Deckers Outdoor Corp. v. United States , 714 F.3d 1363 ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
DECKERS OUTDOOR CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-1411
______________________
Appeal from the United States Court of International
Trade in No. 10-CV-0380, Judge Gregory W. Carman.
______________________
Decided: May 8, 2013
______________________
PATRICK D. GILL, Rode & Qualey, of New York, New
York, argued for plaintiff-appellant. With him on the
brief were WILLIAM J. MALONEY and ELEANORE KELLY-
KOBAYASHI.
BEVERLY A. FARRELL, Trial Attorney, Civil Division,
Commercial Litigation Branch, of New York, New York,
argued for defendant-appellee. On the brief were STUART
F. DELERY, Acting Assistant Attorney General, and
JEANNE E. DAVIDSON, Director, of Washington, DC;
BARBARA S. WILLIAMS, Attorney in Charge, and MARCELLA
POWELL, of New York, New York. Of counsel on the brief
2 DECKERS OUTDOOR CORPORATION v. US
was YALENA SLEPAK, Trial Attorney, Office of the Assis-
tant Chief Counsel, International Trade Litigation, Unit-
ed States Customs and Border Protection, of New York,
New York.
______________________
Before DYK, MAYER, and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge MAYER.
Dissenting opinion filed by Circuit Judge DYK.
MAYER, Circuit Judge.
Deckers Outdoor Corporation (“Deckers”) appeals a
final judgment of the United States Court of International
Trade (“Trade Court”) that held that pull-on boots were
properly classified under subheading 6404.19.35 (“Sub-
heading 19.35”) of the Harmonized Tariff Schedule of the
United States (“HTSUS”). See Deckers Outdoor Corp. v.
United States, 844 F. Supp. 2d 1324 (Ct. Int’l Trade 2012)
(“Trade Court Decision”). Because we conclude that the
merchandise at issue was correctly classified as “footwear
of the slip-on type” under Subheading 19.35, we affirm.
I. BACKGROUND
Deckers imported UGG® Classic Crochet boots into
the United States in 2006 and 2007. These boots have a
knit upper portion and a rubber sole. They do not have
laces, buckles, or other fasteners. The parties agree that
the merchandise in question “is sold as boots, that the
boots can be pulled on with the hands, and that the boots
extend above the ankle[.]” Trade Court Decision, 844 F.
Supp. 2d at 1327 (citations and internal quotation marks
omitted).
At liquidation, United States Customs and Border
Protection (“Customs”) classified the Classic Crochet boots
under Subheading 19.35, which covers:
Footwear with outer soles of rubber, plastics,
leather or composition leather and uppers of tex-
DECKERS OUTDOOR CORPORATION v. US 3
tile materials: Footwear with outer soles of rubber
or plastics: Other: Footwear with open toes or
open heels; footwear of the slip-on type, that is
held to the foot without the use of laces or buckles
or other fasteners, the foregoing except footwear of
subheading 6404.19.20 and except footwear hav-
ing a foxing or foxing-like band wholly or almost
wholly of rubber or plastics applied or molded at
the sole and overlapping the upper[.]
Subheading 19.35 (emphasis added).
Deckers filed a protest challenging the classification
of the merchandise, arguing that it should be reclassified
under HTSUS subheading 6404.19.90 (“Subheading
19.90”), a basket provision which covers “[f]ootwear with
outer soles of rubber . . . and uppers of textile materials”
that is “[v]alued [at] over $12/pair.” Merchandise classi-
fied under Subheading 19.35 was subject to a duty rate of
37.5% ad valorem, whereas merchandise classified under
Subheading 19.90 was subject to a duty rate of 9% ad
valorem. See Trade Court Decision, 844 F. Supp. 2d at
1326.
After Customs denied its protest, Deckers filed suit at
the Trade Court. Deckers argued that the term “footwear
of the slip-on type” as used in Subheading 19.35 only
encompasses footwear that does not extend above the
ankle. Id. at 1328. In support, Deckers cited to diction-
ary definitions of the term “slip-on” in which the only type
of footwear specifically mentioned was a “shoe.” See id. at
1332. Deckers also pointed to language from a Senate
Finance Committee Report on the Multilateral Trade
Negotiations of 1979, which stated that “[t]he final U.S.
position provides separate categories for boots and slip-on
footwear . . . .” S. Comm. on Fin., Agreements Being
Negotiated at the Multilateral Trade Negotiations in
Geneva—U.S. Int’l Trade Comm’n Investigation No. 332-
4 DECKERS OUTDOOR CORPORATION v. US
101, 96th Cong. 126 (Comm. Print 1979) (“Trade Negotia-
tions Report”).
The Trade Court rejected Deckers’ arguments and
granted the government’s motion for summary judgment.
