[00:00:06] Speaker 02:
Final case for argument is 181305, Ruby's costume company versus United States.

[00:01:24] Speaker 02:
Christmas comes a little early, I guess, this year.

[00:01:26] Speaker 02:
I know.

[00:01:27] Speaker 02:
It's too late for Halloween and too early.

[00:01:30] Speaker 04:
But where are the presents?

[00:01:34] Speaker 04:
I guess maybe ethics would work.

[00:01:36] Speaker 05:
That's why we came here.

[00:01:37] Speaker 05:
We're hoping you're going to give us a present.

[00:01:44] Speaker 02:
OK, we're ready.

[00:01:46] Speaker 02:
Ready?

[00:01:47] Speaker 02:
Yes.

[00:01:53] Speaker 05:
Good morning, Your Honors.

[00:01:54] Speaker 05:
My name is Glenn Ripper.

[00:01:56] Speaker 05:
May it please the court, I represent the appellant Ruby Costume Company.

[00:02:01] Speaker 05:
This is a tariff classification case with respect to an imported Santa Claus costume to determine the custom duties and whether or not they are.

[00:02:13] Speaker 02:
What does this come down to?

[00:02:14] Speaker 02:
It's very confusing to me because we're dealing with exceptions to exceptions.

[00:02:20] Speaker 02:
But we're required to abide by our precedents.

[00:02:23] Speaker 02:
So tell us how you prevail.

[00:02:26] Speaker 02:
The question is the jacket and the pants, right?

[00:02:29] Speaker 02:
Yeah, that's pretty much it.

[00:02:31] Speaker 02:
And your view is that these are not apparel.

[00:02:34] Speaker 02:
These are festive articles.

[00:02:37] Speaker 02:
And they don't come with the exception of fancy dress.

[00:02:41] Speaker 05:
Yes.

[00:02:42] Speaker 05:
Let's talk about the main issues with respect to our defense on that issue of

[00:02:47] Speaker 05:
Two things, the festive article issue.

[00:02:51] Speaker 05:
We believe that the evidence is overwhelming, that this meets the standard of festive articles in the sense that it's something that is prepared for the holidays and is used exclusively during the holidays.

[00:03:08] Speaker 02:
But the question is, and we're not operating on a clean slate here, we've got several opinions that deal with this, the question is whether or not this

[00:03:18] Speaker 02:
these articles come within the fancy dress exception?

[00:03:22] Speaker 05:
Well, that is the second argument that we have.

[00:03:26] Speaker 05:
And we believe it's a very, very strong argument.

[00:03:29] Speaker 05:
And that is that this costume doesn't meet wearing apparel standards.

[00:03:35] Speaker 05:
And that is critical in this case.

[00:03:38] Speaker 05:
And unfortunately, the lower court judge did not allow the testimony and the expert report

[00:03:47] Speaker 05:
of our expert witness, but our expert witness laid out in very good detail with respect to our report and our depositions, the issues that would show that this is not fancy dress.

[00:04:07] Speaker 05:
What we're talking about, there are several cases with respect to

[00:04:13] Speaker 05:
the issue that fancy dress has to meet ordinary wearing apparel standards.

[00:04:19] Speaker 05:
And we brought somebody in from the wearing apparel industry that knew the wearing apparel industry very, very well and went over a litany of reasons why this isn't wearing apparel.

[00:04:34] Speaker 05:
But wasn't that testimony excluded?

[00:04:36] Speaker 05:
That's the other issue that we're appealing on is there was really no reason, and we believe it's reversible error.

[00:04:45] Speaker 04:
I mean, Judge Barnett gave extensive reasons for why under Daubert, he thought she wasn't qualified to opine on the issue.

[00:04:52] Speaker 04:
And don't we review that for abuse of discretion?

[00:04:55] Speaker 05:
Yes, absolutely.

[00:04:56] Speaker 05:
Because if you look at her resume and all the details with respect to

[00:05:04] Speaker 05:
Her background, she was perfect for this.

[00:05:07] Speaker 05:
They tried to categorize her as a fashion woman.

[00:05:11] Speaker 05:
She was in the fashion, she was in the, uh, wearing apparel industry for I think 30 years.

[00:05:17] Speaker 05:
And to say that she wasn't qualified, they were kind of making it.

[00:05:22] Speaker 04:
I didn't read him as saying that she was necessarily unqualified, but that the opinion she was expressing wasn't directed to the relevant inquiry.

[00:05:32] Speaker 05:
Well, let's talk about that, Your Honor, because that, I believe, is at the heart of this matter.

[00:05:37] Speaker 04:
Let's talk about... Let me ask you first this, because you're on a really hard standard on this.

[00:05:42] Speaker 04:
Is this the main argument you're relying on, that he should have let this expert report in, and if he had, you would prevail?

[00:05:50] Speaker 05:
No.

[00:05:51] Speaker 04:
Because... No.

[00:05:53] Speaker 04:
I mean, we can talk about this expert report all you want, but I'd rather hear your other arguments and assume

[00:05:59] Speaker 04:
we're going to affirm him on excluding this expert report.

[00:06:03] Speaker 04:
Well, let's talk about what, let's talk about why isn't, I mean, I don't know that we have to, that there's any dispute that that's a festive article.

[00:06:12] Speaker 04:
I think we all agree.

[00:06:13] Speaker 04:
It's a festival article.

[00:06:15] Speaker 04:
It's, is it excluded as fancy dress specifically under our rubies to decision?

[00:06:22] Speaker 05:
Yeah.

[00:06:22] Speaker 05:
I believe the issue here and, uh,

[00:06:26] Speaker 05:
It's really that ordinary wearing apparel standard does not comply with this.

[00:06:33] Speaker 04:
Where does that ordinary wearing apparel standard come from?

[00:06:38] Speaker 05:
It comes from not only Judge Barnett's decision that this is wearing apparel and

[00:06:50] Speaker 04:
It's a requirement.

