Palos v. US
| Decision Date | 10 May 1990 |
| Docket Number | Court No. 85-06-00824. |
| Citation | 737 F. Supp. 1191 |
| Parties | P.F. PALOS, Plaintiff, v. The UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Grunfeld, Desiderio, Lebowitz & Silverman, (Steven P. Florsheim), New York City, for plaintiff.
Stuart M. Gerson, Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, International Trade Field Office, Commercial Litigation Branch (Saul Davis), and (Chi S. Choy, U.S. Customs Service, New York City, of counsel), for defendant.
The question presented in this case pertains to the proper classification, for customs duty purposes, of certain merchandise imported from Brazil and described on the customs invoices as "plastic shoe soles."
The imported merchandise entered at the port of San Juan, Puerto Rico, and was classified by the Customs Service as "other footwear," under item 700.60 of the Tariff Schedules of the United States (TSUS), dutiable at the rate of 20 per centum ad valorem. Plaintiff protests this classification and contends that the imported merchandise is properly classified as "other footwear ...: having uppers of which over 90 percent of the exterior surface area is rubber or plastics," under item 700.58, TSUS, dutiable at the rate of 6 per centum ad valorem.
The pertinent statutory provisions of the tariff schedules are as follows:
The question presented is whether the imported footwear has been properly classified by the Customs Service as "other footwear," under item 700.60, TSUS, with duty at the rate of 20 per centum ad valorem, or whether it contains "uppers of which over 90 percent of the exterior surface area is rubber or plastics," and, hence, is properly classifiable under item 700.58, TSUS, and dutiable at the rate of 6 per centum ad valorem, as claimed by plaintiff. In simple terms, the tariff classification of the imported footwear will differ depending upon whether it contains "uppers."
In order to decide the question presented, the court must consider "whether the government's classification is correct, both independently and in comparison with the importer's alternative." Jarvis Clark Co. v. United States, 733 F.2d 873, 878, reh'g denied, 739 F.2d 628 (Fed.Cir. 1984). Pursuant to 28 U.S.C. § 2639(a)(1) (1982), the government's classification is presumed to be correct, and the burden of proof is upon the party challenging the classification. See Jarvis Clark Co., 733 F.2d at 876.
Contending that there are no genuine issues of material fact, both parties move for summary judgment pursuant to Rule 56 of the Rules of this court. Based upon the statements of material facts submitted by both parties pursuant to Rule 56(i) of the Rules of this court, the court concludes that there are no genuine issues of material fact.
Upon examining the imported footwear, the pertinent tariff schedules, the relevant case law, lexicographic definitions and the affidavits and motion papers submitted by the parties, it is the holding of the court that the imported footwear has been properly classified by Customs as "other footwear," under item 700.60, TSUS.
On a motion for summary judgment, it is the function of the court to determine whether there are any factual disputes that are material to the resolution of the action. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). It is fundamental that "the court may not resolve or try factual issues on a motion for summary judgment." Phone-Mate, Inc. v. United States, 12 CIT ___, 690 F.Supp. 1048, 1050 (1988), aff'd, 867 F.2d 1404 (Fed.Cir.1989). The court, however, may grant a motion for "summary judgment ... against a party who fails to present sufficient evidence `to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C.Cir.1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)), cert. denied, ___ U.S. ___, 109 S.Ct. 1118, 103 L.Ed.2d 181 (1989). In ruling on cross-motions for summary judgment, if no genuine issues of material fact exist, the court must determine whether either party "is entitled to a judgment as a matter of law." USCIT R. 56(d).
The imported merchandise consists of a molded piece of semi-rigid clear plastic, in the shape of the sole of a shoe. Two holes are located in the back of the merchandise, and a nib or protrusion of plastic containing a hole, is located in the front. After importation, a lace or thong is attached to the imported merchandise through the two holes located on the back, and the nib in the front. The finished product is a sandal.
According to plaintiff, "the merchandise ... consists of certain footwear referred to as `Icicles.'" The defendant states "that this footwear is the substantially complete Icicles—in particular the `sole' or `bottom' without the thongs which hold the foot to the sole."
In support of its motion, plaintiff contends that "the subject Icicles, in their imported condition, contain uppers which are wholly of plastics, which therefore renders them properly classifiable under TSUS item 700.58." Specifically, plaintiff asserts that "shoe uppers are those portions of the shoe that extend above the sole, and since the subject Icicles contain one plastic component which extends above the sole, the articles satisfy the requirements of TSUS item 700.58 and are therefore properly classifiable thereunder." Plaintiff explains that the nib, or protrusion of plastic "is clearly the `upper.'"
In opposition to plaintiff's motion, and in support of the classification and its cross-motion, defendant contends that "the imported footwear does not contain any upper in its condition as imported." Defendant also contends that "even if the protrusion of the imported footwear would be considered the upper or part of the upper, it is not the exterior surface of the upper."
It is basic in customs law that "it is the function of the court to interpret the tariff acts in a manner that will fulfill or carry out the intent of Congress." Phone-Mate, 690 F.Supp. at 1051 (citing Sandoz Chem. Works, Inc. v. United States, 43 CCPA 152, 156, C.A.D. 623 (1956)). In determining the intent of Congress, "tariff terms are to be construed in accordance with their common and commercial meanings, which are presumed to be the same." Nippon Kogaku (USA), Inc. v. United States, 69 CCPA 89, 92, 673 F.2d 380, 382 (1982).
In support of its assertion that "shoe uppers are those portions of the shoe that extend above the sole," i.e., the nib or protrusion of plastic, plaintiff cites several lexicographic definitions. According to Webster's Third New International Dictionary of the English Language 2518 (1986), an "upper" is "the parts of a shoe or boot that are above the sole...." In addition, the Dictionary of Shoe Industry Terminology, a trade publication, defines an "upper" as "the top part of the shoe above the sole." Footwear Industries of America, The Dictionary of Shoe Industry Terminology (1986).
Plaintiff also notes that the Customs Service has defined an "upper," in the context of ski boots, as "that portion above the outer sole or, where there is no separate upper and outer sole, as in an injection molded plastic ski boot, that portion above the line simulating the point at which the upper and sole join." T.D. 70-238(19), 4 Cust.B. & Dec. 742, 742 (Oct. 15, 1970). More recently, Customs has stated that "for the purposes of computing the exterior surface area of an upper, the upper is everything from just below the insole level." T.D. 81-79, 15 Cust. B. & Dec. 191, 193 (Apr. 8, 1981). Hence, plaintiff asserts that "it is therefore apparent that the common meaning of the term `uppers' refers to all portions of the footwear that are above the sole."
The defendant, however, disagrees and notes "that decisions of the courts have long treated the thongs as the upper of this type of footwear." In United States v. Shokai, 14 Ct.Cust.App. 392, T.D. 42033 (1927), the imported merchandise consisted of wooden clogs. The clogs were described as:
rectangular blocks of wood, rounded at the corners, flat on the upper side, but grooved and so cut on the under side to serve in a crude manner the purpose of a sole and heel. The clogs have...
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Palos v. U.S., 90-1437
...(Palos) appeals the judgment of the United States Court of International Trade dismissing the complaint. See Palos v. United States, 737 F.Supp. 1191 (Ct. Int'l Trade 1990). The court held on summary judgment that the Customs Service properly classified imported merchandise as "other footwe......