The court noted that Footwear Definitions, Treas. Dec. 93-
88, 27 Cust. B. & Dec. No. 46, 1993 CUSBUL LEXIS 108,
at *24 (Oct. 25, 1993) (“Treasury Decision 93-88”), a
Customs publication designed to assist importers in
understanding classification requirements, specifically
provides that the term “slip-on” includes “[a] boot which
must be pulled on.” The court determined, after review-
ing several dictionary definitions of the term “slip-on,”
that “the absence of fasteners is determinative . . . in
whether an item is or is not a slip-on.” Trade Court
Decision, 844 F. Supp. 2d at 1332. The court concluded,
moreover, that the clause “without the use of laces or
buckles or other fasteners” that follows the phrase “foot-
wear of the slip-on type” in Subheading 19.35 “serves to
explain and elaborate upon” the meaning of the term
“slip-on.” Id. at 1331 (internal quotation marks omitted).
Because the Classic Crochet boots have no laces, buckles,
or other functional fasteners, the Trade Court concluded
that they were properly classified under Subheading
19.35. Id. at 1332-33.
Deckers then filed a timely appeal with this court.
We have jurisdiction under 28 U.S.C. § 1295(a)(5).
II. DISCUSSION
A. STANDARD OF REVIEW
We review de novo the Trade Court’s grant of sum-
mary judgment on tariff classifications. LeMans Corp. v.
United States, 660 F.3d 1311, 1315 (Fed. Cir. 2011);
Cummins Inc. v. United States, 454 F.3d 1361, 1363 (Fed.
Cir. 2006). A classification decision requires two underly-
ing steps: (1) determining the proper meaning of the tariff
provisions, which is a question of law; and (2) determining
DECKERS OUTDOOR CORPORATION v. US 5
the correct heading under which the disputed goods fall,
which is a question of fact. Outer Circle Prods. v. United
States, 590 F.3d 1323, 1325 (Fed. Cir. 2010). In reviewing
tariff classifications, we accord deference to a Customs’
classification ruling in proportion to its “power to per-
suade” under the principles articulated in Skidmore v.
Swift & Co., 323 U.S. 134 (1944). See United States v.
Mead Corp., 533 U.S. 218, 221 (2001) (explaining that a
Customs’ tariff classification “ruling is eligible to claim
respect according to its persuasiveness”).
B. THE HTSUS
The HTSUS is organized by headings and each of
these headings has one or more subheadings. Orlando
Food Corp. v. United States, 140 F.3d 1437, 1439 (Fed.
Cir. 1998). The headings contain “general categories of
merchandise,” whereas “the subheadings provide a more
particularized segregation of the goods within each cate-
gory.” Id. The tariff classification of merchandise under
the HTSUS is governed by the principles set forth in the
General Rules of Interpretation (“GRIs”). See LeMans,
660 F.3d at 1316. These GRIs must be applied in numeri-
cal order. Arko Foods Int’l, Inc. v. United States, 654 F.3d
1361, 1364 (Fed. Cir. 2011).
On appeal, Deckers asserts that Customs erred in
classifying the Classic Crochet boots as “footwear of the
slip-on type” under Subheading 19.35. In support, it
advances two principal arguments. First, it contends that
the term “footwear of the slip-on type” as used in Sub-
heading 19.35 only applies to shoes and does not encom-
pass boots. In Deckers’ view, “[f]ootwear of the slip-on
type is a category of footwear, specifically a sub-category
of shoes, but not a sub-category of boots.” Second, Deck-
ers asserts that because the Classic Crochet boots must be
“pulled on” with the hands, they do not qualify as “slip-on”
footwear.
6 DECKERS OUTDOOR CORPORATION v. US
We find neither of these arguments persuasive. The
statutory language, the definition of “slip-on” contained in
Treasury Decision 93-88, and the common and commercial
understanding of the term “slip-on,” all support the Trade
Court’s determination that the Classic Crochet boots fall
squarely within the scope of Subheading 19.35.
C. THE STATUTORY LANGUAGE
“[W]here Congress has clearly stated its intent in the
language of a statute, a court should not inquire further
into the meaning of the statute.” Pillowtex Corp. v. Unit-
ed States, 171 F.3d 1370, 1373 (Fed. Cir. 1999); see also
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992)
(“We have stated time and again that courts must pre-
sume that a legislature says in a statute what it means
and means in a statute what it says there.”). GRI 1 thus
recognizes that the first step in determining whether
goods have been properly classified is to examine the
language of the relevant HTSUS headings and subhead-
ings. See Arko Foods, 654 F.3d at 1364.
Deckers’ argument that boots are excluded from the
scope of Subheading 19.35 is contravened by the plain
language of the statute. Subheading 19.35 is not limited
to shoes, but instead covers “footwear of the slip-on type.”
Subheading 19.35 (emphasis added). As Deckers
acknowledges, the term “footwear” plainly encompasses
both shoes and boots. 1 See Br. of Appellant 8 (acknowl-
1 The explanatory notes to Chapter 64 make clear
that the term “footwear” includes boots. See Ch. 64 Gen.
