Riddell, Inc. v. United States

  United States Court of Appeals
      for the Federal Circuit
                ______________________

                   RIDDELL, INC.,
                  Plaintiff-Appellant,

                           v.

                  UNITED STATES,
                  Defendant-Appellee.
                ______________________

                      2013-1384
                ______________________

   Appeal from the United States Court of International
Trade in No. 09-CV-0416 and 07-CV-0413, Senior Judge
Judith M. Barzilay.
                 ______________________

                Decided: June 20, 2014
                ______________________

    DANIEL J. GLUCK, Simon Gluck & Kane LLP, of New
York, New York, argued for plaintiff-appellant. With him
on the brief were CHRISTOPHER M. KANE and MARIANA DEL
RIO KOSTENWEIN.

     MARCELLA POWELL, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of New York, New York, argued for defendant-
appellee. With her on the brief were STUART F. DELERY,
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, of Washington, DC; and AMY M. RUBIN, Acting Assis-
tant Director, International Trade Field Office, of New
2                                         RIDDELL, INC.   v. US



York New York. Of counsel on the brief was MICHAEL W.
HEYDRICH, Office of the Assistant Chief Counsel, Intern-
tional Trade Litigation, United States Customs and
Border Protection, of New York, New York.
                 ______________________

    Before NEWMAN, LOURIE, and TARANTO, Circuit Judges.
TARANTO, Circuit Judge.
    Riddell, Inc., challenges the Court of International
Trade’s upholding of the classification of Riddell’s import-
ed football jerseys, pants, and girdles as “articles of ap-
parel” under chapters 61 and 62 of the Harmonized Tariff
Schedule of the United States (HTSUS). Riddell, Inc. v.
United States, 906 F. Supp. 2d 1355, 1368-69 (Ct. Int’l
Trade 2013). Riddell contends that the United States
Customs Service (now United States Customs and Border
Protection) should have classified the merchandise as
“sports . . . equipment” under subheading 9506.99.20
within chapter 95 of the HTSUS. We reject Riddell’s
claim to a chapter 95 classification. For the jerseys and
pants, we affirm the Customs classification under the
particular provisions within chapters 61 and 62 that
Customs identified. For the girdles, we conclude, as
Customs now agrees, that the proper apparel classifica-
tion is different from the one Customs initially identified.
                       BACKGROUND
    The nature of Riddell’s merchandise is not in dispute.
The jerseys, pants, and girdles that Riddell imported are
all designed to be worn, in conjunction with protective
pads (having both hard and soft components), during the
playing of football. As imported, though, none of the
merchandise contains such protective items.
    The pants, made of polyester and spandex, end just
below the knee and have elastic leg openings. They
contain four interior pockets to hold protective pads—two
RIDDELL, INC.   v. US                                      3



thigh pads and two knee pads. In tandem with a girdle,
the pants also help secure three additional pads around a
player’s waist—two hip pads and one tail pad. The pants
are tailored to wear with the protective pads.
    The jerseys, made of 100% polyester knit mesh, have
v-neck openings and short sleeves with elastic cuffs. The
shoulders, chest, and back are cut with just enough extra
room to accommodate shoulder pads while holding them
snugly to the body. The jerseys have substantial stitching
at the shoulders to withstand the impacts common in full-
contact football.
    The girdles, made of polyester, are worn beneath foot-
ball pants and extend from the waist to the thigh. They
have several internal pockets to hold hip and tail pads.
They function, together with the pants, to hold padding in
place.
     Customs classified all of the football jerseys, pants,
and girdles at issue here as articles of apparel under
either chapter 61 or chapter 62 of the HTSUS. Riddell
filed two protests under 19 U.S.C. § 1514, arguing that
the merchandise should have been classified as football
equipment under chapter 95 of the HTSUS. Customs
denied Riddell’s protests. Invoking 28 U.S.C. § 1581(a),
Riddell then filed two civil actions in the Court of Interna-
tional Trade to challenge the classifications. Because the
actions involved similar merchandise and the same core
issue of law, the Court of International Trade consolidat-
ed them.
    Riddell and the United States filed cross-motions for
summary judgment. The parties agreed about the nature
of the subject merchandise, but disagreed about the scope
of the relevant tariff provisions. Riddell argued that the
football jerseys, pants, and girdles are properly classified
as football equipment under chapter 95, entitled “Toys,
games and sports requisites; parts and accessories there-
4                                        RIDDELL, INC.   v. US



