Victoria's Secret Direct, LLC v. United States , 769 F.3d 1102 ( 2014 )

United States Court of Appeals
for the Federal Circuit
______________________
VICTORIA'S SECRET DIRECT, LLC,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-1468
______________________
Appeal from the United States Court of International
Trade in No. 07-CV-0347, Chief Judge Timothy C.
Stanceu.
---------------------------------
LERNER NEW YORK, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-1469
______________________
2 VICTORIA'S SECRET DIRECT, LLC v. US
Appeal from the United States Court of International
Trade in No. 07-CV-0361, Chief Judge Timothy C.
Stanceu.
______________________
Decided: October 16, 2014
______________________
FRANCES P. HADFIELD, Grunfeld, Desiderio, Lebowitz,
Silverman & Klestadt LLP, of New York, New York,
argued for plaintiffs-appellants. With her on the brief
were ALAN R. KLESTADT and ROBERT B. SILVERMAN. Of
counsel was ROBERT FLEMING SEELY.
BEVERLY A. FARRELL, Trial Attorney, International
Trade Field Office, Commercial Litigation 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, Director, and AMY M.
RUBIN, Acting Assistant Director.
______________________
Before MOORE, REYNA, and TARANTO, Circuit Judges.
Opinion for the court filed by Circuit Judge TARANTO.
Dissenting Opinion filed by Circuit Judge REYNA.
TARANTO, Circuit Judge.
These related actions, which the Court of Internation-
al Trade tried together, require the classification of cer-
tain clothing under the Harmonized Tariff Schedule of the
United States (HTSUS). Specifically at issue are the Bra
Top, which is imported by Victoria’s Secret Direct, LLC,
and the Bodyshaper, which is imported by Lerner New
York, Inc. Both are sleeveless garments, made of knit
fabric, worn as tops. Both are designed for two purposes,
body coverage and bust support, providing enough of each
VICTORIA'S SECRET DIRECT, LLC v. US 3
for a wide range of women to wear them in a wide range
of public settings without needing a garment on top or a
separate brassiere underneath. The Court of Interna-
tional Trade classified them under heading 6114 of the
HTSUS, which covers “[o]ther garments, knitted or cro-
cheted.” Lerner New York, Inc. v. United States, 908 F.
Supp. 2d 1313 (Ct. Int’l Trade 2013) (“Lerner”); Victoria’s
Secret Direct, LLC v. United States, 908 F. Supp. 2d 1332(Ct. Int’l Trade 2013) (“Victoria’s Secret”).
Victoria’s Secret and Lerner contend that the gar-
ments should have been classified under heading 6212,
which covers “[b]rassieres, girdles, corsets, braces, sus-
penders, garters and similar articles and parts thereof.”
(Emphasis added). We reject classification of these items
under heading 6212. The Bra Top and Bodyshaper are
not “similar articles” under heading 6212 because they do
not possess the unifying characteristics of the listed items
in that heading. In this appeal, once heading 6212 is
ruled out, the Bra Top and the Bodyshaper must be
classified under heading 6114. And once heading 6114 is
chosen, there is no dispute about which subheading
applies to each garment. We therefore affirm the judg-
ment of the Court of International Trade.
BACKGROUND
A
Both Victoria’s Secret’s Bra Top and Lerner’s Body-
shaper were designed to be a combination of two gar-
ments: a camisole, which is similar to a tank top in
covering the body from the waist to above the bust, but
generally with narrower shoulder straps and a lower
neckline; and a brassiere. The Bra Top and the Body-
shaper both contain a “shelf bra”: an interior layer of
fabric—whose upper edge is attached to the camisole and
whose lower edge is an elastic band not attached to the
camisole—that provides bust support, though to a lesser
degree than many (though not all) brassieres. See, e.g.,
4 VICTORIA'S SECRET DIRECT, LLC v. US
Victoria’s Secret at 1339 n.7. This combination garment is
“known in the apparel industry as a ‘shelf bra camisole,’”
a single garment designed so that many women will wear
it in ordinary public settings without a layering garment
on top or a separate brassiere underneath. Id. at 1340,
1343; Lerner at 1321, 1323.
“A shelf bra camisole is designed for two purposes,
coverage and support.” Victoria’s Secret at 1343; Lerner
at 1323. As to coverage, it has not been disputed here
that the Bra Top and the Bodyshaper cover portions of the
wearer’s upper body for warmth and modesty. See, e.g.,
Victoria’s Secret J.A. 746 (plaintiffs’ joint, post-trial
proposed findings of fact, recognizing that both products
are “garment[s] worn above the waist” whose “function . . .
is to provide modesty or warmth”). The Court of Interna-
tional Trade made findings to that effect, stating that
“[t]he uncontested facts establish that the [Bra Top and
the Bodyshaper] provide[] partial covering of the wearer’s
torso for warmth and modesty.” Victoria’s Secret at 1355;
Lerner at 1327; see also Lerner at 1321 (“One of the pur-
poses of the Bodyshaper is to provide modesty to the
wearer.”). The degree of coverage is more than that
provided by a “brassiere,” as the term is ordinarily used,
and the coverage is sufficient that the garment is de-
signed generally to be worn in public without layers over
the garment. See Victoria’s Secret at 1341 (“Victoria’s
Secret markets the Bra Top as a wardrobe ‘essential’ that
can be worn by itself as a top.”); Lerner at 1321 (“The
Bodyshaper is intended to be worn in public.”).
