                          Slip Op. 13 - 51

            UNITED STATES COURT OF INTERNATIONAL TRADE

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DECKERS CORPORATION,                    :

                          Plaintiff, :

               v.                       :   Court No. 02-00732

THE UNITED STATES,                      :

                          Defendant. :

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                          Opinion


[Upon cross-motions as to classi-
 fication of certain Teva® sandals,
 summary judgment for the defendant.]

                                            Decided:   April 12, 2013


     Rode & Qualey (Patrick D. Gill, William J. Maloney            and
Eleanore Kelly-Kobayashi) for the plaintiff.

     Stuart F. Delery, Acting Assistant Attorney General; Barbara
S. Williams, Attorney in Charge, International Trade Field Office,
Commercial Litigation Branch, Civil Division, U.S. Department of
Justice (Marcella Powell); and Office of Assistant Chief Counsel,
International Trade Litigation, U.S. Customs and Border Protection
(Michael W. Heydrich), of counsel, for the defendant.


          AQUILINO, Senior Judge: Pursuant to 28 U.S.C. §§ 1581(a)

and 2631(a), the above-named plaintiff commenced Court No. 02-00674

to contest classification by the U.S. Customs Service, as it was

then still known, of imported footwear sub nom. Pretty Rugged
Court No. 02-00732                                                  Page 2


Sport    Sandal,   Terradactyl    Sport   Sandal,   and   Aquadactyl   Sport

Sandal, which action was designated a test case within the meaning

of USCIT Rule 84(a).     Pursuant to subsection (d) of that rule, a

suspension calendar was established for many, arguably-contingent

actions subsequently commenced by the plaintiff, including this

one, Court No. 02-00732.

                                     I


             This court in its slip opinion 05-159, 29 CIT 1481, 414

F.Supp.2d 1252 (2005), filed in the test case, denied defendant’s

motion for summary judgment.         Following necessary trial on the

merits,     however,   judgment     entered,    affirming     the   Customs

classification of the foregoing merchandise and dismissing that

action per slip opinion 07-136, 31 CIT 1367 (2007), aff’d, 532 F.3d

1312 (Fed.Cir. 2008).


                                     A

             Come now counsel for the defendant with a motion for

summary judgment, seeking the same relief herein, dismissal of

plaintiff’s complaint.     That pleading states succinctly:


        . . . 9.  The imported merchandise invoiced as style Nos.
        6401, 6601, 6408, 6653, 1360, 6818, 6771B and 6813 are
        valued at over $6.50 per pair but not over $12.00 per
        pair.
Court No. 02-00732                                         Page 3


          10. The imported merchandise invoiced as style Nos.
     6650, 6641, 6025, 6823 and 6648 are valued at over $12.00
     per pair.

          11.   The imported merchandise is athletic footwear.

          12.   The imported articles are shoes.

          13. The imported style Nos. 6650 and 6648 are
     running shoes.

          14. The imported style Nos. 6650 and 6648 are
     training shoes.

          15. The imported style Nos. 6401, 6601, 6408, 6653,
     6641, 6025, 6823, 1360, 6818, 6771B and 6813 are training
     shoes.

          16. The imported style Nos. set forth in paragraph
     15 are ejusdem generis with the imported style Nos. 6650
     and 6648.

          17. The imported articles are used for training and
     for athletic games or purposes.

          18. The imported merchandise in issue is properly
     classified under subheading 6404.11.80, HTSUS, or
     subheading 6401.11.90, HTSUS, depending on the value of
     the merchandise.


It recites in its paragraphs 7 and 8 the same precatory language of

both preferred subheadings of the Harmonized Tariff Schedule of the

United States (2001), to wit:


     Footwear with outer soles of rubber, plastics, . . . and
     uppers of textile materials: Footwear with outer soles of
     rubber or plastics: . . . tennis shoes, basketball shoes,
     gym shoes, training shoes and the like: . . . Other:
     . . . [.]
Court No. 02-00732                                                 Page 4


On its part, Customs opted for subheading 6404.19.35:

     Footwear with outer soles of rubber, plastics . . . and
     uppers of textile materials: Footwear with outer soles
     of rubber or plastics: Other: Footwear with open toes or
     open heels; . . . Other . . . [.]


            At the time of its filing, USCIT Rule 56(h)(1) required

defendant’s motion to annex a short and concise statement of the

material facts as to which counsel contend there is no genuine issue

to be tried.       Their statement is, in part, as follows:


     . . . 4. The Pretty Rugged sports sandal (“Pretty
     Rugged”) has an upper composed of textile materials.
     . . .

