cases designed and intended to hold papers.

       Customs submitted several dictionary definitions of “briefcase” to argue that the

merchandise was prima facie classifiable in heading 4202 as either a form of “briefcase”

or as a “similar container” under an ejusdem generis analysis.              Emphasizing the

“container” aspects of the merchandise, Customs introduced evidence on the marketing

of the goods as business travel goods. Customs further argued that the folios were

capable of being used to carry non-paper personal and business objects.

       In reaching its conclusion, the Court of International Trade recognized that the

essential characteristics of the listed exemplars in heading 4202 are to “organize, store,

protect, and carry various items.” Based on the testimony of the witnesses and the

evidence presented, it concluded that the Calcu-Folios had a different specific primary

purpose—to facilitate the taking of notes as well as aid the organization of print and

other visual flat materials capable of being bound by the article’s metal binder or fit

within its pockets. Relying on General Rules of Interpretation (“GRI”) 3(b), the Court of

International Trade concluded that the article had the essential character of a binder or

a memorandum pad under heading 4820, and such features complemented the article’s

predominant purpose as an article of stationery, of paper or paperboard. Thus, the

Court of International Trade classified the folios as memorandum pads, under

Subheading 4820.10.2020.




04-1443                                     5
       The United States timely appealed to this court. We have jurisdiction under 28

U.S.C. § 1295(a)(5).

                                       DISCUSSION

                                  A. Standard of Review

       Whether an imported item has been properly classified involves a two step

analysis: (1) ascertaining the proper meaning of specific terms in the tariff provision; and

(2) determining whether the merchandise at issue comes within the description of such

terms as properly construed. Sports Graphics, Inc. v. United States, 24 F.3d 1390,

1391 (Fed. Cir. 1994). Determining the proper meaning of terms is a question of law

that we review de novo, while determining whether the item fits within such meaning is a

question of fact that we review for clear error. Id.

       On appeal, “the appellant bears the burden of establishing reversible error in the

decision of the Court of International Trade, by showing that the court erred in its

interpretation of the law, or that its findings of fact are clearly erroneous with due

consideration to the appropriate level of deference.”      Park B. Smith, Ltd. v. United

States, 347 F.3d 922, 925 (Fed. Cir. 2003).

                                          B. Analysis

                                        I. Stare Decisis

       Customs first argues that the Court of International Trade’s decision violates the

doctrine of stare decisis because it failed to disinguish this court’s ruling in Avenues I.

Specifically, Customs contends that because the Calcu-Folios are substantially the

same as the articles at issue in Avenues I, the Court of International Trade should have

been bound by the decision in that case, which classified the articles under section




04-1443                                       6
4202 and rejected Avenues’ attempt to classify them under section 4820. Customs

further contends that the Court of International Trade erred by not providing any basis

for distinguishing this case from Avenues I.

       Avenues responds that the similarity of the articles does not preclude it from

retrying the classification under the rule of law pronounced in United States v. Stone &

Downer Co., 274 U.S. 225 (1927). Avenues contends that it was allowed to present

new or additional evidence to the trial court and have the second case considered on its

own merits. Avenues finally responds that, contrary to the government’s assertions, the

public will not be left without any guidance due to the apparent conflict between this

decision and Avenues I because the remaining cases will be resolved on a case by

case basis either at the administrative or the judicial level.

       It is well settled that collateral estoppel does not prevent 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.” Stone &

Downer Co., 274 U.S. at 234. However, as we explained in Avenues II, “[a]lthough an

importer is free to challenge anew a previous classification of merchandise under the

rule of Stone & Downer, we have decided that the importer is burdened by the doctrine

of stare decisis.” Avenues II, 317 F.3d at 1403.

       Stare decisis in essence “makes each judgment a statement of the law, or

precedent, binding in future cases before the same court or another court owing

obedience to its decision…. It deals only with law, as the facts of each case must be

determined by the evidence adduced at trial. . . .” Mendenhall v. Cedar Rapids, Inc., 5




04-1443                                        7
F.3d 1557, 1570 (Fed. Cir. 1993) (quoting 18 James W. Moore, Moore’s Federal

Practice, ¶ G401 (2d ed. 1993)).

