Wwrd US, LLC v. United States , 886 F.3d 1228 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
WWRD US, LLC,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2017-1945
______________________
Appeal from the United States Court of International
Trade in No. 1:11-cv-00238-MAB, Judge Mark A. Barnett.
______________________
Decided: April 2, 2018
______________________
DANIEL J. GLUCK, Simon Gluck & Kane LLP, New
York, NY, argued for plaintiff-appellant. Also represent-
ed by CHRISTOPHER M. KANE, MARIANA DEL RIO
KOSTENWEIN.
BEVERLY A. FARRELL, International Trade Field
Office, Commercial Litigation Branch, Civil Division,
United States Department of Justice, New York, NY,
argued for defendant-appellee. Also represented by CHAD
A. READLER, ROBERT E. KIRSCHMAN, JR., JEANNE E.
DAVIDSON, AMY RUBIN; SHERYL FRENCH, Office of the
Assistant Chief Counsel, United States Bureau of Cus-
2 WWRD US, LLC v. UNITED STATES
toms and Border Protection, United States Department of
Homeland Security, New York, NY.
______________________
Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.
CLEVENGER, Circuit Judge.
WWRD US, LLC (“WWRD”) appeals the United
States Court of International Trade’s (“CIT”) final deci-
sion denying WWRD’s motion for summary judgment and
granting the Government’s cross-motion for summary
judgment. In doing so, the CIT agreed with the U.S.
Customs and Border Patrol’s (“CBP”) classification of
WWRD’s subject imports, finding the articles were not
eligible for duty-free treatment. WWRD U.S., LLC v.
United States, 211 F. Supp. 3d 1365 (Ct. Int’l Trade 2017).
We affirm.
BACKGROUND
Between October 2009 and February 2010, WWRD
imported a series of decorative ceramic plates and mugs
from its “Old Britain Castles” dinnerware collections;
decorative ceramic plates and gravy boats from its “His
Majesty” dinnerware collection; and crystal flutes, punch
bowls, and hurricane lamps from its “12 Days of Christ-
mas” collection. All of the subject imports had festive
motifs, such as Christmas trees, hollies, or turkeys, and
were intended to be used during Thanksgiving or Christ-
mas dinner. Upon arrival in the United States, the CBP
classified the articles based on their constituent materi-
als, placing the various goods in subheadings 6912.00.39, 1
1 All references to the HTSUS refer to the govern-
ing provision determined by the date of importation. See
LeMans Corp. v. United States, 660 F.3d 1311, 1314 n.2
(Fed. Cir. 2011). Because there were no material changes
WWRD US, LLC v. UNITED STATES 3
7013.22.50, 7013.41.50, and 9405.50.40 of the Harmo-
nized Tariff Schedule of the United States (“HTSUS”).
WWRD filed multiple protests, arguing the articles should
be classified in 9817.95.01, a duty-free subsection of the
HTSUS covering certain festive goods. Specifically,
HTSUS 9817.95.01 provides duty-free status for
“[a]rticles classifiable in subheadings 3924.10, 3926.90,
6307.90, 6911.10, 6912.00, 7013.22, 7013.28, 7013.41,
7013.49, 9405.20, 9405.40, or 9405.50, the foregoing
meeting the descriptions set forth below: Utilitarian
articles of a kind used in the home in the performance of
specific religious or cultural ritual celebrations for reli-
gious or cultural holidays, or religious festive occasions,
such as Seder plates, blessing cups, menorahs or kinaras.”
After the CBP denied WWRD’s protests, WWRD filed a
complaint with the CIT, challenging the denials. WWRD
argued that Thanksgiving and Christmas dinners are
specific cultural ritual celebrations, its articles are used in
the performance of such celebrations, and thus its articles
belong in HSTUS 9817.95.01.
When presented with cross-motions for summary
judgment, the trial court began by discussing the history
of subheading 9817.95.01. Specifically, the court noted
that, before the creation of subheading 9817.95.01, utili-
tarian items associated with holiday or festive occasions
were classified within Chapter 95, under heading 9505.
This heading provided broad duty-free coverage for
“[f]estive, carnival or other entertainment articles,” as
interpreted by our line of cases beginning with Midwest of
Cannon Falls, Inc. v. United States, 122 F.3d 1423 (Fed.
Cir. 1997). However, in 2007, Chapter 95 was amended to
add Note 1(v), which removed “[t]ableware, kitchenware,
toilet articles, carpets, and other textile floor coverings,
to the relevant 2009 and 2010 provisions here, we cite to
the 2009 version for convenience.