Explanatory Note (A) (stating that “[f]ootwear may range
from sandals . . . to thigh-boots”). Although HTSUS
explanatory notes are not legally binding, they are in-
structive on the meaning of a particular tariff provision.
See Lynteq, Inc. v. United States, 976 F.2d 693, 699 (Fed.
Cir. 1992).
DECKERS OUTDOOR CORPORATION v. US 7
edging that the Classic Crochet boots are “footwear with
outer soles of rubber or plastic”). Certain HTSUS provi-
sions refer specifically to shoes. See HTSUS 6404.11
(referring to “tennis shoes,” “basketball shoes,” and “gym
shoes”); id. 6403.19.30 (referring to “golf shoes”). Other
HTSUS provisions refer specifically to boots. See id.
6402.12.00 (referring to “[s]ki-boots” and “snowboard
boots”). In drafting Subheading 19.35, however, Congress
did not use the term “shoe” or “boot,” but instead em-
ployed the broader term “footwear.” If Congress had
intended that Subheading 19.35 apply only to shoes,
rather than to various types of footwear, it could readily
have inserted the word “shoe” into the statute. See Rus-
sello v. United States, 464 U.S. 16, 23 (1983) (When
“Congress includes particular language in one section of a
statute but omits it in another section of the same Act, it
is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
(citations and internal quotation marks omitted)). In
arguing that Subheading 19.35 excludes boots, Deckers
excises the word “footwear” from the statutory text. See
Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (“In
construing a statute we are obliged to give effect, if possi-
ble, to every word Congress used.”); United States v.
Menasche, 348 U.S. 528, 538-39 (1955) (“The cardinal
principle of statutory construction is to save and not to
destroy,” and a court is obligated “to give effect, if possi-
ble, to every clause and word of a statute.” (citations and
internal quotation marks omitted)).
Deckers’ position is further undermined by Treasury
Decision 93-88, which specifically provides that the term
“slip-on” includes a pull-on boot:
A “slip-on” includes:
1. A boot which must be pulled on.
8 DECKERS OUTDOOR CORPORATION v. US
2. Footwear with elastic gores which must be
stretched to get it on or with elastic sewn into the
top edge of the fabric of the upper.
3. Footwear with a shoe lace around the top of the
upper which is clearly not functional, i.e., the lace
will not be tied and untied when putting it on or
taking it off.
It does not include any boot or shoe with any lac-
es, buckles, straps, snaps, or other closure, which
are probably closed, i.e., tied, buckled, snapped,
etc., after the wearer puts it on.
Treasury Decision 93-88, 1993 CUSBUL LEXIS, at *24-25
(emphasis added).
While the definitions contained in Treasury Decision
93-88 “are not to be construed as Customs rulings,” they
have been used by Customs since at least 1993 and are
specifically designed to assist importers “in better under-
standing classification requirements.” Id. at *1. The
Trade Court has previously determined that the footwear
definitions contained in Treasury Decision 93-88 are
“persuasive when read together with the tariff provision.”
Carrini, Inc. v. United States, 25 Ct. Int’l Trade 857, 863
(2001). Significantly, Customs has repeatedly classified
boots without laces or other fasteners as “footwear of the
slip-on type” under Subheading 19.35. See U.S. Customs
Serv., NY L85617 (June 27, 2005) (concluding that a
“women’s slip-on fashion boot” was properly classified
under Subheading 19.35); U.S. Customs Serv., NY
K88830 (Sept. 17, 2004) (concluding that a “women’s slip-
on boot” with “a predominately stretch knit textile mate-
rial upper” was properly classified under Subheading
19.35); U.S. Customs Serv., NY C88564 (June 15, 1998)
(concluding that a “women’s black, over the ankle height
pull-on, elasticized textile upper dress boot” was properly
classified under Subheading 19.35); U.S. Customs Serv.,
NY D81445 (Aug. 28, 1998) (concluding that a “woman’s
DECKERS OUTDOOR CORPORATION v. US 9
pull-on fashion boot” was properly classified under Sub-
heading 19.35). The consistency of Customs’ interpreta-
tion of the term “slip-on” serves to enhance the
persuasive power of that interpretation. See Dell Prods.
LP v. United States, 642 F.3d 1055, 1060 (Fed. Cir. 2011);
see also Warner-Lambert Co. v. United States, 407 F.3d
1207, 1209 (Fed. Cir. 2005) (explaining that the degree of
deference afforded a Customs’ classification depends on
the “consistency of the classification with earlier and later
pronouncements”).