        Because the doctrine of stare decisis applies to only legal issues and not issues

of fact, Avenues is burdened by the previous legal determination that “the common

characteristic or unifying purpose of the goods in heading 4202 consist[s] of ‘organizing,

storing, protecting, and carrying various items.’” Avenues II, 317 F.3d at 1402. More

importantly, because the determination of whether the merchandise at issue comes

within the description of a tariff provision is an issue of fact, Park B. Smith, Ltd., 347

F.3d at 926, the classification of goods in Avenues I is not stare decisis to the

classification of the Calcu-Folios in this case. Thus, the Court of International Trade did

not violate the doctrine of stare decisis in classifying the merchandise under Heading

4820.

                            II.    HTSUS Classification

        The parties’ remaining arguments are directed to the issue of whether the

properly-interpreted scope of HTSUS Heading 4202 or HTSUS Heading 4820

encompasses Avenues’ imported folios. We address classification under each of these

headings seperately.

                                   a. Heading 4202

        Regarding classification under Heading 4202, Customs argues that because the

articles at issue satisfy the common definition of one of the eo nomine exemplars,

“briefcases,” the Court of International Trade erred in concluding that the Calcu-Folios

are not classified under section 4202. Customs further argues that, under a ejusdem




04-1443                                     8
generis analysis, the articles in question are classifiable under Heading 4202 because

they possess the characteristics uniting all of the containers of that heading.

        Avenues responds that the Court of International Trade correctly concluded that

the Calcu-Folios are not a form of a “briefcase,” and properly rejected an ejusdem

generis classification under Heading 4202 in view of its finding that the specific primary

purpose of the Calcu-Folios is to facilitate taking of notes as well as to aid the

organization of print and other visual flat materials.

        While the Court of International Trade did not specifically state that the folios in

question were not a form of briefcase, the court described the goods in question as “pad

folios,” and, as such, concluded that “they lack[ed] specific eo nomine classification in

the HTSUS.” CIT Opinion at 2. Thus, the court implicitly rejected their classification as

a form of a briefcase. Based on its observation that the folio pockets were essentially

flat, the court found “the article suitable only for holding loose papers, files and other flat

items such as business cards, floppy discs, et cetera.”          Id. at 16.   The court also

acknowledged the testimony of Avenues’ witness, Shor, stating that

        [Shor] explained that “pad folios” are not briefcases, which are designed to
        carry various business-related as well as personal articles…, nor are they
        attache cases, which are hard-sided rectangular cases…. He described
        them as “covers” and “carriers” designed to hold and organize paper
        products and flats such as cards, envelopes, photographs, file folders, thin
        catalogues, et cetera, capable of being fit within the pad folio’s pockets
        and sleeves.

Id. at 4.

        The trial court also found that while the article could be used to carry personal

objects that would normally be carried in a briefcase, the article was not designed to do

so. See id. at 17. The trial court made these factual findings based on the testimony of

the witnesses and other evidence presented to the court. We do not discern clear error


04-1443                                       9
in either the trial court’s findings, or its conclusion based on those findings that the

Calcu-Folios are not, eo nomine, a form of briefcase.

       Heading 4202 contains a list of particular items followed by a general phrase,

“similar articles.” It is well settled that when a list of items is followed by a general word

or phrase, the rule of ejusdem generis is used to determine the scope of the general

word or phrase. See Totes, Inc. v. United States, 69 F.3d 495, 498 (Fed. Cir. 1995). In

classification cases, ejusdem generis requires that, for any imported merchandise to fall

within the scope of the general term or phrase, the merchandise must possess the

same essential characteristics or purposes that unite the listed exemplars preceding the

general term or phrase. Sports Graphics, 24 F.3d at 1392. However, a classification

under the ejusdem generis principle “is inappropriate when an imported article has a

specific and primary purpose that is inconsistent with that of the listed exemplars in a

particular heading.” Avenues I, 178 F.3d at 1244.