of.” Specifically, Riddell argued for classification under
subheading 9506.99.20, which covers the following:
    9506. Articles and equipment for general physical
    exercise, gymnastics, athletics, other sports (in-
    cluding table-tennis) or outdoor games, not speci-
    fied or included elsewhere in this chapter;
    swimming pools and wading pools; parts and ac-
    cessories thereof
    ***
    9506.99. Other:
    ***
    9506.99.20. Football, soccer and polo articles and
    equipment, except balls, and parts and accessories
    thereof
Articles under subheading 9506.99.20 enter the United
States duty free.
    The government argued that Riddell’s football jerseys,
pants, and girdles do not fall within the scope of chapter
95 but, as Customs had decided, instead come under
chapters 61 and 62, which are entitled, respectively,
“Articles of apparel and clothing accessories, knitted or
crocheted” and “Articles of apparel and clothing accesso-
ries, not knitted or crocheted.” Customs classified the
football jerseys under subheading 6110.30.30 (which has a
32% duty rate), the football pants under subheading
6114.30.30 (which has a 14.9% duty rate), and the football
girdles under subheading 6212.20.00 (which has a 20%
duty rate). Those subheadings cover:
    6110. Sweaters, pullovers, sweatshirts, waist-
    coats (vests) and similar articles, knitted or cro-
    cheted:
    ***
    6110.30. Of man-made fibers:
    ***
    6110.30.30. Other.
RIDDELL, INC.   v. US                                     5



    ***
    6114. Other garments, knitted or crocheted:
    ***
    6114.30. Of man-made fibers:
    ***
    6114.30.30. Other.
    ***
    6212. Brassieres, girdles, corsets, braces, sus-
    penders, garters and similar articles and parts
    thereof, whether or not knitted or crocheted:
    ***
    6212.20.00. Girdles and panty-girdles.
    On March 20, 2013, the Court of International Trade
granted summary judgment in favor of the government,
holding that “the subject merchandise does not satisfy the
definition of ‘football equipment’ under subheading
9506.99.20” and, therefore, the items are “properly classi-
fied as ‘articles of apparel’ under chapters 61 and 62.”
Riddell, 906 F. Supp. 2d at 1365, 1368. The Court of
International Trade found, as both parties agreed, that
Riddell’s football jerseys, pants, and girdles “are composed
of textile materials” and “do not come bundled with or
otherwise incorporate any form of padding or protective
inserts”—the pads being “separate articles entirely.” Id.
at 1366. Therefore, according to the Court of Internation-
al Trade, “[e]ven though Riddell’s pants, jerseys, and
girdles are specifically designed to accommodate various
forms of protective padding for playing organized football,
this design feature does not change their identity under
the HTSUS from ‘articles of apparel’ to ‘sports equip-
ment.’” Id.
    Riddell timely appealed to this court. Its primary ar-
gument is that its football jerseys, pants, and girdles all
constitute football equipment—or parts of or accessories
6                                         RIDDELL, INC.   v. US



to such equipment—within the meaning of chapter 95,
specifically subheading 9506.99.20. Riddell’s secondary
argument, with which the government agrees, is that the
girdles, if they must be classified as apparel and not
football equipment, come under subheading 6114.30.30
rather than, as Customs originally decided, subheading
6212.20.00.
    This court    has    jurisdiction   under   28   U.S.C.
§ 1295(a)(5).
                        DISCUSSION
    We review the Court of International Trade’s grant of
summary judgment without deference. CamelBak Prods.,
LLC v. United States, 649 F.3d 1361, 1364 (Fed. Cir.
2011).    The classification of merchandise under the
HTSUS proceeds in two steps. “The first concerns the
proper meaning of the tariff provisions, which is a ques-
tion of law reviewed de novo.” Lemans Corp. v. United
States, 660 F.3d 1311, 1315 (Fed. Cir. 2011). “The second
step concerns whether merchandise falls within a particu-
lar heading, which is a question of fact we review only for
clear error.” Id. Where, as here, “the nature of the mer-
chandise is undisputed, the inquiry collapses into a ques-
tion of law we review de novo.” Id.
    “The HTSUS scheme is organized by headings, each of
which has one or more subheadings; the headings set
forth general categories of merchandise, and the subhead-
ings provide a more particularized segregation of the
goods within each category.” Wilton Indus., Inc. v. United
States, 741 F.3d 1263, 1266 (Fed. Cir. 2013). “The classi-
fication of merchandise under the HTSUS is governed by
the principles set forth in the [General Rules of Interpre-
tation (GRIs)] and the Additional U.S. Rules of Interpre-
tation.” Id. We apply the GRIs in numerical order, see
CamelBak, 649 F.3d at 1364, so that if a particular Rule
resolves the classification issue, we do not look to subse-
quent ones, see Lemans, 660 F.3d at 1316.
RIDDELL, INC.   v. US                                     7