Deckers does not dispute that the definition of “slip-
on” contained in Treasury Decision 93-88 expressly in-
cludes “[a] boot which must be pulled on.” It argues,
however, that the Trade Court erred in relying on this
definition because the footwear “industry does not consid-
er any type of boot, especially one that has to be pulled on,
to be of the slip-on type.” We disagree. As the Trade
Court correctly determined, the term “slip-on” can be used
to refer to both shoes and boots. See Trade Court Deci-
sion, 844 F. Supp. 2d at 1332-33 (“[I]t is clear that the
term ‘slip-on’ is commonly used to refer to both shoes and
boots. . . . [Deckers’] narrow reading of the term ‘slip-on’ is
unjustifiably cramped.”). When it was before the trial
court, the government provided several examples from
commercial websites demonstrating that footwear retail-
ers commonly refer to boots as “slip-ons.” The govern-
ment noted that the Shopzilla website advertises an
UGG® “slip-on” boot. The Orvis website specifically
states that “UGG® Slip-On Sheepskin Boots” are “Ugg’s
best-selling winter boots,” and the Zappos website states
that the UGG® Newbreak boot has “an easy slip-on
silhouette.” Similarly, the Robert Frost Fine Footwear
website describes the “Ugg Australia Ayer Slip-on Boot”
as “[a] classic pull-on boot” that can be taken “on and off
with ease.” Perhaps most significantly, the government
produced evidence showing that a search for the term
“slip-on” on the UGG® Australia official website “re-
10 DECKERS OUTDOOR CORPORATION v. US
turn[ed] results including over-the-ankle footwear such as
the Men’s Brockman, Men’s Leighton, Women’s Sundance
II, and Women’s Classic Mini.” Trade Court Decision, 844
F. Supp. 2d at 1329 (footnote omitted). Given that several
online retailers describe boots as “slip-on” footwear, we
reject Deckers’ assertion that the footwear industry does
not consider any type of boot to be “of the slip-on type.”
See LeMans, 660 F.3d at 1316 (“[W]e construe the terms
used in the headings and subheadings according to their
common and popular meaning, which may be drawn from
our own understanding, dictionaries and other reliable
sources.” (citations and internal quotation marks omit-
ted)); Rollerblade, Inc. v. United States, 282 F.3d 1349,
1352 (Fed. Cir. 2002) (“When the HTSUS does not define
a tariff term, the term receives its common and popular
meaning.” (citations and internal quotation marks omit-
ted)).
In support of its claim that the term “slip-on” only co-
vers shoes and excludes boots, Deckers relies heavily on
the definition of “slip-on” contained in The Complete
Footwear Dictionary 167 (2d ed. 2000). That lexicon
provides that a “slip-on” is “[a] plain but dressy pump
without lacings or other fastenings, worn by either men or
women. Any shoe without fastenings.” When it was
before the Trade Court, however, the government cited to
other dictionary definitions that define “slip-on” more
broadly. These definitions make clear that while the term
“slip-on” certainly includes shoes, it also encompasses
various other items, such as gloves, pull-on garments, and
girdles. See Trade Court Decision, 844 F. Supp. 2d at
1332 (noting that the items described as “slip-ons” in
various dictionaries include “a garment [that can] be
slipped on or off over the head,” a “pullover,” “a glove or
shoe without fastenings,” and “a garment ([such] as a
girdle) that one steps into and pulls up” (citations and
internal quotation marks omitted)). Because there are
competing dictionary definitions of the term “slip-on”—
DECKERS OUTDOOR CORPORATION v. US 11
and many of those definitions are not limited to shoes—
the Trade Court correctly declined to limit the term
“footwear of the slip-on type” to shoes. See Intercontinen-
tal Marble Corp. v. United States, 381 F.3d 1169, 1173
(Fed. Cir. 2004) (refusing to limit the term “marble” to its
“geological definition” where dictionary definitions stated
that marble had a geological definition, but also indicated
that the term had “a broader non-geological meaning”).
D. SLIP-ON FOOTWEAR
Deckers further contends that the Classic Crochet
boots do not qualify as “footwear of the slip-on type’”
under Subheading 19.35 because they cannot be “slipped
on,” but instead “must be pulled on with both hands.” We
do not find this reasoning persuasive. As discussed
previously, dictionary definitions make clear that the
term “slip-on” can include items such as gloves, pullover
garments, and girdles. See Trade Court Decision, 844 F.
Supp. 2d at 1332. Indisputably, a girdle is not an item
that can be put on without use of the hands. Likewise,
gloves and pullover garments are normally donned using
the hands. Given that several dictionary definitions of
the term “slip-on” describe items that must be pulled on
with the hands, we reject Deckers’ assertion that pull-on
footwear is excluded from the scope of Subheading 19.35. 2
2 Deckers cites to a Senate Finance Committee Re-
port on the Multilateral Trade Negotiations of 1979 which
states that “[t]he final U.S. position provides separate
categories for boots and slip-on footwear at a duty rate of
37.5 percent ad valorem.” Trade Negotiations Report at
126. Without more, however, this statement cannot
override the plain language of Subheading 19.35, which is
not limited to “shoes of the slip-on type,” but instead
applies to the broader category of “footwear of the slip-on
type.” As we have previously made clear, “clear evidence
of legislative intent [is] required to overcome the pre-
sumption that the terms in the tariff schedules carry their
12 DECKERS OUTDOOR CORPORATION v. US
See Trade Court Decision, 844 F. Supp. 2d at 1333 (“It
would be contrary to common sense and meaning to limit
the term ‘slip-on’ to footwear able to be put on or taken off
without using the hands, but to apply the term ‘slip-on’ to
other garments requiring use of the hands.”).
