Bausch & Lomb, Inc. v. U.S.

• Citation: 148 F.3d 1363
• Decision Date: 08 July 1998
• Docket Number: No. 97-1333,97-1333
• Parties: BAUSCH & LOMB, INCORPORATED, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 1363

148 F.3d 1363

BAUSCH & LOMB, INCORPORATED, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

No. 97-1333.

United States Court of Appeals, Federal Circuit.

July 8, 1998.

Michael K. Tomenga, Neville, Peterson & Williams, of Washington, DC, argued for plaintiff-appellant. With him on the brief was Jamie L. Boucher, McKenna & Cuneo, L.L.P, of Washington, DC.

Barbara S. Williams, Office of the Assistant Attorney General, Civil Division, Commercial Litigation Branch, International Trade Field Office, U.S. Department of Justice, New York, New York, argued for defendant-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, U.S. Department of Justice, Washington, DC; and Joseph I. Liebman, Attorney in Charge, International Before MICHEL, PLAGER, and LOURIE, Circuit Judges.

Trade Field Office. Of counsel on the brief was Mark K. Nackman, Attorney, Office of Assistant Chief Counsel, International Trade Litigation, United States Customs Service, New York, New York.

PLAGER, Circuit Judge.

This case requires us to answer the question of whether an electric toothbrush is properly classified under the Harmonized Tariff Schedule of the United States ("HTSUS") as a "toothbrush" or as an "electromechanical domestic appliance." In the course of doing so, we have been asked by the trial court to clarify the circumstances under which summary judgment may be granted when there is a dispute over the proper classification. Because the Court of International Trade correctly adjudged the latter classification to be the proper one, Bausch & Lomb, Inc. v. United States, 957 F.Supp. 281, 19 ITRD 1216 (C.I.T.1997), and because we conclude that summary judgment is appropriate in these circumstances, we affirm.

BACKGROUND

The merchandise at issue in this classification case is a battery-operated electric toothbrush sold under the trademark "Interplak." Appellant, Bausch & Lomb, Inc. ("Bausch & Lomb"), imports several different models of this product. For purposes of the present appeal it is sufficient to focus on the common elements of each. As described by the trial court, and admitted by Bausch & Lomb, the Interplak comprises three basic elements:

one to four interchangeable plastic toothbrush heads;

a detachable plastic handle containing a battery-operated motor and a compartment for two rechargeable batteries; and

a stand that incorporates a battery recharger.

Bausch & Lomb, 957 F.Supp. at 282.

Bausch & Lomb imported the subject merchandise into the United States between January 8, 1991 and August 12, 1992. Until February 6, 1991, the merchandise was classified by Customs as "[t]oothbrushes" under HTSUS Subheading 9603.21.00. On that date, however, Customs issued a Notice of Action reclassifying the Interplak as "[o]ther [electromechanical domestic] appliances" under HTSUS Subheading 8509.80.00. Despite their prior treatment as toothbrushes, Customs liquidated the subject merchandise as "[o]ther appliances." Bausch & Lomb filed a protest, claiming that the entries should continue to be classified as "[t]oothbrushes." Customs denied the protest, and Bausch & Lomb filed the present suit in the Court of International Trade under section 515(a) of the Tariff Act of 1930. See 19 U.S.C. § 1515(a) (1994).

Before that court, both parties moved for summary judgment. Finding no genuine issue of material fact, the trial court granted the Government's motion and denied Bausch & Lomb's, holding that, as a matter of law, the Interplak was properly classified as an appliance under 8509.80.00 of the HTSUS. Bausch & Lomb now appeals from that decision. We have jurisdiction over the final decision of the Court of International Trade pursuant to 28 U.S.C. § 1295(a)(5) (1994).

DISCUSSION

I.

Before reaching the merits of this case, we turn first to the procedural question raised by the trial court. The problem, as the trial court saw it, is created by this court's routine characterization of classification determinations as involving a two-step process. ¹ As the trial court noted, the general The ultimate question in a classification case is whether the merchandise is properly classified under one or another classification heading. We have consistently viewed this as a question of law, see Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1391 (Fed.Cir.1994), because what is at issue is the meaning of the terms set out in the statute, see Universal Elecs., 112 F.3d at 492 ("Questions such as these lie within the domain of the courts, for 'it is emphatically the province and duty of the judicial department to say what the law is.' " (quoting Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 177, 2 L.Ed. 60 (1803))).

