Victoria's Secret: Halloween Edition
In 1989, with torches and pitchforks, Congress chased the Tariff Schedule of the United States away from our black and white villages, never to be seen again. Where did it go? What happened to its arcane rules like "chief use" and the "more than doctrine?" Unfortunately, we now know. Dispatches from the Court of Appeals for the Federal Circuit show that its unmarked grave is empty. Shuffling marks in the dirt lead to the Courthouse where the Federal Circuit has taken up and decided Victoria's Secret Direct, LLC v. United States.
This may be the final edition of a horror tale subtitled, "Rise of the TSUS." I have two prior postings on this case here and here. Sadly, the photo of the fit model used as demonstrative evidence has been removed. You should go back and read those posts.
The terrifying issue here is the correct tariff classification of knit tops for women that provide both body coverage and bust support, eliminating the need for a brassier. In the trade, these are know as "shelf bra camisoles."
The innocent and unsuspecting star of this tale is the importer, who wants them classified in Heading 6212 as brassieres and similar articles. The government has given up it initial position that the articles are t-shirts or tank tops of Heading 6109. Rather, it is arguing that the Court of International Trade's decision classifying these garments in the residual provision if Heading 6114 is correct.
This is where things get scary. Through incantations and divination, the majority of the Federal Circuit found that the garments have two distinct functions: providing support as a bra and providing coverage as a top. The issue comes down to whether garments with those two functions, that can be worn in public without layering on top, are brassiers, girdles, corsets, braces, suspenders, gaters or similar articles.
When faced with this kind of question, courts traditionally unleash their minions (i.e., law clerks) to employ a rule of statutory constructions called ejusdem generis, which sounds best when said with the Hungarian-inflected voice of Bella Lugosi. Under this rule, when a general term (here "similar articles") follows a list of specific examples, "similar articles" must share the unifying characteristic of the listed items. According to the Court of Appeals, this is a "common sense" assessment of the listed items. It is not intended to be an exercise of abstract logic or semantics.
Here, the Court found the unifying characteristic to be support of either the body (e.g., brassieres) or other garments (e.g., suspenders). Each, in their own way, help overcome the burden of gravity, if you know what I mean. And, that function is not diluted by the additional function of providing body coverage. Backless evening gowns, for example, apparently provide built-in support but are not considered to be support garments of Heading 6212.
Based on this, the Court found that the two garments at issue, while providing bust support, do not share the unifying characteristic of having support as the primary functionality. Rather, the garment is wearable in public without additional lawyers. That cannot be said about brassieres and suspenders, at least not in my neighborhood.
Consequently, the Court of Appeals rejected Victoria's Secret's and Lerner's challenge.
But, there was one more voice to be heard: Judge Reyna with another strong dissent. He sets the tone with the following opening:
Essentially, he is pointing the hubris of someone tinkering with forces they may not fully understand or be able to control. Lighting must have flashed about the Courthouse while the majority raised a multivolume document cobbled together of parts of various editions of the dead and discarded TSUS to the rooftop in an effort to cheat Congress.
According to the killjoy dissent, everyone agrees that the unifying characteristic of the items in Heading 6212 is that they provide support to a body part (or two) or to some other garment. The Court of International Trade found that the essential feature of the imported garments is to provide support. Judge Reyna would have found that conclusion of law (i.e., the unifying characteristic) and finding of fact (i.e., that the garments provide support) sufficient to find them classifiable as similar articles in Heading 6212, despite additional coverage and warmth functions.
Shouting "It's alive," the dissent accuses the majority of re-animating the discarded "more than doctrine" under which an article was excluded from a heading if it included non-subordinate features beyond those encompassed by the heading. [I noted this as an issue as far back as 2011 in this post.] In this case, the Court used the non-subordinate feature of serving as a top to overcome the similarity to bras. This is despite the "more than doctrine" supposed to have died with the TSUS in 1989.
Moreover, the Court--again according to the dissent--muddied the dark and turbulent waters further by inserting into the ejusdem generis analysis the notion of "paramount function" instead of "essential characteristic." By doing this, the Court requires that various characteristics be weighed in an effort to determine which is paramount. By doing so, the Court's analysis is inconsistent with prior case law on ejusdem generis.
You may be wondering, What about the evening gown? No problem for the dissent. To classify the evening gown as similar to a brassier or girdle, the Court would have to find that support is a core and indispensable element of the gown and that it does not have a more specific primary purpose. Apparently, he would find that coverage and adornment were the more specific primary purpose.
All of that, left the judge in the dissent roaming the halls with a rhetorical pitchfork and wooden stake (to mix my literary allusions).
Personally, I am not sure the evening gown issue is so easily dismissed. The analysis would be that the hypothetical dress performs a support function as an indispensable element of its design and use. That means it is prima facie classifiable in 6212 as a support garment. OK, but that does not take it out of whatever heading applies to evening gowns. That's probably Heading 6104. But that only gets you so far. Assuming both Headings are prima facie applicable, the next question is whether one provides a more specific description than the other. An argument can be made that a garment that provides support has specific requirements that are more difficult to satisfy than the reasonably generic designation of dress or top. In that case, the more specific description might be Heading 6212, which would be a win for Victoria.
But, I have done zero research on that analysis. There may be legal notes or other reasons it is wrong. It's not like a mistake in analysis can have a bad result, is it . . . .