[00:06:52] Speaker 04:
Is it in the classification system itself?

[00:06:55] Speaker 05:
It's in case law, and I have it here, Your Honor.

[00:06:57] Speaker 05:
And Judge Barnett ruled in his decision that he found that this was fancy dress.

[00:07:07] Speaker 04:
Judge Barnett holds that the costume is... Can we start with the actual classification system?

[00:07:15] Speaker 04:
and the language describing what fancy dress is.

[00:07:18] Speaker 04:
What is it?

[00:07:19] Speaker 05:
Well, fancy dress basically has to be a clothing that is durable, non-flimsy in nature and is normal article of wearing.

[00:07:30] Speaker 04:
Wait, wait.

[00:07:31] Speaker 04:
Is that in the classification language?

[00:07:36] Speaker 05:
That's in the case law.

[00:07:37] Speaker 05:
I'm not sure.

[00:07:38] Speaker 04:
I ask you to start with the classification language.

[00:07:41] Speaker 04:
What does the classification standard

[00:07:44] Speaker 04:
They're in 61 and 62, as they describe fancy dress ads.

[00:07:48] Speaker 05:
Hang on one second.

[00:08:02] Speaker 05:
One moment, Your Honor.

[00:08:03] Speaker 05:
I want to see if I have that here.

[00:08:34] Speaker 05:
What section are we talking about, Your Honor?

[00:08:36] Speaker 04:
I mean, you're a customs lawyer.

[00:08:37] Speaker 04:
You should know what the statutory classification for fancy dress is.

[00:08:41] Speaker 04:
That's the entire part of this case.

[00:08:45] Speaker 04:
That's why I'm asking you, what's the statutory language in the classification system that defines what fancy dress is?

[00:08:54] Speaker 04:
Before we get down this rabbit hole of durable or not, or wearing peril or not,

[00:09:10] Speaker 04:
Can I just ask you this?

[00:09:11] Speaker 04:
Is fancy dress, does it mean costumes?

[00:09:17] Speaker 05:
Fancy dress, yes.

[00:09:19] Speaker 05:
Fancy dress can include costumes.

[00:09:22] Speaker 05:
And one of the areas that it can include costumes is costumes that would meet wearing apparel standards.

[00:09:30] Speaker 05:
And the concept of fancy dress is, you know, like these ball gowns that you would wear to a costume party that are very fancy, well-made,

[00:09:39] Speaker 05:
and would meet wearing apparel standards.

[00:09:41] Speaker 04:
That would be- How is a ball gown a costume?

[00:09:44] Speaker 04:
Isn't it just- Well, you know, if it's- I thought this meant costumes that you wear at costume parties.

[00:09:49] Speaker 05:
Yeah, but it could be a costume like a Cinderella gown.

[00:09:53] Speaker 04:
Right, so- Right, a Cinderella gown could be- But it can encompass any kind of costume that you would wear to a costume party.

[00:10:00] Speaker 05:
If it meets the normal standard wearing apparel... Where are you getting this wearing apparel requirement from?

[00:10:08] Speaker 05:
The wearing apparel requirement... Judge Burnett held that the Santa Claus costume is fancy dressed because it is durable, non-flimsy, and is a normal article of wearing apparel.

[00:10:26] Speaker 05:
The first rubies,

[00:10:28] Speaker 05:
Ruby's Costume Company versus U.S.

[00:10:31] Speaker 05:
held that, classifying frangy dress, the subject auto must be made to wearing apparel quality standards.

[00:10:40] Speaker 04:
Is that Ruby's you're talking about the one that references Ruby's too?

[00:10:44] Speaker 05:
Yes, that's right.

[00:10:45] Speaker 05:
That's right.

[00:10:46] Speaker 04:
And the reason that it wasn't, it was indisputably a costume there, right?

[00:10:51] Speaker 04:
It was just flimsy.

[00:10:52] Speaker 05:
Yes, exactly, that's right.

[00:10:55] Speaker 05:
The issue was with respect to- It was Halloween costume, wasn't it?

[00:10:59] Speaker 04:
Right, right.

[00:10:59] Speaker 04:
And that's the- So is the question, is this flimsy or not?

[00:11:05] Speaker 05:
No, we're saying, we're agreeing that it's durable.

[00:11:09] Speaker 04:
It's not flimsy, but the real problem is- But the basis for finding it not fancy, in the fancy dress exception in Ruby's 2, was not that it wasn't a Halloween costume.

[00:11:21] Speaker 04:
Right.

[00:11:21] Speaker 04:
Everybody agreed that it was handling costs.

[00:11:24] Speaker 04:
Right.

[00:11:24] Speaker 04:
Exactly.

[00:11:24] Speaker 04:
But it was excluded because it was flimsy.

[00:11:29] Speaker 05:
Because of three things.

[00:11:30] Speaker 05:
It was flimsy.

[00:11:32] Speaker 05:
It was flimsy.

[00:11:34] Speaker 05:
It was non-durable flimsy and it didn't meet normal wearing apparel standards.

[00:11:39] Speaker 04:
Well, those all seem very similar things to me.

[00:11:41] Speaker 05:
The normal wearing apparel standards is critical and that is where... Wait, wait.

[00:11:46] Speaker 04:
Can I disrupt then?

[00:11:47] Speaker 04:
So do you agree that this is not flimsy?

[00:11:51] Speaker 04:
Or wait, let me phrase it the other way.

[00:11:52] Speaker 04:
I don't want them to have a double negative.

[00:11:54] Speaker 04:
This Santa costume is durable and non-flimsy.

[00:11:58] Speaker 05:
Yes, we concede that issue.

[00:12:00] Speaker 05:
Right.

[00:12:00] Speaker 05:
And we concede it in our papers.