As to body support, the parties disputed the degree to
which—though not the fact that—the Bra Top and the
Bodyshaper serve that purpose. Ultimately, the Court of
International Trade found that the Bra Top and the
Bodyshaper are “designed to provide support to the bust
of the wearer” and in fact “provide[] a certain degree of
such support when worn.” Victoria’s Secret at 1344;
Lerner at 1324. The court found that, for both products,
VICTORIA'S SECRET DIRECT, LLC v. US 5
the “cup, underbust band, and straps all work together to
provide support to the wearer’s bust” “in a manner identi-
cal to that of soft-cup brassieres.” Victoria’s Secret at
1343–44; Lerner at 1323. Because the garments provide
some level of built-in support, “a separate brassiere
. . . need not be worn underneath” the Bra Top or the
Bodyshaper. Victoria’s Secret at 1343; Lerner at 1323.
Victoria’s Secret and Lerner, in marketing the Bra
Top and Bodyshaper, emphasized the dual purposes of
coverage and support. For example, the Court of Interna-
tional Trade found that “‘[m]ost important’ to Victoria’s
Secret, from ‘a merchandising perspective,’ is that the Bra
Top provides the wearer ‘[t]he support of a bra and the
use of a top in one.’” Victoria’s Secret at 1341; see also id.at 1341–42 (“Victoria’s Secret brought the Bra Top into its
assortment ‘because it was a top that provided support in
lieu of a bra.’”). Similarly, the court found that “Lerner’s
website marketing materials for the Bodyshaper depict
the garment being worn with pants or a skirt, and often
with no layering garment being worn over the Bodyshap-
er,” Lerner at 1320, and Lerner also identifies the “shelf-
bra” aspect in marketing the Bodyshaper, Lerner J.A.
631.
B
Lerner imported a shipment of Bodyshapers in 2005,
and Victoria’s Secret imported a shipment of Bra Tops in
2006. The Bureau of Customs and Border Protection
(CBP) classified Victoria’s Secret’s Bra Tops under sub-
heading 6109.10.00 of the HTSUS, which has a 16.5%
duty rate and covers “T-shirts, singlets, tank tops and
similar garments, knitted or crocheted: Of cotton.” On the
other hand, CBP classified Lerner’s Bodyshapers under
subheading 6114.30.10, which has a 10.8% duty rate. The
Explanatory Notes to the HTSUS describe heading
6114—which reads, “Other garments, knitted or cro-
cheted”—as a residual provision that “covers knitted or
6 VICTORIA'S SECRET DIRECT, LLC v. US
crocheted garments which are not included more specifi-
cally in the preceding headings of this Chapter.” Explan-
atory Note 61.14.
Victoria’s Secret and Lerner each protested under 19
U.S.C. § 1514, and CBP denied both protests. On Novem-
ber 21, 2007, the companies filed separate suits in the
Court of International Trade, each contending that its
merchandise should have been classified under subhead-
ing 6212.90.00, which has a 6.6% duty rate and reads:
6212: Brassieres, girdles, corsets, braces, sus-
penders, garters and similar articles and parts
thereof, whether or not knitted or crocheted:
***
6212.90.00: Other.
In the alternative, the two companies argued for classifi-
cation under heading 6114.
The Court of International Trade—“[d]ue to the pres-
ence of common issues of fact,” Victoria’s Secret at 1337;
Lerner at 1317—tried the cases together during a three-
day bench trial. On May 1, 2013, the court issued an
opinion and judgment in each case, classifying the Bra
Top and the Bodyshaper under the residual garment
provision, heading 6114. The court’s analysis in each
opinion proceeded in three steps, considering, in turn,
whether the merchandise should be classified under the
tank-top provision (heading 6109), the brassiere provision
(heading 6212), and the residual garment provision
(heading 6114).
The court first rejected the government’s argument
that the garments should be classified under heading
6109 as “tank tops” or as an article “similar” to “T-shirts,
singlets, [and] tank tops.” Victoria’s Secret at 1351; see
Lerner at 1325–26. The government does not appeal the
court’s determination that the Bra Top and the Body-
VICTORIA'S SECRET DIRECT, LLC v. US 7
shaper are not properly classified under heading 6109.
That heading therefore is not at issue in this appeal.