    GRI 1 provides that “classification shall be deter-
mined according to the terms of the headings and any
relative section or chapter notes.” This case involves
textile garments designed to be worn during the playing
of football, in conjunction with pads and other articles.
We must decide whether these garments are “articles of
apparel” under chapters 61 and 62 of the HTSUS or
“football . . . equipment” under subheading 9506.99.20 of
chapter 95. We have been asked before to make the
necessary, if not self-evident, distinction between articles
of apparel and sports equipment under the HTSUS. Our
precedent, as it has developed, supplies an approach to
making the distinction that decides this case.
      In Bauer Nike Hockey USA, Inc. v. United States, this
court addressed the proper classification of pants that not
only were “specially designed and intended for use only
while playing ice hockey” but, as imported, included “an
interior assembly of . . . hard plastic guards and soft
. . . foam padding” that collectively accounted for “about
80% of the total weight of the hockey pants.” 393 F.3d
1246, 1248 (Fed. Cir. 2004). We assumed without decid-
ing that the merchandise was prima facie classifiable as
apparel under chapter 62. Id. at 1251. But we concluded
that the protection-filled pants fell under heading 9506 as
sports equipment, stressing that “it [was] undisputed that
Bauer’s pants were specially designed and intended for
use only while playing ice hockey.” Id. Because the
provisional conclusion from applying GRI 1 was that the
protection-filled ice-hockey pants were “prima facie classi-
fiable under two or more headings,” we turned to another
interpretive Rule, namely, GRI 3(a)’s “rule of specificity.”
We concluded that the merchandise was most specifically
described by a provision within heading 9506 and, there-
fore, properly classified under that heading. Id. at 1251-
52.
    In Lemans, we provided further clarification of the
definition of “sports equipment” under heading 9506 and
8                                         RIDDELL, INC.   v. US



its relation to the apparel classifications. Lemans in-
volved motocross jerseys, motocross pants, and motorcycle
jackets. See 660 F.3d at 1318. We observed that all of the
merchandise at issue was “designed exclusively for use in
a particular sport,” id. at 1319, and contained foam pad-
ding that accounted for up to 50% of the total weight of
the jerseys, pants, or jackets. See id. at 1313-14. None-
theless, we held that the merchandise was prima facie
classifiable as apparel, noting that chapters 61 and 62 “do
not distinguish between apparel designed for general or
specific uses,” as indicated by their inclusion of “‘track
suits, ski-suits[,] and swimwear,’” and the merchandise
“does not contain protective or specialized features to the
same degree as the ‘crash helmets’ used by motorcycle
and auto racers.” Id. at 1317.
    We then concluded that the merchandise was not
prima facie classifiable as sports equipment under head-
ing 9506. Looking at the Explanatory Notes to heading
9506, we noted that the “vast majority of the examples in
those notes are items that a user would not wear on his or
her body,” but instead consist of “articles that are entirely
separate from the user,” “held by the user in his or her
hand,” or “are accessories fastened to a user.” Id. at 1321-
22. We noted that there were a “few examples” in the
Explanatory Notes of items “that a user actually would
wear,” but those “are almost exclusively used for protec-
tion and would complement, or be worn in addition to,
apparel worn for a particular sport.” Id. at 1322. We
concluded that “to the extent ‘sports equipment’ encom-
passes articles worn by a user, those articles are not
apparel-like and are almost exclusively protective in
nature.” Id. at 1320.
    Taken together, Lemans and Bauer provide a practi-
cal, common-sense approach to the problem before us.
The strong general rule is that “sports equipment” does
not include an article that, as imported, would be under-
stood as clothing, as a garment, based on the predomi-
RIDDELL, INC.   v. US                                     9



nance of textile material and the usual predominant
function of covering portions of the body. Such garments
may of course provide whatever “protection” is inherent in
simply covering the skin, e.g., against sun exposure or
abrasions. They also may have some features chosen to
fit specific activities during which they are intended to be
worn, without losing their character as clothing in ordi-
nary understanding. But they would not be “sports
equipment” even when designed exclusively for use in a
sport. A narrow exception exists for an item that, as
imported, contains a character-transforming amount of
material not ordinarily found in mere body-covering
clothing that functions to provide forms of protection not
inherent in common body coverings, e.g., protection
against impacts that readily propagate beneath the skin.
Importantly for the present case, what would clearly
constitute clothing, for lack of the transformative ele-
ments that were key in Bauer, does not become “sports
equipment” just because, after importation, it will be
used, even exclusively, in conjunction with non-clothing
impact-protecting equipment.
    Under this approach, Riddell’s football jerseys, pants,
and girdles are “articles of apparel” within the meaning of
chapters 61 and 62. In Bauer we assumed, and in
Lemans we held, that merchandise containing some
protective padding still fell within the scope of headings
in those chapters. Here, Riddell’s merchandise contains
no protective padding whatever; instead, the football
jerseys, pants, and girdles are “worn on the body and
composed entirely of textile material.” Riddell, 906 F.
Supp. 2d at 1368. Riddell’s merchandise does “not come
bundled with or otherwise incorporate any form of pad-
ding or protective inserts.” Id. at 1366. “The pads are
separate articles entirely.” Id.
    That Riddell’s merchandise has a specialized use—to
be worn along with, and to accommodate, protective pads
while playing football—does not make the football jerseys,
10                                        RIDDELL, INC.   v. US