[00:12:02] Speaker 05:
The issue that we challenge is that it does not meet normal wearing apparel standards.

[00:12:07] Speaker 05:
Why?

[00:12:08] Speaker 05:
Because there are several reasons for it, and that is that... Counselor?

[00:12:16] Speaker 01:
Let's stop for a second.

[00:12:18] Speaker 01:
If we're getting the classification language that you're talking about under the prior Ruby's decision, it says, and it's describing what becomes a festive article.

[00:12:30] Speaker 01:
So I guess the opposite of this.

[00:12:32] Speaker 01:
So we have a flimsy nature and construction, lacking in durability.

[00:12:37] Speaker 01:
Then it goes into the third point, I think this is where you're at, and generally not recognized as normal articles of wearing apparel.

[00:12:45] Speaker 01:
Right.

[00:12:45] Speaker 05:
That's exactly a strong argument.

[00:12:47] Speaker 01:
My question to you is, did the court make a finding of fact with respect to not recognized as normal articles of wearing apparel?

[00:12:57] Speaker 05:
Yes, it did in the sense that it said that it was a requirement

[00:13:02] Speaker 05:
and they found it to be fancy dress.

[00:13:05] Speaker 01:
So the fact that Judge Barnett said that... The court, I think, made factual findings with respect to flimsy, durability.

[00:13:15] Speaker 01:
But I'm asking you, did the court make any factual findings as to generally not recognize as normal articles of wear and apparel?

[00:13:24] Speaker 05:
Judge Barnett held that it's a requirement.

[00:13:27] Speaker 05:
And therefore, if he ruled that it was fancy dress,

[00:13:31] Speaker 05:
Judge Burnett held that the Santa Claus costume is fancy dressed because it's durable, non-flimsy in nature, and a normal article of wearing the power.

[00:13:41] Speaker 05:
Where is that?

[00:14:04] Speaker 02:
There's a lot covered in this opinion.

[00:14:06] Speaker 05:
I think it's on page 32 of Judge Barnett's opinion.

[00:14:11] Speaker 05:
He says, in sum, the jacket and pants constitute fancy dress of adorable, non-flimsy nature and are normal articles of apparel classified pursuant to 61.

[00:14:24] Speaker 02:
And your view is that's consistent with the test laid out in movies, too?

[00:14:29] Speaker 05:
Yes.

[00:14:30] Speaker 05:
We agree that that is the standard.

[00:14:34] Speaker 02:
You know, our argument with respect to... So we're talking about three categories.

[00:14:42] Speaker 02:
Are we reading Rubies 2?

[00:14:44] Speaker 02:
Rubies 2 says these costumes are festive articles.

[00:14:48] Speaker 02:
They're not in the fancy dress exception because they meet these three requirements.

[00:14:53] Speaker 02:
Right.

[00:14:55] Speaker 02:
Do we need all three?

[00:14:56] Speaker 02:
I mean, what if we agree... What if we think this is not flimsy?

[00:15:02] Speaker 02:
And this does not lack durability.

[00:15:05] Speaker 02:
Are those two factors sufficient to say?

[00:15:08] Speaker 05:
Absolutely not.

[00:15:09] Speaker 05:
Because the issue is whether or not it's wearing apparel.

[00:15:14] Speaker 04:
What does normal wearing apparel mean?

[00:15:17] Speaker 04:
Because we're already in the festive articles category.

[00:15:20] Speaker 04:
So we're not talking about everyday clothes.

[00:15:22] Speaker 05:
Yes, exactly.

[00:15:23] Speaker 05:
Exactly.

[00:15:24] Speaker 05:
But what we're talking about and the issues are... What's excluded from

[00:15:31] Speaker 04:
that duty rate under the festive articles is fancy dress that is festive articles.

[00:15:39] Speaker 05:
Yes, that's right.

[00:15:41] Speaker 04:
This isn't a debate about whether this is a festive article or not.

[00:15:44] Speaker 04:
It's a debate about whether it's a fancy dress version of festive articles.

[00:15:50] Speaker 05:
Yes, I think that that is true.

[00:15:52] Speaker 04:
I believe at one time that... What does normal wearing apparel mean in that context?

[00:15:57] Speaker 04:
It can't mean something you would wear to your place of business.

[00:16:01] Speaker 04:
Right, because it's a festive article.

[00:16:02] Speaker 05:
Right, exactly, but let's talk about some of the issues.

[00:16:07] Speaker 04:
Can you talk about the one I'm asking you about?

[00:16:09] Speaker 05:
I'm talking about the facts of why it's not wearing apparel.

[00:16:12] Speaker 05:
It doesn't meet the normal standards of wearing apparel because it's one size fit all and it's generally not used in wearing apparel.

[00:16:23] Speaker 05:
The material used to make the costume is the same material used to make

[00:16:30] Speaker 05:
toy stuffed animals.

[00:16:31] Speaker 05:
It's not the kind of material that you would use in normal wearing.

[00:16:36] Speaker 05:
The lining is fully made.

[00:16:38] Speaker 04:
When we start asking you questions, you have to stop and let us answer.

[00:16:42] Speaker 04:
If somebody goes to a costume party and dresses up in a leopard costume with the mask and everything, and it's durable, it's made of a plush fabric, and all that kind of like, it's a costume for a costume party.

[00:16:59] Speaker 04:
That could be fancy dress.

[00:17:02] Speaker 05:
It could be fancy dress if it met the ordinary standards of wearing apparel.

[00:17:07] Speaker 04:
Well, isn't that an ordinary standard for a leopard costume?

[00:17:12] Speaker 05:
No, you wouldn't be looking at what the ordinary standard of a leopard costume is because that wouldn't be- I don't understand what you mean by ordinary wearing apparel then because

[00:17:24] Speaker 04:
It seems to me like you're trying to mash kind of everyday clothes when we're out of the everyday clothes category altogether.