       We have previously held that the “the common characteristic or unifying purpose

of the goods in heading 4202 consist[s] of ‘organizing, storing, protecting, and carrying

various items.’” Avenues II, 317 F.3d at 1402. The Court of International Trade found

the specific and primary purpose of the Calcu-Folios is to facilitate taking of notes as

well as to aid the organization of print and other visual flat materials capable of being

bound by the article’s metal binder or fit within its pockets. CIT Opinion at 19. Customs

does not challenge this finding.     It asserts, however, that this specific and primary

purpose of the Calcu-Folios cannot preclude ejusdem generis classification of the

articles under Heading 4202.




04-1443                                      10
       In Avenues I, we concurred with the Court of International Trade’s conclusion

that the physical characteristics of the leather folios “speak strongly to the ‘organizing,

storing, protecting, and carrying’ characteristics of the imported merchandise.” Avenues

I, 178 F.3d at 1245. However, the classification of the leather folios in Avenues I was

resolved on summary judgment. In contrast, in this case, the trial court reached its

conclusions after assessing the credibility of the witnesses. Specifically, finding Shor’s

testimony credible, the court found that the Calcu-Folios were “not designed to

accommodate various personal objects.” CIT Opinion at 17. The Court also noted that,

in view of the limited storage space of the folio, “the article’s interior is not sufficiently

large or durable enough to hold books, thick newspapers or other personal items for any

extended period without damaging itself (or them).” Id. 17-18. While acknowledging

that Customs presented evidence to show that the articles could be used to carry

personal items, the court found “the testimony of the product’s designer of its intended

use” to be more persuasive. Id. at 17. For the foregoing reasons, we see no basis to

conclude that the trial court’s findings are clearly erroneous, particularly in view of the

deference afforded to its factual findings based on credibility of witnesses.            See

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (“When findings are based on

determinations regarding the credibility of witnesses, Rule 52(a) demands even greater

deference to the trial court’s findings; for only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said.”).

       Based on these factual findings, the Court of International Trade concluded that

“[t]he articles ‘4202’ features do not impart the essential characteristics of a ‘4202’




04-1443                                      11
container.” CIT Opinion at 19. We agree. Here, while the Calcu-Folios may be used to

organize and protect small and/or flat items in addition to a writing pad, they have an

internal capacity of only 1 inch and lack significant carrying space.                    These

characteristics make them unsuitable to carry newspapers, books, and other objects

that are normally carried in containers that are common to Heading 4202. Moreover,

while the articles in question may be generally described as “containers,” their specific

use is limited to facilitation in taking of notes as well as aiding in the organization of print

and other visual flat materials. Such a specific use, which predominates over the more

general description of containers, precludes classification of the Calcu-Folios under

Heading 4202. See Totes, 69 F.3d at 498 (stating that the merchandise in Sports

Graphics was not ejusdem generis with the listed exemplars because the imports had a

“different purpose” and “the specific use [of the imported merchandise] was

predominant over the more general description [of the listed exemplars]”).

       Accordingly, the Court of International Trade correctly concluded that the Calcu-

Folios are neither classifiable, eo nomine, as a form of briefcase, nor, under an ejusdem

generis analysis, as a “similar container,” under Heading 4202.

                                      b. Heading 4820

       Regarding classification of the Calcu-Folios under Subheading 4820.10.2020,

Customs contends that the Court of International Trade erred in classifying the

merchandise as memorandum pads. Specifically, Customs argues that Note 1(h) of

Heading 4820 precludes classification under that heading. Customs further argues that

the the imported articles are not “articles of stationery, of paper or paperboard.” Finally,

Customs argues that the trial court erred in using the “essential character” analysis




04-1443                                       12
under GRI 3(b), and confused the concepts of “primary purpose” and “essential

character.”

      Avenues responds that Note 1(h) is inapplicable because the imported articles

have a specific primary purpose that prohibits their classification under Heading 4202.

Avenues further responds that, based on the evidence, the court correctly found the

Calcu-Folios are articles of stationery pertaining to paper or paperboard.