The Court of International Trade next addressed the
brassiere provision, heading 6212, concluding that neither
the Bra Top nor the Bodyshaper is “a garment of a type
that is properly classified under heading 6212, HTSUS,
being dissimilar to the garments listed in the article
description with respect to the essential characteristic
and as to purpose.” Victoria’s Secret at 1355; Lerner at
1328. The court examined the text of the heading, finding
that “[a]ll of the exemplars in the heading 6212 article
description—brassieres, girdles, corsets, braces, suspend-
ers, and garters—have as their essential characteristic
and purpose either support of a part of the body or sup-
port of a garment.” Victoria’s Secret at 1354; Lerner at
1327. Turning to the merchandise at issue, the court then
found that, although the Bra Top and the Bodyshaper do
“provide[] bust support,” “it would be inconsistent with
facts the court found in this case to conclude that support
is the essential characteristic or purpose of” either gar-
ment. Victoria’s Secret at 1354; Lerner at 1327 (emphasis
in original in both opinions). The court added that it
could not conclude that either the Bra Top or the Body-
shaper “on the whole is ‘similar’ to a brassiere or to any
other garment or article named in the heading.” Victo-
ria’s Secret at 1355; Lerner at 1328 (emphasis in original
in both opinions). The court therefore rejected classifica-
tion of the merchandise under heading 6212.
Having found classification improper under the tank-
top provision and the brassiere provision, the Court of
International Trade classified the Bra Top and the Body-
shaper under particular subheadings within heading
6114, the residual garment provision. Because the Bra
Top is a blend of 95% cotton and 5% spandex, the court
classified it under subheading 6114.20.00, which has a
10.8% duty rate for garments that come under heading
6114 and are made “[o]f cotton.” Victoria’s Secret at
8 VICTORIA'S SECRET DIRECT, LLC v. US
1359–60. Because the Bodyshaper is a blend of two
synthetic fibers, nylon and spandex, the court classified it
under subheading 6114.30.10, which has a 28.2% duty
rate for garments that come under heading 6114 and
consist of “[t]ops” “[o]f man-made fibers.” Lerner at 1332.
Victoria’s Secret and Lerner timely appealed to this
court, each arguing that its respective shelf bra camisole
is “similar” to the items listed in heading 6212—
“[b]rassieres, girdles, corsets, braces, suspenders, [and]
garters”—and should therefore be classified as a “similar
article[]” under the heading. This court has jurisdiction
under 28 U.S.C. § 1295(a)(5).
DISCUSSION
“Proper classification of goods under the HTSUS en-
tails first ascertaining the meaning of specific terms in
the tariff provisions and then determining whether the
subject merchandise comes within the description of those
terms.” Millenium Lumber Distrib. Ltd. v. United States,
558 F.3d 1326, 1328 (Fed. Cir. 2009). The first step
presents an issue of law decided here de novo, the second
an issue of fact subject to clear-error review. See 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 Prods., LLC v. United States, 649 F.3d 1361,
1364 (Fed. Cir. 2011), so that if a particular Rule resolves
the classification issue, we do not look to subsequent
Rules, see Lemans Corp. v. United States, 660 F.3d 1311,
1316 (Fed. Cir. 2011).
VICTORIA'S SECRET DIRECT, LLC v. US 9
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 two
shelf-bra camisoles—Victoria’s Secret’s Bra Top and
Lerner’s Bodyshaper—each a single garment designed for
two purposes, coverage and support, and generally worn
in public without need for a layering garment on top or a
separate brassiere underneath. Victoria’s Secret at 1340,
1343; Lerner at 1321, 1323. We must decide if these
garments are “similar articles” under heading 6212 of the
HTSUS, which covers “[b]rassieres, girdles, corsets,
braces, suspenders, garters and similar articles.”
The parties agree that the term “similar” in this case
expressly invokes the interpretive principle of ejusdem
generis, and we proceed on that premise. 1 What is re-
quired is identification of the unifying properties of the
items listed in heading 6212, an issue of heading interpre-
tation that is a question of law. This is a matter of com-
mon-sense assessment of the particular list and what
unifies the items in that list—which may be the presence
of certain properties and the absence of others. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 207–08 (2012) (“Consider the
listed elements, as well as the broad term at the end, and
ask what category would come into the reasonable per-
son’s mind.”); see also 2A Norman Singer & J.D. Shambie
Singer, Sutherland Statutory Construction § 47:18 (7th
ed. 2007) (ejusdem generis “rests . . . on practical insights
about everyday language usage which guide our general
1 When a general term ends a list of items in a
statute, one circumstance in which the ejusdem generis
principle does not apply to construing the general term is
when the items “do not fit into any kind of definable
category.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 209 (2012).