As noted previously, Subheading 19.35 covers “foot-
wear of the slip-on type, that is held to the foot without
the use of laces or buckles or other fasteners.” In the
Trade Court’s view, the relative clause that follows the
phrase “footwear of the slip-on type” is designed “to
explain and elaborate upon” what is meant by the term
“slip-on type.” Trade Court Decision, 844 F. Supp. 2d at
1331. The court explained that “[t]he words ‘that is’
which introduce the relative clause are directly equivalent
to the phrase id est, commonly abbreviated as ‘i.e.,’ and
may be rephrased as ‘in other words’ with no change in
meaning.” Id. at 1332. Thus, according to the Trade
Court, “footwear of the slip-on type” can be defined as
footwear that does not have laces, buckles, or other func-
tional fasteners. Id.
Deckers argues that this interpretation of Subheading
19.35 “strains logic and grammar.” In Deckers’ view, if
the relative clause “held to the foot without the use of
laces or buckles or other fasteners,” were designed to
explain what was meant by the term “footwear of the slip-
on type,” Congress would have inserted an additional
comma following the phrase “that is.” We agree with
commercial meanings.” Intercontinental Marble, 381 F.3d
at 1175 (citations and internal quotation marks omitted).
We note, moreover, that the focus of the committee report
relied upon by Deckers was on the fact that imports of
“rubber footwear” had increased dramatically between
1973 and 1978, and the report did not specifically address
the question of whether pull-on boots constitute a type of
slip-on footwear. See Trade Negotiations Report at 126.
DECKERS OUTDOOR CORPORATION v. US 13
Deckers that the meaning of Subheading 19.35 would
have been more pellucid had Congress added an addition-
al comma after the phrase “that is.” We note, however,
that defining the term “slip-on footwear” as footwear that
does not contain “laces or buckles or other fasteners” is
consistent with dictionary definitions which indicate that
the lack of fasteners is a characteristic feature of slip-on
items. 3 See New Oxford Am. Dictionary 1597 (2d ed.
2005) (stating that the adjective “slip-on” is used especial-
ly to refer to “shoes or clothes” that have “no (or few)
fasteners and [are] therefore able to be put on and taken
off quickly”); Webster’s Third New Int’l Dictionary 2144
(Unabridged ed. 1993) (defining “slip-on” as “an article of
clothing that is easily slipped on or off,” such as “a glove
or shoe without fastenings”); The Complete Footwear
Dictionary at 167 (stating that a “slip-on” is “[a] plain but
dressy pump without lacings or other fastenings”); Web-
ster’s New World Dictionary of the Am. Language 1340
(2d coll. ed. 1974) (stating that “slip-on” means “easily put
on or taken off, as shoes without laces or a garment to be
slipped on or off over the head”).
3 The dissent suggests that “[i]f Congress had
meant this subheading to cover all such footwear, it could
simply have written ‘footwear that is held to the foot
without the use of laces or buckles or other fasteners.’”
Post at 1. But in enacting the HTSUS, Congress recog-
nized that the HTSUS represents the collective adminis-
trative contributions of various U.S. Departments and
agencies, and that it reflects trade interests of parties in
the United States and throughout the world. Congress
enabled the Secretary of the Treasury to implement and
interpret the HTSUS, see, e.g., 19 U.S.C. § 1625, and it is
Customs’ interpretation that we address in this case.
14 DECKERS OUTDOOR CORPORATION v. US
Furthermore, Deckers’ proffered interpretation of the
term “slip-on footwear” would render other language in
Subheading 19.35 superfluous. Subheading 19.35 specifi-
cally includes “[f]ootwear with . . . open heels.” Items of
footwear that have open heels are, quite obviously, gener-
ally easy to step into without using the hands. Indeed,
the UGG® Australia official website depicts several types
of slippers, clogs, and “scuffs,” which have open heels and
which could therefore be readily put on without use of the
hands. See J.A. 165-78. If we were to accept Deckers’
argument that “slip-on” footwear is footwear that can be
stepped into without using the hands, then the language
in Subheading 19.35 referring to “footwear with . . . open
heels” would be rendered superfluous because such foot-
wear would already be included within the definition of
“footwear of the slip-on type.” When interpreting HTSUS
provisions, we must strive to give effect to every word in
the statutory text. See Marx v. Gen. Revenue Corp., 133
S. Ct. 1166, 1178 (2013) (explaining that “the canon
against surplusage is strongest when an interpretation
would render superfluous another part of the same statu-
tory scheme”); Corley v. United States, 556 U.S. 303, 314
(2009) (emphasizing that a “statute should be construed
so that effect is given to all its provisions, so that no part
will be inoperative or superfluous, void or insignificant”
(citations and internal quotation marks omitted)).
