Totes, Inc. v. U.S., No. 95-1125

• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
• Writing for the Court: Before ARCHER, Chief Judge, NIES, and LOURIE; LOURIE
• Citation: 69 F.3d 495
• Decision Date: 24 October 1995
• Docket Number: No. 95-1125
• Parties: TOTES, INCORPORATED, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.

Page 495

69 F.3d 495 17 ITRD 1929 TOTES, INCORPORATED, Plaintiff-Appellant,
v.
The UNITED STATES, Defendant-Appellee. No. 95-1125. United States Court of Appeals,
Federal Circuit. Oct. 24, 1995.

Page 496

George W. Thompson, Neville, Peterson & Williams, New York City, argued for plaintiff-appellant. With him on the brief were John M. Peterson and Peter J. Allen.

Amy M. Rubin, Commercial Litigation Branch, Department of Justice, New York City, argued for defendant-appellee. With her on the brief were Frank W. Hunger, Assistant Attorney General, David M. Cohen, Director, and Joseph I. Liebman, Attorney in Charge, International Trade Field Office. Of counsel was Laura R. Siegal, Office of Assistant Chief Counsel, International Trade Litigation, U.S. Customs Service.

Before ARCHER, Chief Judge, NIES, and LOURIE, Circuit Judges.

LOURIE, Circuit Judge.

Totes, Incorporated appeals from the September 30, 1994 decision of the United States Court of International Trade granting the government's motion for summary judgment and holding that the United States Customs Service properly classified certain imported merchandise under subheading 4202.92.9020 of the Harmonized Tariff Schedule of the United States (1990) ("HTSUS"). Totes, Inc. v. United States, 865 F.Supp. 867 (Ct. Int'l Trade 1994). Because the court did not err in granting summary judgment, we affirm.

BACKGROUND

The "Totes Trunk Organizer" is a rectangular case used to organize and store items such as motor oil, tools, and jumper cables in an automobile trunk. The case is made of a liquid-impervious nylon fabric. It has a zippered top opening, two straps at the sides which form handles, and reinforced bottom seams. Velcro strips on the bottom surface allow the case to be secured to a carpeted surface in an automobile trunk. The case's interior may be divided into three discrete storage areas using dividers that snap into place. The exterior of the Trunk Organizer bears the name "totes AUTOMOBILE CLUB." Totes markets the product as part of its Auto Club line of automobile accessories, which also includes windshield ice scrapers, emergency lights, car window shades, and dashboard memo pads.

In November 1990 Totes imported Trunk Organizers from Hong Kong to the United States. Customs classified the merchandise as a "similar container" under subheading 4202.92.9020, HTSUS, subject to a duty rate of 20% ad valorem. That subheading covers, with emphasis:

Page 497

Trunks, suitcases, vanity cases, attache 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 backpacks, handbags, shopping bags, wallets, purses, map cases,

cigarette cases, tobacco pouches, tool bags, sports bags, bottle cases,

jewelry boxes, powder cases, cutlery cases and similar containers, of leather

or of composition leather, of plastic sheeting, of textile materials, of

vulcanized fiber, or of paperboard, or wholly or mainly covered with such

materials:

* * *

Other:

* * *

With outer surface of plastic

sheeting or of textile materials:

* * *

Other:

* * *

Other

With outer surface of

textile materials:

* * *

Other:

Of man-made

fibers.

Totes timely filed a protest against liquidation of the merchandise, which Customs denied. Totes then challenged Customs' classification determination in the United States Court of International Trade, arguing that the product should have been classified as a motor vehicle accessory under HTSUS subheading 8708.99.50. That subheading, which carries a duty rate of 3.1% ad valorem, reads in relevant part as follows:

Parts and accessories of the motor vehicles of headings 8701 to 8705:

* * *

Other parts and accessories:

* * *

Other:

* * *

Other:

* * *

Other.

Totes and the government cross-moved for summary judgment. Applying the principle of statutory construction known as ejusdem generis ("of the same kind"), the court determined that Totes' product served the essential purposes of "organization, holding, storage and protection of articles" similar to the exemplars listed under heading 4202, "especially jewelry boxes and cutlery cases that serve mainly to facilitate an organized separation, protection, storage or holding of jewelry or cutlery...." Totes, 865 F.Supp. at 872. Thus, the court held that Customs properly classified the product as a "similar container" under subheading 4202.92.9020, HTSUS. The court further determined that the item is excluded from classification under heading 8708 based on the Explanatory Notes to HTSUS Section XVII. ¹ The Explanatory Notes state that merchandise is excluded from classification as a part or accessory under any of the headings of Section XVII if the item is more specifically classifiable elsewhere in the HTSUS. Tool bags are listed in the Explanatory Notes as an example of merchandise that is more specifically classifiable under heading 4202 than under any of the headings of Section XVII. Heading 8708 is within Section XVII. The court reasoned, therefore, that items similar to tool bags, such as the Trunk Organizer, are "more specifically classifiable under the provisions for the bags, cases and similar containers in Heading 4202 even if they are principally used as motor vehicle parts or accessories within the purview of Heading 8708." Id. at 875. The court granted summary judgment for the government and dismissed the case.

Totes timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. Sec. 1295(a)(5) (1988).

DISCUSSION

We review the Court of International Trade's grant of summary judgment for correctness as a matter of law. Mita Copystar Am. v. United States, 21 F.3d 1079, 1082 (Fed.Cir.1994). The meaning of a tariff classification term is also a question of law,

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which we review de novo. Id. Determining whether merchandise comes within a particular tariff provision, as properly interpreted, is a question of fact. Marcel Watch Co. v. United States, 11 F.3d 1054, 1056 (Fed.Cir.1993). Customs' classification determination is, by statute, presumed to be correct. 28 U.S.C. Sec. 2639(a)(1) (1988). Therefore, as the party challenging the classification, Totes bears the burden of proof in this case. See id.; see also Mita Copystar, 21 F.3d at 1082.

Totes first argues that the Court of International Trade erred in determining that the merchandise is ejusdem generis with the exemplars named in subheading 4202.92.9020, HTSUS. Totes contends that the exemplars share the essential purpose or characteristic of being carried on the person or in a handbag, whereas the essential purpose of the Trunk Organizer is not to transport items but to organize and store items in an automobile trunk. Totes insists that, factually and legally, the present case resembles Sports Graphics, Inc. v. United States, 24 F.3d 1390 (Fed.Cir.1994), and that the trial court failed to follow our analysis in that case. The government maintains that the merchandise is ejusdem generis with the exemplars named in subheading 4202.92.9020 and thus is classifiable under that subheading. We agree with the government.

We have stated that the...