[00:17:33] Speaker 04:
Let me ask you this.

[00:17:34] Speaker 04:
What would constitute a type of fancy dress that's also a festive article?

[00:17:42] Speaker 05:
Well, let's talk about they wouldn't put in the category of ordinary wearing apparel standards if that wasn't a factor to be considered.

[00:17:52] Speaker 05:
And what we're talking about

[00:17:54] Speaker 05:
is the way a wearing apparel is caught, the way it fits, the type of lining you would make in wearing apparel, the kind of material you would use for normal wearing apparel.

[00:18:08] Speaker 05:
And none of these standards are met.

[00:18:10] Speaker 05:
We're talking about material.

[00:18:11] Speaker 04:
So you basically categorically want us to read out costumes that are too far away from everyday clothes.

[00:18:21] Speaker 04:
Yes, I'm saying to you that... Where does that come from?

[00:18:25] Speaker 04:
That's why I ask you.

[00:18:26] Speaker 04:
That doesn't seem to be a... That's not the basis of Ruby 2s.

[00:18:31] Speaker 04:
The exclusion of Ruby 2s was because it was flimsy and durable.

[00:18:35] Speaker 03:
The clear implication of Ruby 2s was if it hadn't been flimsy and durable, it would have been included.

[00:18:42] Speaker 03:
Frankly, that's what you argued.

[00:18:44] Speaker 03:
or your client argued for us in Ruby 2.

[00:18:46] Speaker 05:
Your Honor, I believe the wording in Ruby's 2 is exactly what Judge Barnett said.

[00:18:55] Speaker 05:
And let me look at the wording.

[00:18:57] Speaker 05:
In Ruby's 2, they use the exact same wording.

[00:19:00] Speaker 05:
It has to mean ordinary wearing apparel.

[00:19:04] Speaker 05:
Here's the wording from Ruby's 2.

[00:19:06] Speaker 05:
It held that classifying as fancy dress, the subject article must be made to wearing apparel

[00:19:13] Speaker 05:
quality standards.

[00:19:17] Speaker 05:
That's the wording in Ruby's 2.

[00:19:21] Speaker 05:
The subject article must be made to wearing apparel quality standards.

[00:19:30] Speaker 05:
So in the declaration by Mark, is it Beige?

[00:19:35] Speaker 01:
Beige, yes.

[00:19:38] Speaker 01:
So he was making various declarations as to the

[00:19:42] Speaker 01:
costumes, that they're sewn in factories that produce only costumes.

[00:19:46] Speaker 01:
There's other products, toys, and novelties, but that they don't produce apparel.

[00:19:52] Speaker 01:
He talks about the quality requirements, tolerances, and standards for wearing apparel, and things of that nature.

[00:19:59] Speaker 01:
Was this declaration admitted by the court?

[00:20:03] Speaker 01:
Yes, it was admitted by the judge.

[00:20:04] Speaker 05:
Yes, the judge accepted Mark Beige's deposition and his testimony.

[00:20:12] Speaker 05:
What they excluded was the expert witness who we believe fit all the criteria of Rule 702 of the Federal Rules of Evidence.

[00:20:24] Speaker 01:
Now the reason I was asking you, because it seems to me that this raises genuine issues of material fact as to whether we're looking at everyday apparel quality and the state of that quality.

[00:20:37] Speaker 05:
Yes, it certainly does.

[00:20:39] Speaker 05:
And Your Honor, going back to the issue of holding this case on the issue of whether or not we proved our case, our big argument here is that this was an inappropriate case for summary judgment.

[00:20:58] Speaker 05:
There were sincere disputes as to the facts in this case.

[00:21:03] Speaker 02:
You asked for summary judgment too.

[00:21:05] Speaker 05:
Yeah, we did, but Judge Barnett ruled inconsistently by granting summary judgment.

[00:21:13] Speaker 05:
And in numerous sections, he was the one who said that there are material issues.

[00:21:23] Speaker 05:
Well, he ruled that there are no material issue of facts, but then everything he said in his opinion

[00:21:31] Speaker 05:
was inconsistent with that, for example.

[00:21:34] Speaker 02:
I think we need to, we're way beyond our time, and I know that's because we've asked you a lot of questions, so we're not putting that on you.

[00:21:41] Speaker 02:
We'll restore some of it, but I think it's time to hear from the government.

[00:21:46] Speaker 02:
Okay, okay.

[00:21:46] Speaker 02:
Thank you.

[00:22:00] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:22:03] Speaker 04:
Can you give me a quick definition of wearing apparel and where it comes from?

[00:22:07] Speaker 00:
Yes, Your Honor.

[00:22:09] Speaker 00:
Wearing apparel is not defined by the Harmonized Tariff Schedule.

[00:22:12] Speaker 00:
The definitions we do have is from this Court in its line of cases, starting with all the way back, and I believe going 50 years back.

[00:22:21] Speaker 00:
But let's start with Rubies.

[00:22:22] Speaker 00:
I'm going to call it the first Rubies, which has been identified in the briefs as Rubies II.

[00:22:26] Speaker 00:
And in Rubies II, this Court said that wearing apparel is

[00:22:30] Speaker 00:
Clothing or garments that are ordinarily worn.

[00:22:33] Speaker 00:
Clothing or covering for the human body worn for decency and comfort.

[00:22:36] Speaker 00:
And in Ruby's two, the first Ruby's case, this court.

[00:22:40] Speaker 04:
Can I just, I want to parse this out a little bit because when you're describing us as saying clothing that's ordinarily worn, you don't mean everyday clothes because we're already out of the everyday clothes realm, aren't we?

[00:22:52] Speaker 00:
Correct.

[00:22:53] Speaker 04:
When we're in a test of articles.

[00:22:54] Speaker 00:
Yes, well, garments.

[00:22:55] Speaker 00:
Something that covers, a garment isn't necessarily wearing apparel.