E. SUMMARY JUDGMENT
In a classification dispute, the grant of summary
judgment is appropriate where there is no genuine dis-
pute as to the nature of the merchandise and the classifi-
cation determination turns on the proper meaning and
scope of the relevant tariff provisions. Bausch & Lomb,
Inc. v. United States, 148 F.3d 1363, 1366 (Fed. Cir.
1998); see also Cummins, 454 F.3d at 1363 (emphasizing
that “when the nature of the merchandise is undisputed
. . . the classification issue collapses entirely into a ques-
tion of law”). Here, there were no genuine issues of
DECKERS OUTDOOR CORPORATION v. US 15
material fact regarding the salient physical characteris-
tics of the Classic Crochet boots. To the contrary, the
government had conceded that the boots had to be pulled
on with the hands. Thus, resolution of the parties’ dis-
pute centered on the meaning of the term “footwear of the
slip-on type,” a question of statutory interpretation. See
Bausch & Lomb, 148 F.3d at 1365 (“[S]ummary judgment
is appropriate when there is no genuine dispute as to the
underlying factual issue of exactly what the merchandise
is.”).
The Trade Court may examine many resources to as-
certain the common meaning or commercial understand-
ing of a particular tariff term. See Rocknel Fastener, Inc.
v. United States, 267 F.3d 1354, 1356-57 (Fed. Cir. 2001)
(“To ascertain the common meaning of a term, a court
may consult dictionaries, scientific authorities . . . and
lexicographic and other materials.” (citations and internal
quotation marks omitted)). Here, Deckers had ample
opportunity to submit evidence regarding the common
understanding of the term “footwear of the slip-on type”
when it submitted its opposition to the government’s
motion for summary judgment. Deckers provided the
trial court with various dictionary definitions of the term
“slip-on” and also submitted the deposition testimony of
Peter Young, a Deckers employee. Young stated that a
person would be unable to “slide” his or her foot into the
Classic Crochet boot, but would instead have to “pull” the
boot on. J.A. 96-97. Such testimony, however, was insuf-
ficient to create any genuine issues of material fact given
that the government had conceded that the Classic Cro-
chet boots were pulled on with the hands. 4 See Trade
Court Decision, 844 F. Supp. 2d at 1327.
4 Young also stated that he did not believe that a
pull-on boot could qualify as a “slip-on” because the terms
“pull-on” and “slip-on” are “contradictory.” J.A. 103. The
Trade Court had the opportunity to fully consider Young’s
16 DECKERS OUTDOOR CORPORATION v. US
Deckers asserts that if the case had proceeded to trial
it would have produced testimony from industry witness-
es who would have opined that the footwear “industry
does not consider any type of boot, especially one that has
to be pulled on, to be of the slip-on type.” Deckers fails,
however, to identify any of these purported industry
witnesses. Nor did Deckers offer any affidavits or decla-
rations from such witnesses when it was before the Trade
Court. Under such circumstances, Deckers’ unsupported
assertion that unnamed industry witnesses would have
testified that the footwear industry does not consider a
boot to be a “slip-on” is too speculative to raise any genu-
ine issue of material fact. See Davis v. Brouse McDowell,
L.P.A., 596 F.3d 1355, 1364 (Fed. Cir. 2010) (explaining
that “[a]n unsupported opinion . . . cannot and does not
deposition testimony before granting the government’s
motion for summary judgment. See Trade Court Decision,
844 F. Supp. 2d at 1333. The court determined, however,
that the dictionary definitions provided by the govern-
ment and Treasury Decision 93-88 provided a more per-
suasive interpretation of the term “slip-on footwear” in
Subheading 19.35.
The Trade Court also had the opportunity to consider
the deposition testimony of Stacey Kalkines, an import
specialist employed by Customs. Kalkines acknowledged
that no one from Customs had tried on a sample of the
Classic Crochet boot before classifying the boots under
Subheading 19.35. J.A. 116-17. Kalkines explained,
however, that Customs determines whether boots qualify
as “footwear of the slip-on type” by ascertaining whether
the boots have fasteners. Id. Customs could determine
whether a particular boot had fasteners “by a visual
examination without trying to put the boot on.” Id. at
116.
DECKERS OUTDOOR CORPORATION v. US 17
create a genuine issue of material fact”); Sitrick v.