10 VICTORIA'S SECRET DIRECT, LLC v. US
understanding about when two things are alike or differ-
ent” and is not “merely an abstract exercise in semantics
and formal logic”). Applying the phrase “and similar
articles” to the merchandise at issue, then, requires
determining whether the merchandise, considering all of
its features, shares the unifying characteristics of the
particular heading.
Avenues in Leather, Inc. v. United States, 178 F.3d
1241 (Fed. Cir. 1999), expresses this approach. “[F]or any
imported merchandise to fall within the scope of the
general term or phrase, the merchandise must possess the
same essential characteristics or purposes that unite the
listed examples preceding the general term or phrase.”
Id. at 1244. The first step is to “consider the common
characteristics or unifying purpose of the listed exemplars
in a heading.” Id. The second is to consider the merchan-
dise at issue with the identified unifying characteristics
(or purpose) in mind. Classification of the merchandise
within the heading “is appropriate only if” the merchan-
dise shares the heading’s unifying characteristics, and one
way merchandise would fail to do so is by having “a more
specific primary purpose that is inconsistent with the
listed exemplars.” Id.Avenues in Leather confirms what is clear as a matter
of common sense: the unifying characteristics may consist
of both affirmative features and limitations. The refer-
ence to the merchandise’s “primary purpose” as incon-
sistent with a particular heading’s list recognizes that
merchandise may well share affirmative features of the
heading’s list but have other features that then defeat
“similarity”—necessarily meaning that the unifying
characteristics of the heading’s list include a limitation
that excludes such other features (which may depend on
their prominence). And, indeed, in referring to a purpose
of the merchandise that is “inconsistent with” a heading’s
list, what the court in Avenues in Leather cited were cases
that involved purposes that readily could be added to the
VICTORIA'S SECRET DIRECT, LLC v. US 11
affirmative functions of the listed items. The additional
purpose of the merchandise at issue in those cases could
be deemed “inconsistent” only because a limitation on
function or purpose was among the heading’s unifying
characteristics. Id. at 1244, citing SGI, Inc. v. United
States, 122 F.3d 1468, 1472 (Fed. Cir. 1997) (heading
covering a variety of cases did not cover coolers for storing
and carrying food or beverages); Sports Graphics, Inc. v.
United States, 24 F.3d 1390, 1392–93 (Fed. Cir. 1994)
(similar for pre-HTSUS heading of Tariff Schedule of the
United States (TSUS)). The court’s observation that the
“analysis must consider the imported merchandise as a
whole” reinforces the point: even if the merchandise at
issue contains certain features shared by those listed in a
heading, the presence of other features in the merchan-
dise “as a whole” may negate similarity. Avenues in
Leather, 178 F.3d at 1246.
What characteristics unify a heading’s list—including
what features are present in the listed items and what
limits there are on the presence of other features—
depends on the particular heading. For heading 6212, at
issue here, we conclude that what unifies the list is that
all of the listed items have support as their paramount
function (whether for the body or for some other garment).
“Brassieres, girdles, corsets, braces, suspenders, [and]
garters” all share that characteristic. They provide body
or other-garment support and do so as their paramount
function; in particular, the primacy of that function is not
overridden by an additional outerwear coverage function
so significant as to dominate or even to be of roughly the
same importance as the support function. This is a mat-
ter of common-sense interpretation of the ordinary mean-
ing of the terms of the heading, which confirms the
limitation as well as the positive functionality. And the
use of the full term “similar articles” in heading 6212
indicates the need to compare the entire article at issue to
those listed in the heading to determine if the article as a
12 VICTORIA'S SECRET DIRECT, LLC v. US
whole, considering all of its features and functions, shares
the unifying characteristic of those listed—here, the
paramount function of support.
A few examples confirm the limitation inherent in the
heading 6212 list. Certain garments not listed in the
heading provide body support, but could not reasonably be
considered in the same category as “[b]rassieres, girdles,
corsets, braces, suspenders, [and] garters.” Many evening
gowns, specifically backless gowns, have built-in bust
support sufficient to make a separate brassiere unneeded.
Yet it is not reasonable to say that an evening gown is a
“similar article[]”—an article of clothing similar to a
brassiere or the others listed in heading 6212—and Victo-
ria’s Secret and Lerner agreed at oral argument. See Oral
Argument at 4:00–5:05. Likewise, some jeans are de-
signed to flatten, trim, and lift certain parts of the body.
Such a pair of jeans cannot reasonably be called a “similar
article” under heading 6212—an article similar to
“[b]rassieres, girdles, corsets, braces, suspenders, [and]
garters.”
The Court of International Trade made findings that
establish that the articles here did not have support as
their paramount function, without a comparably im-
portant outerwear coverage function. After finding that
the Bra Top and the Bodyshaper are “designed to provide
support to the bust of the wearer,” Victoria’s Secret at
1344; Lerner at 1324, the court concluded that “it would
be inconsistent with facts the court found in this case to
conclude that body support is the essential characteristic
or purpose” of either garment. Victoria’s Secret at 1354;
Lerner at 1327 (emphasis in original in both opinions).