4 WWRD US, LLC v. UNITED STATES
apparel, bed linen, table linen, toilet linen, kitchen linen
and similar articles having a utilitarian function (classi-
fied according to their constituent material)” from the
scope of Chapter 95. But Note 1(v) also referred to sub-
headings 9817.95.01 and 9817.95.05, 2 which provided
duty-free status to a select subset of articles that would
have lost such status under the Note. Thus, while many
festive utilitarian articles are no longer eligible for duty-
free status, those used “in the performance of specific
religious or cultural ritual celebrations” are still eligible.
The parties disputed only whether WWRD’s subject
imports are used “in the performance of specific religious
or cultural ritual celebrations,” and therefore the trial
court set about defining the scope of this phrase in sub-
heading 9817.95.01. In assessing the phrase, the CIT
analyzed the text of the subheading using the General
Rules of Interpretation (“GRI”). But because the section
and chapter of the HTSUS did not assist in defining the
phrase, the court gave the terms in the subheading their
ordinary meaning, with specific focus on the word “ritual.”
The court concluded that Thanksgiving and Christ-
mas are cultural holidays, and the associated dinners are
cultural celebrations, but not specific rituals. The court
found that “rituals generally encompass specific scripted
acts or series of acts that are customarily performed in an
often formal or solemn manner.” WWRD, 211 F. Supp. 3d
at 1375. While these dinners occur annually during
religious or cultural holidays, that alone is not sufficient;
the dinners themselves lack specific formal or solemn
acts. See id. (“[I]f subheading 9817.95.01 was intended to
2 Subheading 9817.95.05 covers “[u]tilitarian arti-
cles in the form of a three-dimensional representation of a
symbol or motif clearly associated with a specific holiday
in the United States.” This subheading is not involved in
this case.
WWRD US, LLC v. UNITED STATES 5
cover utilitarian items used in the home during religious
or cultural celebrations, whenever they routinely occur,
and whatever they might entail, the term ‘ritual’ could
have been omitted altogether.”).
The trial court then turned to the exemplars provided
in the subheading – the Seder plates, blessing cups,
menorahs or kinaras. Under the statutory construction
rule of ejusdem generis (“of the same kind”), the trial court
reasoned that the subject imports must “possess the
essential characteristics or purposes that unite the [ex-
ample] articles enumerated . . . .” Id. at 1376 (quoting
Sports Graphics, Inc. v. United States, 24 F.3d 1390, 1392
(Fed. Cir. 1994)). The court distinguished the exemplars,
which served specific purposes to advance their respective
rituals, from the subject imports, which were “merely
decorative items used to serve food and beverages or
provide lighting.” Id. According to the trial court, such
general-purpose articles do not qualify as articles used in
the performance of specific religious or cultural ritual
celebrations.
The court denied WWRD’s motion for summary judg-
ment, and granted the Government’s cross-motion for
summary judgment. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(5) (2012).
DISCUSSION
“We review a grant of summary judgment by the
[CIT] for correctness as a matter of law and decide de
novo the proper interpretation of the tariff provisions as
well as whether there are genuine issues of material fact
to preclude summary judgment.” Millennium Lumber
Distrib. Ltd. v. United States, 558 F.3d 1326, 1328 (Fed.
Cir. 2009) (citing Rollerblade, Inc. v. United States, 282
F.3d 1349, 1351 (Fed. Cir. 2002)). CBP classifications are
presumed correct, and an appellant bears the burden of
proving otherwise. Id. at 1330.
6 WWRD US, LLC v. UNITED STATES
Classifying articles under the HTSUS is a two-step
process. The Court first determines the proper meaning
of specific terms in the tariff provisions, which is a ques-
tion of law. Id. at 1328. Once the proper meaning of the
tariff provisions are ascertained, the Court then deter-
mines which HTSUS subheading the subject goods are
most appropriately classified under, which is a question of
fact. Id. “If we determine that there is no dispute of
material facts, our review of the classification of the goods
collapses into a determination of the proper meaning and
scope of the HTSUS terms that, as a matter of statutory
construction, is a question of law.” Aves. in Leather, Inc.
v. United States, 317 F.3d 1399, 1402 (Fed. Cir. 2003).
“The HTSUS is composed of classification headings,
each of which has one or more subheadings.” 3 R.T. Foods,
Inc. v. United States, 757 F.3d 1349, 1352–53 (Fed. Cir.
2014). We construe the terms of a tariff provision by
applying the GRI “in numerical order.” Wilton Indus.,
Inc. v. United States, 741 F.3d 1263, 1266 (Fed. Cir.