[00:22:58] Speaker 00:
Wearing apparel has become a term of art

[00:23:00] Speaker 00:
from this court's jurisprudence.

[00:23:03] Speaker 00:
And wearing apparel has been defined as what I just gave.

[00:23:06] Speaker 00:
And also, this court in Ruby's 2 credited Customs and Border Protections ruling, which describes certain styling features, such as zippers, finished edges, inset panels, darts or hoops.

[00:23:19] Speaker 00:
All those things that this costume has are credited by this court in the first Ruby's decision as being features of wearing apparel.

[00:23:28] Speaker 00:
Those all go to quality, construction, and a garment that is ordinarily worn, worn in the ordinary manner.

[00:23:34] Speaker 00:
Not meant that it's worn to work, or a Santa costume in September or July, or worn to court here, but that it's put on like a normal top.

[00:23:44] Speaker 00:
It zips up like a normal top.

[00:23:45] Speaker 00:
The pants go on like normal pants.

[00:23:47] Speaker 00:
They have pockets.

[00:23:48] Speaker 00:
The jacket has belt loops.

[00:23:49] Speaker 02:
And those are all- Why would we distinguish?

[00:23:52] Speaker 02:
What's the point?

[00:23:53] Speaker 02:
I mean, just step back a minute.

[00:23:54] Speaker 02:
30,000 feet.

[00:23:56] Speaker 02:
And tell me why we would differentiate for something that nobody would wear outside of the circumstances, the same as the Halloween costume.

[00:24:04] Speaker 02:
They're only wearing it on one day a year, and it's only useful as a costume.

[00:24:08] Speaker 02:
Nobody would say this is a normal.

[00:24:10] Speaker 02:
They use the word normal articles of apparel.

[00:24:13] Speaker 00:
Sure, Your Honor.

[00:24:13] Speaker 00:
So why would this have been differentiated?

[00:24:16] Speaker 02:
Well, because of the... Why is something flimsy, but something has a zipper?

[00:24:21] Speaker 02:
So we're defining it as, yes, that's a jacket.

[00:24:25] Speaker 02:
It's a Santa jacket.

[00:24:26] Speaker 02:
So you're saying because it's a jacket, it comes under fancy dress and not under festive.

[00:24:31] Speaker 00:
Well, this court in the first Ruby's decision was tasked with interpreting the congressional intent of the exclusionary note 1E, which I think Judge Hughes was speaking about earlier.

[00:24:40] Speaker 00:
And 1E says that what is excluded from the festive article provision of chapter 95 is fancy dress of textiles

[00:24:50] Speaker 00:
of chapter 61 and 62.

[00:24:52] Speaker 00:
And this court in Rubies found that the term fancy dress just means costume.

[00:24:57] Speaker 00:
All right, that's plain as day from the definitions that the court found.

[00:25:01] Speaker 04:
Let me just make sure I understand this correctly.

[00:25:04] Speaker 04:
When you say it's excluded, you mean it presumptively falls within festive articles, but then is excluded specifically by this note.

[00:25:12] Speaker 04:
Yes, Your Honor.

[00:25:12] Speaker 04:
So it is a festive article.

[00:25:14] Speaker 04:
You're not disputing that this isn't a festive article.

[00:25:16] Speaker 00:
The government concedes that this is a festive article, and it would be prima facie classifiable in chapter 95 as a festive article, unless it meets the definition of fancy dress of textiles of chapter 61.

[00:25:29] Speaker 04:
And in Rubies 2, I guess we largely looked, and it seems to me this problem is largely of your own making, in the customs ruling you had in Rubies 2 that had this kind of test of durability

[00:25:42] Speaker 04:
ordinary wearing and the like, which isn't in the statute and then we adopted, right?

[00:25:46] Speaker 04:
Partially, yes, Your Honor.

[00:25:47] Speaker 04:
So, I mean, the test is, even though it's from our precedent, it seems like it was from your customs ruling as well.

[00:25:53] Speaker 00:
Portions of the test were definitely adopted from the customs ruling that was issued prior to the first Ruby's decision.

[00:26:01] Speaker 00:
However, this court also did look at definitions that were developed over the years, I believe, from this court as well as the United States Supreme Court.

[00:26:09] Speaker 00:
as to what is wearing apparel.

[00:26:11] Speaker 00:
So it was a combination of the two.

[00:26:12] Speaker 02:
Normal articles.

[00:26:13] Speaker 02:
So the term is normal articles of apparel.

[00:26:17] Speaker 00:
That's what has been in the case law.

[00:26:19] Speaker 01:
There's nothing about that in the statute.

[00:26:21] Speaker 01:
The case law says not recognized as normal articles of wearing apparel.

[00:26:29] Speaker 00:
Yes, your honor.

[00:26:29] Speaker 01:
And so when you look at the customs ruling and then the rest of Ruby's too,

[00:26:38] Speaker 01:
It goes into, well, what's wearing apparel?

[00:26:42] Speaker 01:
And that's where the issue comes in about buttons and zippers and durability and flimsiness and those issues.

[00:26:49] Speaker 01:
But they don't answer the question with normal article of wearing apparel.

[00:26:56] Speaker 01:
And I think a lot of confusion is whether this is something that would normally be worn as opposed to whether this is a normal article of wearing apparel.

[00:27:06] Speaker 01:
A couple of points on that, Your Honor.

[00:27:08] Speaker 01:
All right, so getting back to this declaration that I cited to earlier, that declaration seems to me to raise genuine issues of material fact as to whether this is an article of wear and apparel, because it talks about the way it's sewn, its durability.

[00:27:29] Speaker 01:
It goes to the issue of the type of factory that it's made in that only makes toys and doesn't make t-shirts and pants or anything else.

[00:27:37] Speaker 01:
Aren't those genuine issues a material fact as to genuine issue as to a normal article or an apparel?