That finding must be understood in light of the series of
findings about the dual functions of the garments, includ-
ing prominently the function of outerwear coverage as a
top. E.g., Victoria’s Secret at 1339–42; Lerner at 1319–21.
And the court summed up its findings by saying that it
could not conclude that either the Bra Top or the Body-
VICTORIA'S SECRET DIRECT, LLC v. US 13
shaper “on the whole is ‘similar’ to a brassiere or to any
other garment or article named in the heading.” Victo-
ria’s Secret at 1355; Lerner at 1328 (emphasis in original
in both opinions). The essence of these findings is that
these dual-function garments have too much of the non-
support function to share “the essential characteristic” of
the items listed in heading 6212.
The evidence supports the finding that the Bra Top
and the Bodyshaper do not share the unifying character-
istic of heading 6212. The Court of International Trade
noted the evidence, and none of the parties dispute, that
both garments are “designed for two purposes, coverage
and support.” Victoria’s Secret at 1343; Lerner at 1323.
There was ample evidence that each garment is meant to
be wearable in public without needing an additional layer.
See Victoria’s Secret at 1341 (“Victoria’s Secret markets
the Bra Top as a wardrobe ‘essential’ that can be worn by
itself as a top.”); Lerner at 1321 (“The Bodyshaper is
intended to be worn in public.”). Victoria’s Secret and
Lerner, in marketing their garments, gave at least com-
parable prominence to the ordinary outerwear coverage
function as to the support function. See Victoria’s Secret
at 1341 (“‘Most important’ to Victoria’s Secret, from ‘a
merchandising perspective,’ is that the Bra Top provides
the wearer ‘[t]he support of a bra and the use of a top in
one.’” (alteration in original)); Lerner at 1320 (“Lerner’s
website marketing materials for the Bodyshaper depict
the garment being worn with pants or a skirt, and often
with no layering garment being worn over the Bodyshap-
er.”).
Our precedents in this area show that the inquiry re-
quires an analysis of particular headings and particular
merchandise. In Avenues in Leather, the relevant unify-
ing characteristics of HTSUS heading 4202 (as it then
read) were, simply, “organizing, storing, protecting, and
carrying various items.” 178 F.3d at 1245. The merchan-
dise at issue there had those characteristics and did not
14 VICTORIA'S SECRET DIRECT, LLC v. US
have anything else “inconsistent” with any limitation
found inherent in the 4202 list. Id. On the other hand,
the merchandise did not come under HTSUS heading
4820 because the unifying characteristics of that heading
were such as to preclude an item with “prominen[t] . . .
organizing, carrying, and storing features,” and only
possible writing-related features in some configurations.
Id. at 1245–46.
Earlier, in Totes, Inc. v. United States, 69 F.3d 495(Fed. Cir. 1995), this court had similarly interpreted
heading 4202 of the HTSUS as having “organizing, stor-
ing, protecting, and carrying various items” as unifying
characteristics. Id. at 498. The merchandise at issue, a
“rectangular case used to organize and store items such as
motor oil, tools, and jumper cables in an automobile
trunk,” id. at 496, was “not removed from classification
under [heading 4202] simply because it [was] intended to
organize, store, and protect items associated with a motor
vehicle,” id. at 498. Distinguishing Sports Graphics,
supra, a case decided under the TSUS, the court tied its
discussion to the particular merchandise at issue and
whether it had a specific purpose inconsistent with any
limitation inherent in heading 4202. 69 F.3d at 498–99.
Sports Graphics, supra, had held that the merchan-
dise at issue was not a “like article[]” under the TSUS
provision (close to HTSUS heading 4202), because the
merchandise “ha[d] a different purpose”—not merely a
more specific one—than the listed examples. 24 F.3d at
1393. And in SGI, supra, decided after Totes, this court
reiterated that the same conclusion applied to (the then-
current language of) heading 4202 of HTSUS, finding that
coolers for containing food and beverages were not “simi-
lar containers” under that heading. 122 F.3d at 1472–73.
As in the present case, a purpose of the merchandise at
issue was inconsistent with the heading because the
unifying characteristics inherently limited the presence of
VICTORIA'S SECRET DIRECT, LLC v. US 15
certain purposes, over and above requiring certain pur-
poses. See id.This heading-specific approach is especially appropri-
ate under the HTSUS. In JVC Co. of America v. United
States, 234 F.3d 1348 (Fed. Cir. 2000), we rejected a pre-
HTSUS “doctrine” the courts had created that imposed a
reading on all listings of a certain sort (the so-called
“more than” doctrine), rather than discerning the natural
meaning of the words of each particular listing. Id. at
1353–54. We reasoned that such judicially imposed “rules
of interpretation” were not proper under the HTSUS,
which supplies its own defined principles of interpreta-
tion. Id. The lesson is that the analysis of what is “simi-
lar” under a heading depends on what is listed in that
particular heading. The task is language interpretation
in context, not judicial imposition by doctrine. Cf. North-
west, Inc. v. Ginsberg, 134 S. Ct. 1422, 1432–33 (2014) (in
contract-law setting, distinguishing doctrine imposing
result from context-specific interpretation). Our heading-
specific analysis performs the required interpretive task.