2013). Relevant here, the classification of subheadings is
governed by GRI 6, which provides that “the classification
of goods in the subheadings of a heading shall be deter-
mined according to the terms of those subheadings and
any related subheading notes and, mutatis mutandis, to
the above [GRIs] on the understanding that only subhead-
ings at the same level are comparable.” See Orlando Food
Corp. v. United States, 140 F.3d 1437, 1442 (Fed. Cir.
1998). GRI 1, in turn, provides that “classification shall
be determined according to the terms of the headings and
any relative section or chapter notes.” See Millenium
Lumber, 558 F.3d at 1328–29. Terms in the HTSUS are
3 “The first four digits of an HTSUS provision con-
stitute the heading, whereas the remaining digits reflect
subheadings.” Schlumberger Tech. Corp. v. United States,
845 F.3d 1158, 1163 n.4 (Fed. Cir. 2017).
WWRD US, LLC v. UNITED STATES 7
given “their common commercial meanings.” Id. at 1329
(citing Len-Ron Mfg. Co. v. United States, 334 F.3d 1304,
1309 (Fed. Cir. 2003)).
We begin our analysis by determining the proper
meaning of the tariff provisions: what constitutes an
article used “in the performance of specific religious or
cultural ritual celebrations.” The trial court determined
that the term “specific” modifies the term “ritual” (as
opposed to “religious” or “cultural”), and that, consequent-
ly, “rituals generally encompass specific scripted acts or
series of acts that are customarily performed in an often
formal or solemn manner.” WWRD, 211 F. Supp. 3d at
1375. We agree with the trial court that “specific” modi-
fies the term “ritual,” but emphasize that formality and/or
solemnity, while relevant, are not required characteristics
of all specific religious or cultural ritual celebrations.
WWRD attempts to distinguish “religious” from “cul-
tural” rituals, arguing that a “cultural ritual” does not
require the same “specific scripted acts or series of acts
that are customarily performed in an often formal or
solemn manner.” The Government, on the other hand,
argued below for a much narrower definition: that “ritu-
als” require “formal actions and words that are repeated
every year in the same fashion by everyone who cele-
brates these events.” We find neither of these interpreta-
tions compelling.
While the parties provided numerous definitions of
“ritual” from a variety of sources, we can derive two
underlying requirements for religious or cultural rituals.
First, a ritual must have some prescribed acts or codes of
behavior. See Webster’s Encyclopedic Unabridged Dic-
tionary of the English Language 1661 (New rev. ed. 1996)
(“Webster’s”) (defining “ritual” as: “1. an established or
prescribed procedure . . . 2. a system or collection
of . . . rites . . . 6. a prescribed or established rite, ceremo-
ny, proceeding, or service . . . 7. prescribed, established, or
8 WWRD US, LLC v. UNITED STATES
ceremonial acts . . . 8. any practice or pattern of behavior
regularly performed . . . 9. a prescribed code of behav-
ior . . . ”); see also Merriam-Webster’s Collegiate Diction-
ary 1011 (10th ed. 1993) (“Merriam”) (defining “ritual” as
“1 : the established form for a ceremony; specf: the order
of words prescribed . . . [2]b : a ceremonial act or action).
Second, a ritual, in the context of this subheading, must
have some cultural or religious meaning. See Webster’s
(defining “ritual” as involving “[1.] a religious or other
rite . . . [3.] public worship . . . [7.] religious ser-
vices . . . [9.] regulating social conduct . . . .”); see also
Merriam (defining “ritual” as involving “religious law or
social custom.”). The trial court may then weigh other
suggestive but non-dispositive factors, such as whether
the prescribed acts or codes of behavior are performed in a
formal or solemn manner, how widely recognized the
prescribed acts or underlying meanings are, how estab-
lished the organization performing the ritual is, what
purpose the prescribed acts have in serving the organiza-
tion or representing the cultural or religious meaning,
among other considerations.
In this light, it appears WWRD presents a compelling
argument that Thanksgiving and Christmas dinners are
religious or cultural ritual celebrations, but that is not the
end of our analysis. Subheading 9817.95.01 also requires
“specific” ritual. “Specific” is defined as “free from ambi-
guity,” Merriam, at 1128, or “[o]f, relating to, or designat-
ing a particular or defined thing; explicit,” Black’s Law
Dictionary 1616 (10th ed. 2014). Thus, the court must
look for specific, well-defined prescribed acts or codes of
behavior having an unambiguous cultural or religious
meaning.