[00:27:45] Speaker 00:
With regard to your second question, respectfully, no, Your Honor.

[00:27:49] Speaker 00:
How can it not be?

[00:27:50] Speaker 00:
I mean... Because we agree.

[00:27:52] Speaker 00:
Do you agree with that?

[00:27:53] Speaker 00:
We don't disagree with their assessment of the quality, the durability, how it's used, when it's used.

[00:27:59] Speaker 00:
And it's well settled law from this court that in a classification case, how the product is used,

[00:28:05] Speaker 00:
when it's used, the nature of the product, the construction of the product, are all not an issue, then it all collapses into an issue of law, and it should be probably decided on summary judgment.

[00:28:13] Speaker 00:
And that's what Judge Barnett did here.

[00:28:15] Speaker 00:
We do not disagree with anything about this product.

[00:28:18] Speaker 01:
Let me see that Judge Barnett actually addressed this particular issue.

[00:28:22] Speaker 00:
Well, Judge Barnett followed this court's precedence in Rubies 2 and addressed- But Judge Barnett entered summary judgment.

[00:28:29] Speaker 01:
Correct.

[00:28:31] Speaker 01:
And the opinion talks about the flimsy nature of construction,

[00:28:35] Speaker 01:
talks about durability, but not about generally not recognized as normal articles were in apparel.

[00:28:42] Speaker 00:
I believe Judge Barnett did when he looked at the factors that this court considered in the first Rubies decision and found that this article met what the court found was excluded from chapter 95.

[00:28:55] Speaker 00:
It's important to look at the fact that it was the reverse in Rubies II.

[00:29:00] Speaker 00:
Those costumes were cheap

[00:29:02] Speaker 02:
inexpensive, one-time use, slip over the- Can I, going back to where we were a few minutes ago, which is talking about how our court would necessarily define, what did we call it, normal articles of apparel?

[00:29:14] Speaker 00:
Articles ordinarily worn, I believe is the term that was used by this court.

[00:29:17] Speaker 02:
Well, I mean, I'm reading out of rubies too, and it says there's not being normal articles of apparel, normal articles of apparel.

[00:29:24] Speaker 02:
But anyway, they go on to say, when an adult or child might wear, this is on the Halloween costumes.

[00:29:30] Speaker 02:
might wear a one-size-fits-all costume with its attendant accessories for decency or comfort, such benefits are incidental.

[00:29:39] Speaker 02:
And the imports are primarily created for Halloween fun, strongly promoting festive value rather than cognitive association as wearing apparel.

[00:29:51] Speaker 02:
Wouldn't that apply to the guy standing behind you?

[00:29:54] Speaker 00:
Respectfully, no, Your Honor.

[00:29:56] Speaker 00:
There is a cognitive association with wearing apparel by the jacket and pants.

[00:30:00] Speaker 00:
And that's what Judge Barnett found.

[00:30:02] Speaker 00:
It's important to look at footnote two of the first Ruby's decision where the description of those costumes, it's very limited, but that's all we have to really go on.

[00:30:10] Speaker 00:
We have a description of those costumes there.

[00:30:13] Speaker 00:
And those did not meet the cognitive association with wearing apparel because they slipped over the body.

[00:30:18] Speaker 00:
They had the clothing had to be worn underneath them because they were a typical child Halloween costume that would- So cognitive association is that's a jacket and those are pants.

[00:30:30] Speaker 00:
Correct.

[00:30:30] Speaker 00:
And I believe Judge Barnett found that.

[00:30:33] Speaker 01:
This jacket is a one size fits all.

[00:30:36] Speaker 00:
That term has been used.

[00:30:37] Speaker 00:
However, I think it said it would

[00:30:39] Speaker 00:
It basically is, your honor?

[00:30:40] Speaker 01:
That's a term that George Bernard, one size fits all.

[00:30:44] Speaker 01:
The pants, the pants are held with an elastic.

[00:30:49] Speaker 01:
And I'm gonna ask the gentleman not to be singling or anything.

[00:30:52] Speaker 01:
I don't know who they are, but the pants are held together by an elastic, correct?

[00:30:58] Speaker 00:
Yes.

[00:30:59] Speaker 00:
Oh, they have a drawstring, like sweatpants.

[00:31:00] Speaker 01:
A drawstring.

[00:31:01] Speaker 04:
Those are sweatpants.

[00:31:03] Speaker 00:
Excuse me, your honor?

[00:31:03] Speaker 04:
You said like what, sweatpants?

[00:31:05] Speaker 00:
Sweatpants would be very similar to the bottom part of this,

[00:31:09] Speaker 00:
this costume, it has pockets.

[00:31:10] Speaker 01:
The flimsy costume in Ruby's tube, it had straps that you tied together.

[00:31:20] Speaker 00:
We have a very limited description, but if you look at footnote two, it seems to indicate a typical, inexpensive child's costume that would, or adult costume that would slip over the body, that would tie in the back, maybe be open.

[00:31:31] Speaker 02:
Do you think the wearing apparel factors are secondary to the costume's festive value?

[00:31:37] Speaker 02:
If somebody went over and said, okay, you know there's a jacket and pants, but isn't the fact that there are jacket and pants secondary to the fact that it's a Santa costume you're gonna wear at Christmas?

[00:31:49] Speaker 00:
That would be logical.

[00:31:50] Speaker 00:
However, we have note one E to chapter 95, which is a carve out.

[00:31:55] Speaker 02:
We're looking at rubies too.

[00:31:56] Speaker 02:
I'm reading rubies too.

[00:31:58] Speaker 02:
In the paragraph I just read you, you're talking about the Halloween costumes.

[00:32:04] Speaker 02:
And to the extent that such elements have any characteristics

[00:32:07] Speaker 02:
similar to wearing apparel to consumers of Halloween costumes, such features are clearly secondary to the costume's festive value.

