On 4202: Legal Briefs, Boxer Briefs, and Boxer Dogs
Back when I was a young law clerk at the U.S. Court of International Trade, I was occasionally inspired to lobby my judge to insert a clever phrase or literary allusion into an otherwise dry opinion. I specifically recall trying to insert the phrase "second thwack at the piñata" where "second bite at the apple" would have been the more common usage. In a case involving the tariff classification of fruit preserves, I tried to convince the judge to use phrases like "the defendant is in a jam," "Customs squeezed the importer," "the fruits of this effort," etc. None of that made it into the published opinion.
It appears that Judge Katzmann of the U.S. Court of International Trade has a much more liberal view of drafting, or possibly a much more persuasive law clerk. I gather that from reading Quaker Pet Group, LLC v. United States. The decision opens with this scene:
The issue in the case is whether cloth pet carriers are classifiable as similar to sport and travel bags in HTSUS Heading 4202 or as other made up articles of textile in Heading 6307. What we are talking about is something like this:
This item clearly shares many characteristics of the basic gym bag, which would be classifiable in Heading 4202, which covers:
But, the item to be contained in this bag is not sweaty socks and wicking t-shirts. It is a living, breathing, and potentially annoying little dog. Does that matter?
It does, because of Additional U.S. Note 1 to Chapter 42, which states (emphasis added), “the expression ‘travel, sports and similar bags’ means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases,
camera cases, musical instrument cases, bottle cases and similar containers.” Because dogs and cats are not clothing, for this bag to be a travel, sports or similar bag, the contained pet must be "personal effects."
The meaning of "personal effects" is not clear except that it applies to inanimate objects generally worn or carried on one's person. Examples include keys, wallets, watches, and similar items. Coco the rambunctious schnauzer and Fluffy the aloof tabby are not similar items. According to Judge Katzmann, "Pets are living beings, and thus not things or items."
Looking at the items specifically mentioned in Heading 4202, one thing is clear: there are no trunks, bags, cases, or other containers in that list that are intended to transport, organize, carry and protect living creatures. Under the legal principle of ejusdem generis, when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed. The class of goods listed in 4202 is designed to help travelers, commuters, and others in transit tote their personal effects, whether that be legal briefs or boxer briefs, but not boxer dogs.
On this record, the Court was able to conclude as a matter of law that the pet carriers are not similar to the items listed in Heading 4202.
What remains to be done is figure out where these carriers are classified. Heading 4202 is now off the table. At this preliminary stage of the case, there is insufficient evidence before the Court to make a determination as to the correct classification. Consequently, one of two things are going to happen.
[CONFLICT WARNING: This case is being litigated by my law firm. And, I personally did the first successful litigation on this issue in a case called Firstrax, so what follows might be viewed as biased.]
The parties can continue with formal discovery in which the plaintiff will produce facts showing that the carriers are textile items. Then, plaintiff will move for summary judgment, produce that evidence to the Court and hopefully win the case. For the government to win, it will need to show that the carriers are not classifiable in 6307 either because they are not textile products or there is a better alternative classification. That could happen, I just don't happen to see it.
The alternative is that the parties will trade evidence until the government agrees that the carriers are textile products and that 6307 is the best classification other than its preferred 4202. At that point, the parties should be able to enter into an agreement to stipulate these cases in favor of the plaintiff. That might not happen if the government believes the Court of International Trade is wrong in its reading of 4202 and wants to appeal to the Federal Circuit, which I can only hope is packed full of pet lovers.
It appears that Judge Katzmann of the U.S. Court of International Trade has a much more liberal view of drafting, or possibly a much more persuasive law clerk. I gather that from reading Quaker Pet Group, LLC v. United States. The decision opens with this scene:
Catching sight of three tiny orphaned kittens wandering in a battlefield tent, President Abraham Lincoln directed Colonel Bowers of General Grant’s staff: “Colonel, I hope you will see that these poor little motherless waifs are given plenty of milk and treated kindly.” Some eighty years later, President Harry Truman is famously said to have remarked,“[i]f you want a friend in Washington, get a dog.” It would certainly have been beyond the contemplation of the 16th or 33rd Presidents that their animals might be categorized as items or personal effects. Yet, the determination of that categorization under the domestic tariff scheme is central to the question presented by the case before this court: how should cloth pet carriers be classified for the purposes of determining what tariff rate should apply to their importation?
The issue in the case is whether cloth pet carriers are classifiable as similar to sport and travel bags in HTSUS Heading 4202 or as other made up articles of textile in Heading 6307. What we are talking about is something like this:
Trunks, suitcases, vanity cases, attaché cases, briefcases, school satchels, spectacle cases, binocular cases, camera cases, musical instrument cases, gun cases, holsters and similar containers; traveling bags, insulated food or beverage 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 sheeting of plastics, of textile materials, of vulcanized fiber or of paperboard, or wholly or mainly covered with such materials or with paper:…
With outer surface of sheeting of plastic or of textile materials:...
Other…
But, the item to be contained in this bag is not sweaty socks and wicking t-shirts. It is a living, breathing, and potentially annoying little dog. Does that matter?
It does, because of Additional U.S. Note 1 to Chapter 42, which states (emphasis added), “the expression ‘travel, sports and similar bags’ means goods, other than those falling in subheadings 4202.11 through 4202.39, of a kind designed for carrying clothing and other personal effects during travel, including backpacks and shopping bags of this heading, but does not include binocular cases,
camera cases, musical instrument cases, bottle cases and similar containers.” Because dogs and cats are not clothing, for this bag to be a travel, sports or similar bag, the contained pet must be "personal effects."
The meaning of "personal effects" is not clear except that it applies to inanimate objects generally worn or carried on one's person. Examples include keys, wallets, watches, and similar items. Coco the rambunctious schnauzer and Fluffy the aloof tabby are not similar items. According to Judge Katzmann, "Pets are living beings, and thus not things or items."
Looking at the items specifically mentioned in Heading 4202, one thing is clear: there are no trunks, bags, cases, or other containers in that list that are intended to transport, organize, carry and protect living creatures. Under the legal principle of ejusdem generis, when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed. The class of goods listed in 4202 is designed to help travelers, commuters, and others in transit tote their personal effects, whether that be legal briefs or boxer briefs, but not boxer dogs.
On this record, the Court was able to conclude as a matter of law that the pet carriers are not similar to the items listed in Heading 4202.
What remains to be done is figure out where these carriers are classified. Heading 4202 is now off the table. At this preliminary stage of the case, there is insufficient evidence before the Court to make a determination as to the correct classification. Consequently, one of two things are going to happen.
[CONFLICT WARNING: This case is being litigated by my law firm. And, I personally did the first successful litigation on this issue in a case called Firstrax, so what follows might be viewed as biased.]
The parties can continue with formal discovery in which the plaintiff will produce facts showing that the carriers are textile items. Then, plaintiff will move for summary judgment, produce that evidence to the Court and hopefully win the case. For the government to win, it will need to show that the carriers are not classifiable in 6307 either because they are not textile products or there is a better alternative classification. That could happen, I just don't happen to see it.
The alternative is that the parties will trade evidence until the government agrees that the carriers are textile products and that 6307 is the best classification other than its preferred 4202. At that point, the parties should be able to enter into an agreement to stipulate these cases in favor of the plaintiff. That might not happen if the government believes the Court of International Trade is wrong in its reading of 4202 and wants to appeal to the Federal Circuit, which I can only hope is packed full of pet lovers.
Comments