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No Supreme Court Review of Footwear Case Involving Question of Judicial Deference

Friday, May 23, 2014
Sandler, Travis & Rosenberg Trade Report

The Supreme Court this week declined to review a split decision by the Court of Appeals for the Federal Circuit that some worry could lead to increased judicial deference to U.S. Customs and Border Protection documents that have not undergone public review.

The case involved the classification of UGG Classic Crochet model boots, which have a rubber sole and a knit upper that has no laces, buckles or other fasteners. To don the boots, a wearer must grip the top of the woven textile upper with two hands, insert the foot into the opening and pull the boot up forcefully while adjusting the foot until the foot and calf are securely ensconced in the boot with the heel properly set.

Plaintiff Deckers Outdoor Corp. had sought classification as footwear with outer soles of rubber or plastics valued at over $12 per pair under HTSUS 6404.19.90 (9% duty). Deckers argued that the phrase “footwear of the slip-on type” only applies to shoes and not boots and that because the subject boots must be pulled on they do not qualify as slip-on footwear.

The CAFC rejected these claims and found that the boots are classifiable as other slip-on footwear under HTSUS 6404.19.35 (37.5% duty). The court said this subheading specifically refers to footwear and that this term plainly encompasses both shoes and boots. The court also noted that Footwear Definitions, a document produced by U.S. Customs and Border Protection and used by CBP import specialists in classifying footwear, provides that the term “slip-on” includes boots that must be pulled on. Further, CBP has consistently classified boots without laces or other fasteners as slip-on footwear.

However, a dissenting justice opined that the term “footwear of the slip-on type” has a common and commercial meaning that includes three limitations: the item must be a shoe (i.e., not a high-cut boot), must be easy to slip on and must have few or no fasteners. This justice also stated that Footwear Definitions merely “asserts by fiat” that pull-on boots are classifiable as slip-on footwear and provides no reasoning for that determination, rendering it unpersuasive and therefore not warranting judicial deference.

An International Trade Daily article said Deckers asked the Supreme Court to hear the case on the grounds that the CAFC decision “will ‘effectively bar’ all challenges to Customs classification decisions where Customs has issued any kind of written interpretation” by requiring judicial deference to such interpretations. However, the article added, “the government said nothing in the appeals court’s opinion suggests that the court treated case law deference principles as outcome-determinative.”

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