Humbug from the Federal Circuit

We have discussed the classification of so-called festive articles many times on this blog. See, for example here, here, and here. The last of those links goes to my analysis of the Court of International Trade's decision to classify a well-made Santa suit as articles of apparel rather as duty-free festive articles. The Federal Circuit has now affirmed that decision in Rubie Costume Company v. United States.

In terms of law, there is not much new in Rubies. The issue turns on whether a particularly well-made Santa suit is "fancy dress." If so, it is excluded from Chapter 95, which covers festive articles, by the action of Chapter 95, Note 1(e). "Fancy dress" is not defined in the tariff. The Federal Circuit did define it in a previous Rubies' case as encompassing costumes that are classifiable as wearing apparel. A costume is wearing apparel if it is not flimsy and poorly constructed. A costume is not flimsy if it has features like finished edges, zippers, inset panels, darts, and hoops.

Even though the merchandise is obviously a Santa costume that is obviously associated with the Christmas holiday, the well-sewn costume was sufficiently durable to be cleaned and worn multiple times. Based on its durability and construction, the Federal Circuit held it is fancy dress and, therefore, precluded from classification in Chapter 95.

So far so good. I have no qualms about the decision and generally like to see these things resolved with a fairly well-defined rule to be applied by importers, Customs & Border Protection, and the courts going forward. This also provides a decent road map for future exercises in tariff engineering. Future Santa suits will be less likely to feature linings, zippers, finished pockets, and other indicia of quality.

What I do want to focus on is an important piece of dicta in this opinion. On page 11, the Federal Circuit makes a shocking finding:

There is no dispute that the Santa Suit is a costume traditionally worn in conjunction with the celebration of Christmas, a festive occasion, to portray Santa Claus, a fictional jolly character that significantly contributes to the festivity of the occasion

Look, Christmas has no religious significance and little cultural weight for me. I don't care whether Santa is any more real than the Mongolian death worm. But doesn't this off hand statement about the fictional status of Santa fly in the face of the important legal precedent set in the bench trial depicted in the documentary film Miracle on 34th Street (1947)? That case established the legal principle of "Quis est verus, qui accipit mail," meaning roughly "He that receives mail is real." Also, the Federal Circuit has ignored the hard hitting investigative journalism of the New York Sun's 1897 in response to a reader inquiry from one Virginia O'Hanlon. While not necessary to resolve the matter before it, the Federal Circuit seems to have gone out on a limb to make a factual determination with significant cultural impact. My only hope is that the members of this particular three-judge panel are soon visited the specters of law clerks past, present and future who will show them the value of judicial restraint when it comes to shattering the hope and dreams of future litigants.

Now go get me that prize turkey from the window in the butcher shop.


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