Dreamworks, LLC, 516 F.3d 993, 1001 (Fed. Cir. 2008)
(emphasizing that “[c]onclusory expert assertions cannot
raise triable issues of material fact on summary judg-
ment”); see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986) (“Rule 56(e) itself provides that a party
opposing a properly supported motion for summary judg-
ment may not rest upon mere allegation or denials of his
pleading, but must set forth specific facts showing that
there is a genuine issue for trial.”).
III. CONCLUSION
Accordingly, the judgment of the United States Court
of International Trade is affirmed.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
DECKERS OUTDOOR CORPORATION,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2012-1411
______________________
Appeal from the United States Court of International
Trade in No. 10-CV-0380, Judge Gregory W. Carman.
______________________
DYK, Circuit Judge, dissenting.
This appeal requires us to determine whether the
phrase “footwear of the slip-on type, that is held to the
foot without the use of laces or buckles or other fasten-
ers,” in subheading 6404.19.35 of the Harmonized Tariff
Schedule of the United States (“HTSUS”), covers boots
that rise above the ankle and that must be pulled on
using the hands. The majority interprets the subheading
as covering any footwear “that is held to the foot without
the use of laces or buckles or other fasteners.” I respect-
fully disagree. If Congress had meant for this subheading
to cover all such footwear, it could simply have written
“footwear that is held to the foot without the use of laces
or buckles or other fasteners,” and omitted the words “of
the slip-on type.” It did not do so, suggesting that the
subheading is more limited, and in particular that the
2 DECKERS OUTDOOR CORPORATION v. US
words “of the slip-on type” are limiting. 1
In interpreting tariff provisions, we look to the com-
mon and commercial meaning of the terms involved.
“[T]ariff acts are generally to be construed according to
the commercial understanding of the terms employed,”
Swan v. Arthur, 103 U.S. 597, 598 (1881), so that
“[a]bsent legislative intent to the contrary, we construe
HTSUS terms according to their common and commercial
meanings, which are presumed to be the same,” Franklin
v. United States, 289 F.3d 753, 757 (Fed. Cir. 2002). The
term “footwear of the slip-on type” has a common and
commercial meaning that excludes boots of the type
involved here. In order to qualify as “footwear of the slip-
on type,” under the common and commercial definition,
an item of footwear must satisfy three limitations: it must
be a shoe (that is, not a high-cut boot); it must be easy to
slip on; and it must have few or no fasteners.
Both specialized and general-purpose dictionaries
support this definition of “footwear of the slip-on type.”
Two industry references define a “slip-on” as, respectively,
“[a]ny shoe without fastenings,” and “[a]ny shoe into which
the wearer merely slips the foot, held without benefit of
lacing, buckles[,] or other fastening.” See The Complete
Footwear Dictionary 167 (William A. Rossi ed., 2d ed.
2000) (emphasis added); The Dictionary of Shoe Industry
Terminology (Ruth J. Schachter ed., 1986) (emphasis
added). One general-purpose dictionary defines “slip-on”
1 “[A] statute should be construed so that effect is
given to all its provisions, so that no part will be inopera-
tive or superfluous, void or insignificant.” Corley v. United
States, 556 U.S. 303, 314 (2009) (quotation marks omit-
ted); see also Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992) (“[C]ourts must presume that a legislature
says in a statute what it means and means in a statute
what it says there.”).
DECKERS OUTDOOR CORPORATION v. US 3
as an adjective meaning “easily put on or taken off, as
shoes without laces,” or as a noun describing “a slip-on
shoe or garment.” Webster’s New World Dictionary of the
American Language 1340 (2d. college ed. 1984) (emphasis
added). Another general-purpose dictionary defines “slip-
on” as an adjective applied “esp[ecially to] shoes or
clothes,” and meaning “having no (or few) fasteners and
therefore able to be put on and taken off quickly”; the
same dictionary also defines “slip-on” as a noun describ-
ing “a shoe or garment that can be easily slipped on and
off.” The New Oxford American Dictionary 1597 (2d ed.
2005) (emphasis added). A third general-purpose diction-
ary defines “slip-on” either as “a glove or shoe without
fastenings,” or simply as “an article of clothing that is
easily slipped on or off.” Webster’s Third New Internation-
al Dictionary of the English Language Unabridged 2144
(2002) (emphasis added).
Furthermore, the term “shoe,” in its common and
commercial definition, excludes high-cut boots. One
specialized dictionary defines “shoe” as including “chiefly
low-cut footwear versus high-tops or boots,” while two
general-purpose dictionaries define “shoe” as, respective-
ly, a “covering for the foot . . . not reaching above the
ankle,” and a “durable covering for the human foot,
esp[ecially] one . . . reaching about to the ankle.” The
Complete Footwear Dictionary, supra, at 155 (emphasis
added); The New Oxford American Dictionary, supra, at
1566 (emphasis added); The American Heritage Dictionary
1132 (2d college ed. 1982). A third general-purpose dic-
tionary defines “shoe” more broadly, as “an outer covering
for the human foot usu[ally] made of leather,” but two of
its exemplary sub-definitions are limited to low-cut foot-
wear (“an outer foot covering reaching to the ankle or
thereabouts,” and “a low-cut outer foot covering—compare
boot, oxford”). Webster’s Third New International Diction-
ary, supra, at 2099 (emphasis added).