For those reasons, we reject Victoria’s Secret’s and
Lerner’s challenges to the Court of International Trade’s
holding that the Bra Top and the Bodyshaper are outside
heading 6212. That conclusion ends this appeal. Heading
6109, though once at issue in these cases, no longer is.
There is no basis for rejecting the residual provision,
heading 6114, once headings 6212 and 6109 are rejected.
And Victoria’s Secret and Lerner do not dispute the choice
of subheadings if heading 6114 applies.
CONCLUSION
We affirm the judgment of the Court of International
Trade.
AFFIRMED
United States Court of Appeals
for the Federal Circuit
______________________
VICTORIA’S SECRET DIRECT, LLC,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-1468
______________________
Appeal from the United States Court of International
Trade in No. 07-CV-0347, Chief Judge Timothy C.
Stanceu.
---------------------------------
LERNER NEW YORK, INC.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-1469
______________________
2 VICTORIA’S SECRET DIRECT, LLC v. US
Appeal from the United States Court of International
Trade in No. 07-CV-0361, Chief Judge Timothy C.
Stanceu.
______________________
REYNA, Circuit Judge, dissenting.
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.
I
When Congress adopted the Harmonized Tariff
Schedule of the United States (“HTSUS”) in 1988, it
explicitly provided that HTSUS provisions “shall be
considered to be statutory provisions of law for all purpos-
es.” The Omnibus Trade and Competitiveness Act of
1988, Pub. L. No. 100-418, § 1204(c), 102 Stat. 1107, 1149.
Included within the HTSUS is a “statutorily-prescribed,
comprehensive, and systematic method of classification”
known as the General Rules of Interpretation (“GRI”).
JVC Co. of Am. v. United States, 234 F.3d 1348, 1354
(Fed. Cir. 2000); see also Pub. L. No. 100-418, § 1204(a).
Under GRI 1, classification decisions must be made
“according to the terms of the headings and any relative
section or chapter notes[.]” GRI 1. Thus, in tariff classifi-
cation cases, we are required by statute to begin with the
heading that most closely resembles the imported product
and construe the terms in that heading “according to their
common and commercial meanings.” Kahrs Int’l, Inc. v.
United States, 713 F.3d 640, 644 (Fed. Cir. 2013).
VICTORIA’S SECRET DIRECT, LLC v. US 3
The majority deviates from this statutorily-mandated
method of classification by rewriting the canon of statuto-
ry construction known as ejusdem generis, which limits
the scope of general terms or phrases to items that are
similar to those specifically enumerated in the statute.
Christopher v. SmithKline Beecham Corp., 132 S. Ct.
2156, 2171 n.19 (2012). Although the majority does not
reverse the trial court’s decision, it essentially sidesteps
the trial court’s extensive factual findings and rejects its
analysis in favor of an unduly narrow construction of the
ejusdem generis principle. The majority improperly
focuses on an article’s “paramount” function instead of its
essential characteristics and, in doing so, violates the
precept that ejusdem generis should not be invoked to
“narrow, limit or circumscribe an enactment.” Sandoz
Chem. Works, Inc. v. United States, 50 CCPA 31, 35
(1963).
The principle of ejusdem generis provides that general
terms and phrases should be limited to matters “similar
in type to those specifically enumerated.” Fed. Maritime
Comm’n v. Seatrain Lines, Inc., 411 U.S. 726, 734 (1973)
(citations omitted); see also Paroline v. United States, 134
S. Ct. 1710, 1721 (2014). In the tariff classification con-
text, an imported article falls within the scope of a gen-
eral term or phrase if it possesses the same essential
characteristics that unite the listed exemplars. See, e.g.,
Deckers Corp. v. United States, 532 F.3d 1312, 1316 (Fed.
Cir. 2008). The Bureau of Customs and Border Protection
(“Customs”) has consistently classified imported articles
ejusdem generis if the articles are “designed,” “intended,”
or “principally used” in the same manner or fashion as the
listed exemplars. 1
1 See, e.g., Classification of a Support Garment from
China or Australia, N253321 (Cust. & Border Prot. May
30, 2014); Classification of a Silk Capelet from China, HQ
4 VICTORIA’S SECRET DIRECT, LLC v. US
The majority agrees with the trial court that the es-
sential function unifying the exemplars listed in heading
6212 is to provide support to either the body or to some
other garment. Maj. Op. at 11. The majority also does
not take issue with the trial court’s extensive factual
findings showing that an essential feature of both the Bra
Top and the Bodyshaper is to provide support. See, e.g.,
Victoria’s Secret Direct, LLC v. United States, 908 F.