[00:32:18] Speaker 02:
So you get my point, right?

[00:32:20] Speaker 00:
I understand, your honor.

[00:32:21] Speaker 00:
That's a little bit of a problem.

[00:32:21] Speaker 00:
However, if we are to give it that interpretation, then we are completely rendering note 1E nuggatory.

[00:32:26] Speaker 04:
Because there's a reason that note- Everything in 1E is a festive article.

[00:32:31] Speaker 00:
I don't know if that's 100% true, but we can assume that- In the exception.

[00:32:35] Speaker 00:
Because it's an exception to a festive article.

[00:32:37] Speaker 04:
If it's accepted from festive article by 1E, it's presumably first a festive article and then within the exception.

[00:32:49] Speaker 04:
If it's not a festive article at all, then we don't even look at the festive article classification and therefore don't look at the exception in 1E.

[00:32:58] Speaker 00:
Correct, Your Honor.

[00:32:59] Speaker 04:
So it seems like, at least when I read these briefs, I initially got confused.

[00:33:05] Speaker 04:
as to some kind of dichotomy between festive article and fancy dress and putting one in one box or the other.

[00:33:13] Speaker 04:
But then I don't think that that's the way it operates, right?

[00:33:17] Speaker 04:
We're operating under the assumption that everything is a festive article and then you look to see whether one e exempts it from festive article what fancy dress is.

[00:33:29] Speaker 04:
But it's not excluded from fancy dress because it's a festive article.

[00:33:34] Speaker 04:
That sounds really convoluted.

[00:33:36] Speaker 04:
That's why this case is baffling.

[00:33:38] Speaker 04:
There are layers and layers of it.

[00:33:40] Speaker 00:
Can I simplify it very easily?

[00:33:42] Speaker 00:
Yes.

[00:33:42] Speaker 00:
We concede that this garment or this costume is prima facie described by chapter 95 as a festive article.

[00:33:55] Speaker 00:
However, it is excluded from chapter 95 by note 1E, which

[00:34:01] Speaker 00:
is fancy dress of textiles of chapter 61 and 62.

[00:34:05] Speaker 00:
And we also believe that it is prima facie described by chapter 61, which is all the different various apparel provisions.

[00:34:13] Speaker 00:
And this court has said numerous times that when you have an article that is prima facie described by two competing provisions and one of them is chapter 95, the article always goes in chapter 95, except this court held in Michael Simon Design and Park B. Smith, except if it's described by one of the exclusionary notes.

[00:34:30] Speaker 00:
And in this case,

[00:34:31] Speaker 00:
This article is described by Note 1E as fancy dress of textiles of chapter 61 and 62.

[00:34:37] Speaker 01:
That's true.

[00:34:38] Speaker 01:
And I'm glad you're going through the steps, because that's what we need to do.

[00:34:41] Speaker 01:
But this court has interpreted that exclusion.

[00:34:45] Speaker 00:
Yes.

[00:34:46] Speaker 01:
And we have to go by that precedent.

[00:34:49] Speaker 01:
So really, it's the issue back to what we've been talking about, whether this is flimsy, durable, or a normal article of Werner Pell.

[00:34:59] Speaker 01:
and it's recognized as a normal article of work.

[00:35:04] Speaker 01:
That's what Judge Barnett was trying to do.

[00:35:06] Speaker 01:
And we would urge this court to follow that precedent.

[00:35:08] Speaker 04:
Your friend on the other side has conceded that it's not flimsy, it's durable.

[00:35:13] Speaker 04:
And I'm still confused about the reason for it not being the normal type of wearing apparel.

[00:35:21] Speaker 04:
Because if the reason is it's a Santa suit, then that argument seems legally incorrect.

[00:35:27] Speaker 00:
I agree, Your Honor.

[00:35:28] Speaker 00:
And I think it's important to look

[00:35:29] Speaker 00:
the sports clothing line of cases that this court has issued.

[00:35:32] Speaker 00:
And that would be the Rydell case as well as the LeMans cases.

[00:35:37] Speaker 00:
And that's the exact same competing provisions, the exact same exclusionary.

[00:35:40] Speaker 04:
So a football uniform is not something you wear to work unless you're a football player.

[00:35:44] Speaker 00:
I would not be allowed into this courtroom if I wore a football jersey.

[00:35:47] Speaker 00:
However... But it's still normal wearing apparel.

[00:35:50] Speaker 00:
It's wearing apparel under Chapter 61 because sports clothing and fancy dress

[00:35:54] Speaker 00:
are in the same 1E exclusion to chapter 95.

[00:35:57] Speaker 00:
It's the exact same exclusionary note and the exact same competing provisions.

[00:36:00] Speaker 00:
And a football jersey, as well as motocross jersey, motocross pants, motocross jacket, were all found by this court to meet that exclusion, even though you wouldn't wear those every day.

[00:36:09] Speaker 00:
You would only wear them to football practice or maybe a costume party if you were going to be a football player.

[00:36:15] Speaker 00:
However, those met the exception as under note 1E.

[00:36:19] Speaker 00:
And the Court of International Trade as well, following those cases in HIM Fathom, found that wetsuits

[00:36:24] Speaker 00:
which again would not be worn on an everyday basis, were considered to be wearing apparel because they're worn in the ordinary manner.

[00:36:33] Speaker 01:
Can we read the language in, or to what extent can we read the language in rubies to normal articles are wearing apparel to be articles of apparel normally worn?

[00:36:50] Speaker 00:
We cannot because we know that

[00:36:52] Speaker 00:
all costumes.

[00:36:53] Speaker 01:
But that makes all the difference in the world, doesn't it?

[00:36:55] Speaker 00:
It would, but we know that, Your Honor, my time's about to run.

[00:36:58] Speaker 00:
Can I finish?

[00:36:59] Speaker 00:
All right.