      The proper classification of merchandise is governed by the GRIs. See Orlando

Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed. Cir. 1998). GRI 1 provides that

classification is to be determined according to the terms of the headings and any

relevant section or chapter notes.      Section and chapter notes “are not optional

interpretive rules, but are statutory law, codified at 19 U.S.C. § 1202.” Park B. Smith,

347 F.3d at 927. Note 1(h) to Chapter 48 states that the Chapter does not cover

“[a]rticles of heading 4202 (for example travel goods).” Thus, if the articles are prima

facie classifiable under Heading 4202, then applying Note 1(h), the articles are

specifically excluded from classification under Heading 4820. See Midwest of Cannon

Falls, Inc. v. United States, 122 F.3d 1423, 1429 (Fed. Cir. 1997). Conversely, if the

articles are not prima facie classifiable under Heading 4202, exclusionary Note 1(h) is

inapplicable. Because, for the reasons stated above in section II.a, supra, the Calcu-

Folios are not prima facie classifiable under Heading 4202, Note 1(h) does not preclude

classification under Heading 4820.

      Taking into consideration all the physical attributes of the Calcu-Folios and the

testimony of the witnesses, the Court of International Trade concluded that they were

described properly as an article of stationery, of paper or paperboard. CIT Opinion at




04-1443                                    13
19. The court based its conclusion in part on the presence of the article’s structural

components, which include a memorandum pad, a three-ring binder, and a paperboard

core and spine.      The memorandum pad and the core are clearly of paper or

paperboard. The court further found that the article’s pockets are essentially flat, which

limits their storage capabilities to papers and other flat items, and the three-ring binder

served to hold three-holed items, such as paper from the memorandum pad. Thus, the

court concluded, and we agree, that the Calcu-Folios exhibit characteristics of an article

of stationery, of paper or paperboard. Apart from the memorandum pad and the binder,

which appear as named exemplars under Heading 4820, most of the remaining features

of the Calcu-Folios pertain to use with writing or written documents. For example, the

pen sleeves are used to hold pens, and the limited capacity of the cover and the

pockets restrict use of the Calcu-Folios to holding or organizing flat items such as

papers or folders.

       Moreover, the Explanatory Notes (“ENs”) to Heading 4820 state in relevant part

that the heading includes: “(1) … memorandum pad. . . (3) Binders designed for holding

loose sheets, magazines, or the like (e.g., clip binders, spring binders, screw binders,

ring binders) and folders, file covers, files. . . and portfolios.” The ENs further provide

that these goods may be bound with materials other than paper, such as leather,

plastics, or textile materials, and may have reinforcements or fittings of metals.

Although the ENs are not legally binding or dispositive, they may be consulted for

guidance and are generally indicative of the proper interpretation of the various HTSUS

provisions. JVC Co. of Am. v. United States, 234 F.3d 1348, 1352 (Fed. Cir. 2000).

The examples listed in the EN support the trial court’s conclusion that the Calcu-Folio,




04-1443                                     14
which contains a memorandum pad, a ring binder designed to hold loose papers, and a

cover to protect its contents, falls under Heading 4820.

          Thus, the imported item as a whole exhibits characteristics of an article of

stationery, of paper or paperboard, and shares the common characteristics of a

memorandum pad and a letter pad. Accordingly, applying GRI 1, we hold that the

Calcu-Folios are classifiable under Subheading 4820.10.2020.

          Because we conclude that the merchandise at issue is properly classifiable under

GRI 1, resort to an analysis under GRI 3(b) is unnecessary. However, since the trial

court reached the correct result, mis-steps in its reasoning in arriving there are harmless

errors.     Pillowtex Corp. v. United States, 171 F.3d 1370, 1376 (Fed. Cir. 1999).

Accordingly, we need not address Customs’ remaining arguments pertaining to the

“essential character” analysis under GRI 3(b).

                                          CONCLUSION

          Because the Court of International Trade correctly classified the subject Calcu-

Folios under Heading 4820.10.2020, we affirm.

                                            AFFIRMED




04-1443                                      15