Supp. 2d 1332, 1340-45 (Ct. Int’l Trade 2013); Lerner New
York, Inc. v. United States, 908 F. Supp. 2d 1313, 1320-24
(Ct. Int’l Trade 2013). The court summarized its findings
with a principal finding of fact that both garments are
“designed to provide support to the bust of the wearer”
and that both garments do, in fact, provide “a certain
degree of such support.” Victoria’s Secret, 908 F. Supp. 2d
at 1345; Lerner, 908 F. Supp. 2d at 1324. The Govern-
ment concedes on appeal that an essential purpose of the
garments is to provide support. Victoria’s Secret Appellee
Br. 12; Lerner Appellee Br. 11. Under ejusdem generis,
these garments are therefore classifiable as “similar
articles” under heading 6212 because they share the
essential characteristics of the listed exemplars. Here,
the inquiry should end.
The majority nevertheless fails to classify these gar-
ments under heading 6212 because it finds that support
is, at best, coequal to the garments’ coverage function.
Maj. Op. at 11. The majority misconstrues our precedent,
which holds that additional but not inconsistent charac-
teristics do not prevent the ejusdem generis classification
of an article. As we noted in Avenues in Leather, Inc. v.
United States, once an article is found to share the essen-
tial characteristics of the listed exemplars, “only an
967889 (Cust. & Border Prot. Feb. 1, 2006); Classification
of Kidney or Back Belt, HQ 952827 (Cust. & Border Prot.
Dec. 16, 1992).
VICTORIA’S SECRET DIRECT, LLC v. US 5
inconsistent specific primary purpose will prevent classi-
fication under that heading.” 178 F.3d 1241, 1245 (Fed.
Cir. 1999). The presence of dual functions does not by
itself prevent an imported article from being classified
ejusdem generis, a principle recognized by Customs in its
decisions. See Classification of Kidney or Back Belt, HQ
952827 (Cust. & Border Prot. Dec. 16, 1992) (classifying a
kidney and back belt under heading 6212 despite having
the dual function of providing warmth and support).
Hence, if support is in fact an essential characteristic of
the Bra Top and Bodyshaper, the presence of an addition-
al coverage or warmth function should not defeat their
classification as “similar articles.”
By allowing additional but not inconsistent features to
trump similarity, the majority implicitly revives a tariff
classification doctrine long found to be inapplicable to the
HTSUS. Under the so-called “more than” doctrine, which
arose under the old Tariff Schedule of the United States,
an imported article that shares features of a listed exem-
plar is not classifiable under that heading if the article
contains additional “nonsubordinate or coequal” functions
or characteristics. See, e.g., Digital Equip. Corp. v. United
States, 889 F.2d 267, 268 (Fed. Cir. 1989); Avenues in
Leather, 178 F.3d at 1245-46. We held in JVC Co. of
America v. United States that the “more than” doctrine
was supplanted by the General Rules of Interpretation
and thus does not apply to cases arising under the
HTSUS. 234 F.3d at 1354.
The majority nevertheless revives the “more than”
doctrine by holding that the presence of additional fea-
tures may negate similarity:
The court’s observation that the “analysis must
consider the imported merchandise as a whole” re-
inforces the point: even if the merchandise at is-
sue contains certain features shared by those
listed in a heading, the presence of other features
6 VICTORIA’S SECRET DIRECT, LLC v. US
in the merchandise “as a whole” may negate simi-
larity.
Maj. Op. at 11 (quoting Avenues in Leather, 178 F.3d at
1246). The majority further engages in a classic applica-
tion of the “more than” doctrine by concluding that the
Bra Top and Bodyshaper “have too much of the non-
support function to share ‘the essential characteristic’ of
the items listed in heading 6212.” Maj. Op. at 13. We
held in JVC Co. of America that such an analysis is not
proper under the HTSUS and explicitly overruled the
portion of Avenues in Leather cited by the majority. 234
F.3d at 1353-54. The majority’s decision thus contradicts
our precedent allowing merchandise to be classifiable as a
particular article even if it possesses additional features
or functions. 2 Under the proper standard, the additional
coverage function of the Bra Top and Bodyshaper cannot
by itself defeat the garments’ classification as “similar
articles” under heading 6212.
II
The majority attempts to sidestep this precedent by
reading an implicit limitation into the characteristics of
the exemplars listed in heading 6212:
[The listed exemplars] provide body or other-
garment support and do so as their paramount
function; in particular, the primacy of that func-
tion is not overridden by an additional outerwear
coverage function so significant as to dominate or
even to be of roughly the same importance as the
support function.