The government does not contest that these dictionary
4 DECKERS OUTDOOR CORPORATION v. US
definitions set forth the term’s common and commercial
meaning. Rather, the government emphasizes the fact
that several of the “shoe” definitions acknowledge that the
term sometimes designates an above-the-ankle boot. It is
apparent from the definitions in the record, however, that
this usage of “shoe” is uncommon or disfavored.
Having adopted this common and commercial defini-
tion of “footwear of the slip-on type,” it is clear that the
boots at issue in this appeal do not fall within subheading
6404.19.35. The government has conceded that the boots
are, indeed, “boots”; that they rise above the ankle; and
that “[t]o don the boots, a wearer must grip the top of the
woven textile upper with two hands . . . and pull the boot
up forcefully while adjusting the foot until the foot and
calf are securely ensconced.” See Deckers Outdoor Corp. v.
United States, No. 08-00410, slip op. at 2, 5-6 (Ct. Int’l
Trade Apr. 24, 2012) (emphasis added); United States Br.
2-3. The boots therefore fail two of the three criteria for
being “footwear of the slip-on type”: they are not shoes,
and they are not easy to slip on.
This interpretation of the statutory language does not
violate the rule against surplusage because it renders the
phrase “that is held to the foot without the use of laces or
buckles or other fasteners” surplus. In fact, these words
are not surplus, but rather serve to exclude shoes that are
easily slipped on but that have “few,” as opposed to “no,”
fasteners. See The New Oxford American Dictionary,
supra, at 1597 (defining “slip-on” as “having no (or few)
fasteners and therefore able to be put on and taken off
quickly” (emphasis added)). Nor, contrary to the majority,
does this reading of the statutory term “footwear of the
slip-on type, that is held to the foot without the use of
laces or buckles or other fasteners” render surplus the
separate clause of the same subheading that covers
“[f]ootwear with open toes or open heels.” While some
open-heel footwear may fall within the statutory term at
issue, other such footwear may have straps or other
DECKERS OUTDOOR CORPORATION v. US 5
fasteners holding the foot in place. Indeed, the govern-
ment’s own set of “Footwear Definitions,” which both the
government and the majority cite as authoritative in this
case, defines “open heeled shoes” as including any shoes
in which “all or part of the back of the wearer’s heel can
be seen”—a definition that clearly allows for shoes with a
rear strap or fastener. See Footwear Definitions, T.D. 93-
88, 27 Cust. B. & Dec. No. 46, at *15 (Oct. 25, 1993).
Finally, the majority urges that we should defer to the
definition of “slip-on” found in the government’s collection
of “Footwear Definitions.” According to this document, “[a]
‘slip-on’ includes . . . [a] boot which must be pulled on.”
See id. at *24. Presumably, this definition would include
cowboy boots, which can be exceptionally difficult to place
on the foot. As the majority concedes, however, the defini-
tions included in this document are not formal “Customs
rulings.” See id. at *1. As such, these definitions are
entitled only to Skidmore deference, notwithstanding the
length of time to which the agency has adhered to them.
See Kasten v. Saint-Gobain Performance Plastics Corp.,
563 U.S. __, __, 131 S. Ct. 1325, 1335-36 (2011) (citing
Skidmore v. Swift & Co., 323 U.S. 134 (1944) and United
States v. Mead Corp., 533 U.S. 218 (2001)); see also Dell
Prods. LP v. United States, 642 F.3d 1055, 1060 (Fed. Cir.
2011) (citing Mead). Under Skidmore deference, such
agency pronouncements are “eligible to claim respect
according to [their] persuasiveness.” See Mead, 533 U.S.
at 221; see also Skidmore, 323 U.S. at 140 (“The weight
[given to an agency’s non-definitive pronouncement] will
depend upon the thoroughness evident in [the agency’s]
consideration, the validity of its reasoning, its consistency
with earlier and later pronouncements, and all those
factors which give it power to persuade, if lacking power
to control.”). The document does not provide any reason-
ing for its definitions, but simply asserts by fiat that
“boot[s] which must be pulled on” are “slip-on[s].” See
Footwear Definitions, T.D. 93-88, 27 Cust. B. & Dec. No.
6 DECKERS OUTDOOR CORPORATION v. US
46, at *24. For the reasons discussed above, the govern-
ment’s interpretation of subheading 6404.19.35 is unper-
suasive.
In sum, the common and commercial meaning of the
term “footwear of the slip-on type, that is held to the foot
without the use of laces or buckles or other fasteners”
excludes boots that rise above the ankle and that are not
easy to slip on, such as the boots at issue in this appeal. I
respectfully dissent.