pants, and girdles lose their character as “articles of
apparel.” As we said in Lemans, “[t]he fact that articles
are specialized or intended for specific purposes, such as
for sports, does not alone remove them from the category
of apparel.” 660 F.3d at 1317. Riddell’s merchandise, as
imported, has not been so transformed as to lose its
character as an item properly described as “apparel.” See
CamelBak, 649 F.3d at 1367-68 (sufficient “change in
identity” may remove item from an article-naming provi-
sion). Riddell’s shirts, pants, and girdles are apparel,
whatever they may come to be used with.
      Riddell’s merchandise does not constitute “football
. . . equipment” within the meaning of subheading
9506.99.20. If the apparel in Lemans, which contained
some protective padding, fell outside heading 9506, then
so does Riddell’s football apparel, which lacks protective
padding. Though “designed exclusively for use in a par-
ticular sport,” Riddell’s merchandise itself is not “almost
exclusively used for protection,” does not “complement”
apparel, and is not “worn in addition to[] apparel.” 660
F.3d at 1322. Riddell’s merchandise is apparel, used
along with protective equipment. And it makes no differ-
ence if (as Riddell argues) the football jerseys, pants, and
girdles are required to play football: a sports organization
can require use of what constitutes apparel just as it can
require use of non-apparel. For those reasons, Riddell’s
football jerseys, pants, and girdles are not “equipment”
within the scope of heading 9506.
    Nor do the items come within that provision as “parts”
of or “accessories” to equipment. Note 3 to chapter 95
states: “Subject to [N]ote 1 above, parts and accessories
which are suitable for use solely or principally with arti-
cles of this chapter are to be classified with those arti-
cles.” The referenced Note 1 specifically excludes from
chapter 95 “[s]ports clothing or fancy dress, of textiles, of
chapter 61 or 62.” That exclusion encompasses Riddell’s
football jerseys, pants, and girdles, which are within
RIDDELL, INC.   v. US                                     11



chapter 61 or 62. Riddell’s merchandise, because it is
outside the main category of sports “equipment” and is
within an “apparel” classification of chapter 61 or 62,
cannot constitute a part of or accessory to sports equip-
ment. Indeed, even when not accompanied by protective
pads, Riddell’s merchandise “performs its separate func-
tion without loss of any of its essential characteristics
and, whether separate or joined [to the pads], is complete
in itself.” ABB, Inc. v. United States, 421 F.3d 1274, 1277
(Fed. Cir. 2005). Riddell’s football jerseys, pants, and
girdles, even apart from padding, perform their function
as clothing. For that reason too, they are not parts or
accessories under heading 9506.
     Having rejected Riddell’s invocation of chapter 95, we
address Riddell’s narrow argument with respect to the
football girdles—that if they are “articles of apparel,” they
should be classified under subheading 6114.30.30 as
“[o]ther garments, knitted or crocheted,” rather than
under subheading 6212.20.00 as “[b]rassieres, girdles,
corsets, braces, suspenders, garters and similar articles
and parts thereof.” The government agrees with this
argument, apparently because nothing in the record
indicates that Riddell’s girdles provide body support,
which is the function the government has previously
identified as the “essential characteristic” of heading 6212
articles. 1 Van Dale Indus. v. United States, 18 C.I.T. 247,
252 (1994); see also Customs Ruling HQ 957469 at 6 (Nov.
7, 1995) (“Customs believes that . . . girdles [under head-
ing 6212] are commonly understood to be undergarments



    1   See Br. of Appellee at 27 (stating that the gov-
ernment “would not object to” classification under sub-
heading 6114.30.30); Oral Argument at 19:02-50 (the
government states that, because “these girdles are not
used for body support,” it does not “dispute [classification
under] 6114.30 based on the facts of this case”).
12                                        RIDDELL, INC.   v. US



which provide support.”). We therefore hold that the
girdles at issue should be classified under subheading
6114.30.30.
                       CONCLUSION
    We affirm the Court of International Trade’s judg-
ment with respect to the classification of Riddell’s football
jerseys under subheading 6110.30.30 and of Riddell’s
football pants under subheading 6114.30.30. We reverse,
however, with respect to Riddell’s football girdles, which
are properly classified under subheading 6114.30.30.
     No Costs.
     AFFIRMED IN PART, REVERSED IN PART