2 Indeed, this is precisely the purpose of the “other”
and the “all other” classification headings, to capture
articles similar but neither identical to nor the same as
the articles expressly identified by the heading or sub-
heading.
VICTORIA’S SECRET DIRECT, LLC v. US 7
Maj. Op. at 11. But by focusing its analysis on “par-
amount functions” instead of “essential characteristics,”
the majority is in effect rewriting the ejusdem generis
principle. Our precedent requires an ejusdem generis
analysis to compare the essential characteristics of listed
exemplars with those of the imported article. The term
“essential” is defined in Webster’s Third New Interna-
tional Dictionary as “constituting an indispensable struc-
ture, core, or condition of a thing,” and “may suggest that
the matter in question involves the very essence, or being
or real nature, of whatever is concerned.” Webster’s Third
New Int’l Dictionary 777 (Unabridged ed. 2002). This
definition does not preclude an article from having more
than one “essential” characteristic. The term “para-
mount,” on the other hand, is defined as “having a higher
or the highest rank or authority” and “superior to all
others.” Id. at 1638. By definition, only one feature or
function of an article can be “paramount.” Hence, the
majority improperly narrows the ejusdem generis analysis
by focusing on the “paramount function” of the listed
exemplars instead of their essential characteristics.
The majority’s assumption that the unifying charac-
teristics of the listed exemplars inherently limit the
presence of other features is also at odds with the exem-
plars themselves. Many of the listed exemplars, including
brassieres, girdles, corsets, and garters, provide some
level of coverage and warmth to the wearer. Changes in
fashion also allow for some of these articles to be worn as
outerwear. As Customs has recognized, “a garment which
is otherwise designed and intended to provide support in
the manner of a bra will not be precluded from classifica-
tion as such merely because it will be seen when worn.”
Classification of T-Back Sports Bras, HQ 951264 (Cust. &
Border Prot. July 1, 1992) (emphasis added). Customs
has noted that “it is now acceptable to let brassieres that
have been embellished in some manner show under
outerwear or even be worn by themselves.” Classification
8 VICTORIA’S SECRET DIRECT, LLC v. US
of Decorated Brassiere, HQ 954488 (Cust. & Border Prot.
Oct. 6, 1993). Hence, the majority errs when it concludes
that the coverage function of the Bra Top and Bodyshaper
is inconsistent with the essential support characteristic of
the listed exemplars. Maj. Op. at 14-15.
The majority’s reliance on anecdotal examples related
to evening gowns and jeans is not helpful and does not
support its finding of an inherent limitation in heading
6212. Maj. Op. at 12. The traditional ejusdem generis
analysis would not require classification of evening gowns
and jeans under this heading just because these garments
happen to provide some support to the wearer. To be
classifiable under this heading, the trial court would first
need to make a factual finding that support is an essen-
tial characteristic—i.e., a core and indispensable ele-
ment—of the article and that the article does not have a
more specific primary purpose that is inconsistent with
those characteristics. Without such factual findings, the
majority’s hypotheticals are neither relevant nor illumi-
nating.
In contrast to the majority’s abstract examples, the
trial court made extensive factual findings showing that
an essential feature of the Bra Top and Bodyshaper is to
provide support. See, e.g., Victoria’s Secret, 908 F. Supp.
2d at 1340-45; Lerner, 908 F. Supp. 2d at 1320-24. The
court summarized its findings with a principal finding of
fact that both garments are “designed to provide support
to the bust of the wearer” and that both garments do, in
fact, provide “a certain degree of such support.” Victoria’s
Secret, 908 F. Supp. 2d at 1345; Lerner, 908 F. Supp. 2d at
1324. The majority does not find clear error in these
findings and thus presumably admits that support is an
essential feature of these garments. Once such a finding
is made, only an inconsistent specific primary purpose
will remove the article from the general term. The major-
ity fails to point to an inconsistent specific primary pur-
pose of the garments, and the presence of a coequal
VICTORIA’S SECRET DIRECT, LLC v. US 9
coverage function consistent with the garments’ support
function does not defeat classification under heading
6212. The majority, in its failure to classify the Bra Top
and Bodyshaper as “similar articles” under heading 6212,
departs from the traditional ejusdem generis analysis and,
in essence, rejects its application as an interpretive prin-
ciple in classification cases.
III
In sum, the majority misconstrues the requirements
of an ejusdem generis analysis, unduly limits the scope of
general terms and phrases, and contradicts precedent by
reviving a once-defunct doctrine of classification law. The
majority’s revision of the ejusdem generis requirements is
more than a small change. Similar to changing the course
of a nautical heading by a few degrees, a revision of tariff
classification rules will oft lead to unintended destina-
tions. Here, the majority’s rewriting of the ejusdem
generis principle will create unnecessary confusion in
future classification cases and a high degree of unpredict-
ability in the marketplace. For these reasons, I dissent.