                statement found in many of our cases is that, when there is a dispute over which of two or more tariff classifications particular merchandise falls under, the court analyzes the problem in two steps:  first, construe the relevant classification headings;  and second, determine under which of the properly construed tariff terms the merchandise at issue falls.  See, e.g., Universal Elecs., Inc. v. United States, 112 F.3d 488, 491 (Fed.Cir.1997).  The first step of construing the tariff classification terms is denominated a question of law, see id., while the second step is, under the usual iteration of the rule, referred to as a factual inquiry, see id.   The trial court viewed this characterization of the two-step process as raising a logical and practical dilemma when deciding classification cases on summary judgment, because the second step seemed to overlap with the ultimate question of whether the merchandise was correctly classified under the statute
                

As the trial court noted, if the second step, viewed as focusing on the particular merchandise and where it fits in the statutory scheme, is taken as a question of fact, no party would stipulate to the other party's classification as factually correct, since "to do so would be to stipulate oneself out of court." Bausch & Lomb, 957 F.Supp. at 282. How then could summary judgment be appropriate, the trial court asked, if a prerequisite to summary judgment is that there be "no genuine issue as to any material fact." Ct. Int'l Trade R. 56.

We appreciate the trial court's view, but we do not understand the two-step process to present a problem, certainly not a sufficient problem to warrant this court going in banc, which is what we must do if we wish to modify the long-standing existence of the two-step rule. In the first place, the Court of International Trade has not hesitated to decide classification cases on summary judgment when that was appropriate. See, e.g., Nissho Iwai Am. Corp. v. United States, 143 F.3d 1470, 1472-73 (Fed.Cir.1998); Orlando Food Corp. v. United States, 140 F.3d 1437, 1439, (Fed.Cir.1998); A Classic Time v. United States, 123 F.3d 1475, 1476 (Fed.Cir.1997); SGI, Inc. v. United States, 122 F.3d 1468, 1469 (Fed.Cir.1997); Celestaire, Inc. v. United States, 120 F.3d 1232, 1232 (Fed.Cir.1997); Rollerblade, Inc. v. United States, 112 F.3d 481, 483 (Fed.Cir.1997). This case is a perfect example.

In the second place, our recent cases have made clear that summary judgment is appropriate when there is no genuine dispute as to the underlying factual issue of exactly what the merchandise is. See Nissho Iwai, 143 F.3d 1470, 1472-73 ("Because the nature and use of the imported athletic shoes are not in dispute in this case, the resolution of this appeal turns on the determination of the proper scope of the relevant classifications."); IKO Indus., Ltd. v. United States, 105 F.3d 624, 626-27 (Fed.Cir.1997); Rollerblade, 112 F.3d at 483 ("[The parties] agree that none of the pertinent characteristics of the merchandise is in dispute, and thus the sole issue is a matter of properly interpreting the classification term at issue ... to determine whether the scope of that term is broad enough to encompass the items with the particular characteristics."); Sports Graphics, 24 F.3d at 1391. Understood in that manner, there is nothing inherently incompatible with the In this case, the court properly exercised its authority and decided, based on undisputed facts characterizing the Interplak as described above, whether the merchandise was properly classified under the "Other appliances" subheading. See Bausch & Lomb, 957 F.Supp. at 289. We now consider if that conclusion was correct.

summary judgment process if the court construes the relevant (competing) classification headings, a question of law; determines what the merchandise at issue is, a question of fact; and then, if there is no genuine dispute over the nature of the merchandise, adjudges on summary judgment the proper classification under which it falls, the ultimate question in every classification case and one that has always been treated as a question of law.

II.

We start first with the competing tariff headings. Customs classified the Interplak electric toothbrushes as "Other appliances" under Subheading 8509.80.00 of the HTSUS, which provides:

8509 Electromechanical domestic appliances, with self-contained electric motor; parts thereof:

* * * * * *

8509.80.00 Other appliances ... [duty rate of 4.2% ad valorem ]

The plain language of Subheading 8509.80.00 covers electromechanical domestic appliances with self-contained electric motors--of which an electric toothbrush is undoubtedly one. This interpretation is supported by the Explanatory Notes under Heading 8509, which specifically classify "Electric tooth brushes" under that Heading, rather than under Heading 9603, as well as the Explanatory Notes under Heading 9603, which appear to limit that Heading to brushes "for" appliances, and not the appliances themselves. See Lonza Inc. v. United States, 46 F.3d 1098, 1109 (Fed.Cir.1995) ("While the Explanatory Notes do not constitute controlling legislative history, they do offer guidance in interpreting HTS subheadings.").

Bausch &...