The end . . . ?
This may be the final edition of a horror tale subtitled, "Rise of the TSUS." I have two prior postings on this case here and here. Sadly, the photo of the fit model used as demonstrative evidence has been removed. You should go back and read those posts.
The terrifying issue here is the correct tariff classification of knit tops for women that provide both body coverage and bust support, eliminating the need for a brassier. In the trade, these are know as "shelf bra camisoles."
The innocent and unsuspecting star of this tale is the importer, who wants them classified in Heading 6212 as brassieres and similar articles. The government has given up it initial position that the articles are t-shirts or tank tops of Heading 6109. Rather, it is arguing that the Court of International Trade's decision classifying these garments in the residual provision if Heading 6114 is correct.
This is where things get scary. Through incantations and divination, the majority of the Federal Circuit found that the garments have two distinct functions: providing support as a bra and providing coverage as a top. The issue comes down to whether garments with those two functions, that can be worn in public without layering on top, are brassiers, girdles, corsets, braces, suspenders, gaters or similar articles.
When faced with this kind of question, courts traditionally unleash their minions (i.e., law clerks) to employ a rule of statutory constructions called ejusdem generis, which sounds best when said with the Hungarian-inflected voice of Bella Lugosi. Under this rule, when a general term (here "similar articles") follows a list of specific examples, "similar articles" must share the unifying characteristic of the listed items. According to the Court of Appeals, this is a "common sense" assessment of the listed items. It is not intended to be an exercise of abstract logic or semantics.
Here, the Court found the unifying characteristic to be support of either the body (e.g., brassieres) or other garments (e.g., suspenders). Each, in their own way, help overcome the burden of gravity, if you know what I mean. And, that function is not diluted by the additional function of providing body coverage. Backless evening gowns, for example, apparently provide built-in support but are not considered to be support garments of Heading 6212.
Based on this, the Court found that the two garments at issue, while providing bust support, do not share the unifying characteristic of having support as the primary functionality. Rather, the garment is wearable in public without additional lawyers. That cannot be said about brassieres and suspenders, at least not in my neighborhood.
Consequently, the Court of Appeals rejected Victoria's Secret's and Lerner's challenge.
But, there was one more voice to be heard: Judge Reyna with another strong dissent. He sets the tone with the following opening:
The majority reaches its decision by rewriting the fundamental principles of a long established doctrine of statutory construction and by invoking an approach for classification of articles that this court soundly overruled. The majority’s analysis invokes a "sounds right to me" approach that is decidedly at odds with established rules of tariff classification interpretation established by law and followed by this court. For this and other reasons set forth below, I respectfully dissent.
Essentially, he is pointing the hubris of someone tinkering with forces they may not fully understand or be able to control. Lighting must have flashed about the Courthouse while the majority raised a multivolume document cobbled together of parts of various editions of the dead and discarded TSUS to the rooftop in an effort to cheat Congress.
According to the killjoy dissent, everyone agrees that the unifying characteristic of the items in Heading 6212 is that they provide support to a body part (or two) or to some other garment. The Court of International Trade found that the essential feature of the imported garments is to provide support. Judge Reyna would have found that conclusion of law (i.e., the unifying characteristic) and finding of fact (i.e., that the garments provide support) sufficient to find them classifiable as similar articles in Heading 6212, despite additional coverage and warmth functions.
Shouting "It's alive," the dissent accuses the majority of re-animating the discarded "more than doctrine" under which an article was excluded from a heading if it included non-subordinate features beyond those encompassed by the heading. [I noted this as an issue as far back as 2011 in this post.] In this case, the Court used the non-subordinate feature of serving as a top to overcome the similarity to bras. This is despite the "more than doctrine" supposed to have died with the TSUS in 1989.
Moreover, the Court--again according to the dissent--muddied the dark and turbulent waters further by inserting into the ejusdem generis analysis the notion of "paramount function" instead of "essential characteristic." By doing this, the Court requires that various characteristics be weighed in an effort to determine which is paramount. By doing so, the Court's analysis is inconsistent with prior case law on ejusdem generis.
You may be wondering, What about the evening gown? No problem for the dissent. To classify the evening gown as similar to a brassier or girdle, the Court would have to find that support is a core and indispensable element of the gown and that it does not have a more specific primary purpose. Apparently, he would find that coverage and adornment were the more specific primary purpose.
All of that, left the judge in the dissent roaming the halls with a rhetorical pitchfork and wooden stake (to mix my literary allusions).
Personally, I am not sure the evening gown issue is so easily dismissed. The analysis would be that the hypothetical dress performs a support function as an indispensable element of its design and use. That means it is prima facie classifiable in 6212 as a support garment. OK, but that does not take it out of whatever heading applies to evening gowns. That's probably Heading 6104. But that only gets you so far. Assuming both Headings are prima facie applicable, the next question is whether one provides a more specific description than the other. An argument can be made that a garment that provides support has specific requirements that are more difficult to satisfy than the reasonably generic designation of dress or top. In that case, the more specific description might be Heading 6212, which would be a win for Victoria.
But, I have done zero research on that analysis. There may be legal notes or other reasons it is wrong. It's not like a mistake in analysis can have a bad result, is it . . . .
The end . . . ?
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