           5. The Pretty Rugged has a sole composed of
     rubber or plastic. . . .

              6.    The Pretty Rugged has open toes. . . .

              7.    The Pretty Rugged has open heels. . . .

           8. The upper of the Pretty             Rugged    does not
     enclose the foot and ankle. . . .


Defendant’s    Statement    of   Undisputed   Material   Facts   (citations

omitted).   It describes similarly the other models of Teva® sandals

at issue herein, namely Pretty Rugged Nylon [see id., paras. 9-13],

Terradactyl [see id., paras. 14-18], Trail Wraptor [see id., paras.

19-23], Road Wraptor [see id., paras. 24-28], Ultimate Thong Guide

[see id., paras. 29-33], Alp Pro [see id., paras. 34-38], Vector
Court No. 02-00732                                                   Page 5


[see id., paras. 39-43], Terra Fi [see id., paras. 44-48], Way Point

Terra Fi [see id., paras. 49-53], Circuit Nylon Women’s [see id.,

paras. 54-58], and Terra Fi Buckle [see id., paras. 59-63].


             The plaintiff has responded with a cross-motion for

summary judgment, including a Rule 56(h) statement, agreeing “that

there are no material facts as to which there exists a genuine issue

to be tried and [that] the issues are amen[]able to resolution

through dispositive motions.”


          However,   plaintiff    submits   that   defendant’s
     Statement of Material Facts 8, 13, 18, 22, 23, 27, 28,
     33, 38, 42, 43, 48, 53, 58, and 63 . . . are inaccurate.
     Nevertheless, . . . these inaccuracies do not create a
     triable issue of fact because the inaccuracies are
     manifest from an examination of the samples themselves,
     Exhibits 19-31[,] and the testimony of plaintiff’s
     potential witnesses in Exhibits 1, 32, 33, and 34.


Plaintiff’s Statement of Undisputed Material Facts, pp. 1-2.                It

proceeds to explain away “these inaccuracies” [see id. at 2-3],

concluding that they

     have no bearing on the ultimate issue in this case --
     whether the Teva® Sports Sandals in issue are “training
     shoes.”

Id. at 3. The plaintiff then “submits that the following additional

undisputed    facts   exist   in   this   case   which   are   supportive   of

plaintiff’s Cross-Motion for Summary Judgment:”
Court No. 02-00732                                             Page 6

     64.   The Teva® Sports Sandals in issue are shoes. . . .

     65.   The Teva® Sports Sandals in issue are training
           shoes. . . .

     66. The Teva® Sports Sandals have special features that
         enhance the foot’s natural abilities with traction,
         cushioning and support. . . .

     67.   All of the Teva® Sports       Sandals in issue are
           athletic footwear. . . .

     68.   The styles 6650 and 6648 Teva® Sports Sandals are
           running shoes. . . .

     69.   “Running shoes are shoes which are used for running,
           jogging and training.” . . .

     70.   The fact that training shoes have openings or are
           not completely enclosed does not detract from their
           being training shoes if they otherwise qualify. . . .

     71.   Training shoes and athletic footwear in general are
           in a constant state of evolution. . . .

     72.   There is an evolution and huge movement in training
           shoes to lighter weight shoes and shoes which are
           more open. . . .

     73.   Jogging is a form of running. . . .

     74.   T.D. 93-88, footwear definitions published by Cus-
           toms, equates training shoes with joggers. . . .

     75.   Training   shoes    describe   a   footwear    category
           comprised of products with features intended to
           provide stability, traction, cushioning and support
           beyond the ability of the human foot alone and all
           of the Teva® Sports Sandals have these features. . . .

     76.   “[R]unning is both a fantastic form of training and
           a huge part of training.” . . .
Court No. 02-00732                                             Page 7

     77.   “It is implicit that a running sandal is a training
           sandal.” . . .

     78.   Styles 6818, 6813, 6823, 6653, 6401, 6408, 1360,
           6025, 6771-B, 6441, 6601, although not specifically
           designed as running shoes, are well suited for
           running and are for that reason training shoes[.] . . .

     79.   “Training shoes are shoes which are used in athletic
           training.” . . .

     80.   A running shoe is designed specifically for the
           activity of running. . . .

     81.   A training shoe is not specific to any particular
           sport. . . .

     82.   A training shoe needs to be runnable. . . .

     83.   A running shoe can easily be used for training
           because a lot of training is running.     It is not
           necessary that a great training shoe becomes a great
           running shoe. . . .

     84.   Most training shoes do not have closed uppers; Most
           training shoes have meshes that are like screens --
           specifically designed to allow as much ventilation
           as possible. . . .

     85.   The Teva® Sports Sandal removed the mesh, but kept
           the same frame structure of a training shoe. . . .

     86.   Most training shoes or running shoes have frame
           structures usually made of synthetic materials with
           screens or meshes to accommodate the most amount of
           ventilation. . . .