Generally, WWRD argues that Thanksgiving and
Christmas dinners involve “prescribed and specific acts
and series of acts and their own particular cultural rituals
and sub-rituals, which go beyond the gathering for and
consumption of ordinary meals.” For specificity, WWRD
WWRD US, LLC v. UNITED STATES 9
argues the prescribed acts in Thanksgiving and Christ-
mas dinner are: “gathering together at one location, not
simply to enjoy a meal, but to celebrate in a traditional
family or communal way; a holiday; the consumption of
special food and drink . . . ; more formal table settings
decorated with seasonable displays . . . ; and, at the heart
of the event, the common, shared intent to continue to
celebrate the particular holiday in a familiar and time
honored way.” But the last item concerning “intent” is not
an act at all. The correct focus is on the acts that WWRD
uses to define the ritual, and as the trial court found,
those acts do not rise to the level of specificity required by
subheading 9817.95.01.
The exemplars provided in the subheading illuminate
what level of specificity is required. For instance, as the
trial court noted in part, a Seder plate is used during
Passover to hold six symbolic foods, where each food has a
particular meaning and is generally accompanied by
scripted prayer. In Christian teachings, a blessing cup
holds wine that symbolizes or becomes the blood of Christ,
and invokes scripted Communion liturgy. A menorah is a
candelabrum having nine holders for nine symbolic can-
dles, where a candle is lit for each night of Hanukkah,
and is generally accompanied by scripted prayer. And
finally, a kinara is a candelabrum having seven holders
for seven symbolic candles: three green candles, three red
candles, and one black candle. A candle is lit on each day
of Kwanzaa, and each candle represents a particular
“principle” of Kwanzaa.
Based on the terms of the subheading and the exem-
plars, we conclude that “gathering together” and “enjoying
a meal” are too ambiguous. The proposed acts say noth-
ing about the types of food or drink served, the types of
settings or displays required, whether all families cele-
brate in the same or similar way, or what underlying
cultural or religious meaning the specific acts represent.
Families celebrating Thanksgiving and Christmas din-
10 WWRD US, LLC v. UNITED STATES
ners do so in a variety of ways, using a variety of foods,
and even at a variety of times in the day. The “prescribed
and specific acts” promised by WWRD’s general descrip-
tion of Thanksgiving and Christmas dinners are missing.
But even if the acts were specific enough, there is one
further requirement presented by subheading 9817.95.01:
the subject import must be “used . . . in the performance”
of the ritual. WWRD would have us hold that an article
that is used only for its utilitarian purpose, but also adds
to the ambience of the event, constitutes use in the per-
formance of the ritual. But it is not enough that a utili-
tarian article is merely used during the ritual. Instead,
the use must advance or serve a particular purpose in the
ritual. The exemplars make this clear: a Seder plate is
used to present the six symbolic foods, a blessing cup
holds the symbolic blood of Christ, a menorah is used to
hold the nine symbolic candles, and a kinara is used to
hold the seven symbolic candles. Assuming arguendo that
Thanksgiving or Christmas dinners are specific rituals,
the ritual of dinner will continue whether the serving
trays and cups have festive motifs or not; the motifs
themselves do nothing to further the ritual of dinner.
Unless WWRD can point to specific prescribed acts having
underlying religious or cultural meaning, where the
subject imports are used in the performance of those acts,
its imports are not eligible for duty-free status under
subheading 9817.95.01.
The legislative history supports our conclusion that
WWRD’s subject imports do not fall within the scope of
subheading 9817.95.01. This court’s decisions before 2007
provided that similar utilitarian items associated with
holiday or festive occasions would be classified as duty-
free. See, e.g., Park B. Smith, Ltd. v. United States, 347
F.3d 922, 928–29 (Fed. Cir. 2003). The addition of Note
1(v) in February 2007 rejected that broad scope of duty-
free treatment of utilitarian holiday items, choosing
language that preserved duty-free status only for a subset
WWRD US, LLC v. UNITED STATES 11
of items that are used “in the performance of specific
religious or cultural ritual celebrations.” WWRD’s inter-
pretation of the new language would recreate much the
same scope of duty-free treatment in this area that Con-
gress abandoned in 2007.
CONCLUSION
While we adopt a more flexible definition of “ritual”
than the trial court, the trial court correctly determined
that WWRD’s subject imports do not fall within the scope
of subheading 9817.95.01. Because WWRD failed to
allege any disputes of material fact or dispositive errors of
law, we affirm the trial court’s decisions to deny WWRD’s
motion for summary judgment, and to grant the Govern-
ment’s cross-motion.
AFFIRMED
COSTS
No costs.