     87.   Breathability is important in training shoes and is
           key to avoiding moisture build-up inside the shoe.
           . . .
Court No. 02-00732                                                   Page 8

        88.   The style 6025 is a walking shoe             designed for
              walking which is also a training             shoe because
              walking is something that is done            for physical
              fitness; the style 6025 can also be         run-in. . . .

        89.   The Teva® Sport Sandals are marketed and advertised
              as training shoes. . . .

        90.   All of the Teva® Sports Sandals in issue can be
              used for running and are runnable. . . .

                                 *    *     *

        96.   Teva® style 6653, Terra Fi, has been worn for
              running in competitive road racing. . . .

        97.   Teva® style 6648, Trail Wraptor, has been worn by
              a competitor in a 135 mile running competition
              held in the Mojave Desert. . . .

                                 *    *     *

        99.   Teva® Sports Sandals are worn for training in gyms[.] . . .

Id. at 3-9.

                                      B

              In the interests of brevity, as indicated supra, the

court has omitted plaintiff’s citations in support of its foregoing

averments, as well as those in toto numbered 91, 92, 93, 94, 95, 98,

and 100.      Whatever the proof presented herein in support of each of

them,    defendant’s    fundamental       position   is    its   response   to

plaintiff’s paragraph 64, to wit:


        Admits that sandals in common parlance are “shoes,” but
        avers that sport sandals are not “tennis shoes,
        basketball shoes, gym shoes, training shoes and the
        like” for purposes of the tariff.          See Deckers
Court No. 02-00732                                           Page 9

     Corporation v. United States, 523 F.3d 1312, 1317-1318
     (Fed.Cir. 2008). Further avers that sandals are
     differentiated from shoes in sporting goods stores.
     Further avers that there are significant differences in
     construction and use between a sport shoe and a sport
     sandal. . . .

Defendant’s Response to Plaintiff’s Statement of Undisputed Material

Facts, first page (citation omitted).      Indeed, upon comparison of

the parties’ competing presentations as to the facts involved, this

court is unable to disagree that trial is unnecessary to resolve a

material matter.     That is, the dispositive issue is a question of

law that is susceptible to resolution by way of summary judgment.


           This being the case, the court cannot read the cited

decision of the Court of Appeals for the Federal Circuit, affirming

slip opinion 07-136, supra, as providing a basis for the relief for

which the plaintiff so skillfully prays herein.        That decision

concluded that,

     [b]ecause the sandals at issue have open toes and open
     heels, and lack the features of the named exemplars of
     6404.11.80,   HTSUS,  the   imported  goods  are   not
     classifiable under that subheading, notwithstanding
     their claimed status as athletic footwear.

532 F.3d at 1317.

     . . . We agree with the Court of International Trade
     that the Teva® Sandals are not the kind of shoes to
     which subheading 6404.11.80 refers, for the same reasons
     expressed in the ejusdem generis analysis.

                               *   *   *
Court No. 02-00732                                         Page 10

          The merchandise at issue in this case is properly
     classified under Subheading 6404.19.35, HTSUS, because
     the goods indisputably fit within the plain language of
     that unambiguous subheading.     Subheading 6404.11.80,
     HTSUS, in view of Note 2, does not provide any
     alternative basis for the sandals’ classification as the
     imported goods are not “like” the enumerated exemplars
     of subheading 6404.11.80.

Id. at 1318.

          Moreover, in their Motion to Designate Test Case and

Suspend, filed in CIT No. 02-00674 in March 2004, counsel for the

plaintiff represented that disposition of this action, if suspended

under that test case, would be facilitated because

     2.   Th[at] test case involves the same plaintiff, the
     same defendant, the same class or kind of merchandise,
     i.e., sports sandals, and the same claims.


That this representation was subsequently repeated by them in their

motion to designate this action, Court No. 02-00732, a test case

itself did not alter its essence under the controlling law at the

time of entry into the United States of plaintiff’s underlying

goods, more-propitious types of athletic footwear. 31 CIT at 1373.

Perhaps some day, that law will catch up to them.       See, e.g.,

Proposed Test Method for the Administration of Additional U.S. Note

5 to Chapter 64, HTSUS, Concerning the Classification of Footwear

with Textile Material on the Outer Sole, 47-14 Cust. B. & Dec. 5

(March 27, 2013).
Court No. 02-00732                                           Page 11

                                II

           In view of the foregoing, defendant’s motion must be

granted; summary judgment will enter accordingly.

Decided:   New York, New York
           April 12, 2013




                                     /s/   Thomas J. Aquilino, Jr.
                                                Senior Judge