[00:36:59] Speaker 00:
We know that we can't define that language as articles that are worn on an everyday basis because of the fact that fancy dress is defined as costumes.

[00:37:11] Speaker 00:
So we know it's a costume.

[00:37:12] Speaker 00:
Also, from this court's precedence in the sports clothing cases, we know that

[00:37:16] Speaker 00:
Articles that are not worn on an everyday basis, because they would only be worn in the football practice, so they'd only be worn when you're scuba diving, or they'd only be worn when you're racing a motorcycle, are also not worn on an everyday basis, but are wearing apparel of chapter 6.

[00:37:29] Speaker 01:
Let me ask you this.

[00:37:30] Speaker 01:
Why did Judge Barnett decide this issue on summary judgment, as opposed to just walking through the steps of tariff classification?

[00:37:39] Speaker 00:
I believe that Judge Barnett did walk through the steps of tariff classification, and both parties moved for summary judgment.

[00:37:45] Speaker 00:
Plaintiff moved first.

[00:37:46] Speaker 00:
even though them conceding an issue of law is not binding on this court, I believe it's persuasive and a little disingenuous to come in front of this court and now say that there are issues of material fact.

[00:37:56] Speaker 00:
And I believe that Judge Barnett properly dissected Rubies 1 and Rubies 2 and looked at all the issues and then made a determination based on what the parties asked.

[00:38:05] Speaker 04:
I mean, what difference would it... I'm a little... These cases confuse me as to

[00:38:12] Speaker 04:
also as to when summary judgment is appropriate or not.

[00:38:15] Speaker 04:
But I don't understand how his analysis would be any different, except that he would go through the characteristics of this Santa suit, which he did in detail, and conclude as a matter of fact that they were fancy dress.

[00:38:28] Speaker 00:
Well, in the Court of International Trade, the United States is a defendant.

[00:38:31] Speaker 00:
It would be a bench trial.

[00:38:32] Speaker 00:
So Judge Barnett would be the gatekeeper and the finder of fact at a trial.

[00:38:35] Speaker 04:
Well, that's why I'm confused.

[00:38:37] Speaker 04:
What the characteristics of this clothing are agreed upon.

[00:38:42] Speaker 00:
They're not in dispute.

[00:38:43] Speaker 04:
And it's a two-part... So basically what he did was take the agreed-upon factual characteristics and then just apply those undisputed factual, the law to those undisputed factual characteristics.

[00:38:55] Speaker 00:
Yes, Your Honor.

[00:38:56] Speaker 00:
And it's a two-part inquiry.

[00:38:58] Speaker 00:
In the Court of International Trade, under classification case, the judge needs to look at the tariff terms, define what they are, and then look at the factual issues of the article.

[00:39:11] Speaker 00:
Article's use, its design, its purpose, its construction are not in dispute.

[00:39:16] Speaker 00:
Both questions collapse into one question, and it's appropriate for summary judgment.

[00:39:24] Speaker 00:
Thank you.

[00:39:24] Speaker 05:
Thank you, Your Honors.

[00:39:37] Speaker 05:
Getting back to the issue of

[00:39:40] Speaker 05:
sports clothing.

[00:39:42] Speaker 04:
Can I just clarify, I think this is confusing and maybe it's our fault for having loose language, but when we're talking about the phrase normal wearing apparel to come under this exception and as we said it in in Ruby's too, we're not talking about ordinary wear on the street, wear to work,

[00:40:05] Speaker 04:
kind of, that's not what that normal apparel means, right?

[00:40:08] Speaker 05:
No, I think you're right, Your Honor.

[00:40:10] Speaker 04:
I think what we're talking- Because otherwise nothing would ever fit in the fancy dress exclusion.

[00:40:14] Speaker 05:
Exactly.

[00:40:15] Speaker 05:
And that's why I don't see the analogy between sporting apparel and a Santa's costume.

[00:40:24] Speaker 04:
Well, they're different exclusions.

[00:40:25] Speaker 05:
Because a Santa's costume, sporting clothing is wearing apparel when you're playing a particular sport.

[00:40:35] Speaker 05:
Raincoat is wearing apparel when it's raining outside.

[00:40:38] Speaker 05:
A snowsuit is wearing apparel when it's snowing.

[00:40:41] Speaker 05:
A wetsuit is wearing apparel when you're in the water.

[00:40:44] Speaker 04:
Fancy dress is a costume that you wear to a costume party.

[00:40:49] Speaker 05:
Fancy dress is a costume that you would wear to a costume party, but if it fits the court's definition of fancy dress, it would have to meet ordinary wearing apparel standards.

[00:41:04] Speaker 04:
Now, what I... But again, ordinary wearing apparel standards doesn't mean clothes you would ordinarily wear.

[00:41:11] Speaker 05:
No, it's the standard, the way it's manufactured, it would be manufactured in the standards that would be used in the fashion, in the wearing apparel industry.

[00:41:22] Speaker 02:
Why doesn't that fit that standard?

[00:41:24] Speaker 05:
Excuse me?

[00:41:24] Speaker 02:
That's manufactured like a jacket.

[00:41:27] Speaker 02:
When somebody is making it, it may be a Santa jacket, it may have decorations, but at bottom, it's a jacket.

[00:41:34] Speaker 05:
but it's not made to wearing apparel standards.

[00:41:37] Speaker 05:
And the fact is... I don't know what that means.

[00:41:39] Speaker 02:
Wearing apparel standards.

[00:41:40] Speaker 02:
I mean, jackets... The standards for jackets can run the gamut.

[00:41:47] Speaker 05:
I understand that, but it's the way the costume is made.

[00:41:55] Speaker 05:
And that's why it's critical to look at Marc Beige's testimony and to look at our expert's testimony that talks about several factors

[00:42:04] Speaker 05:
that make it not meeting merit wearing apparel standards.

[00:42:07] Speaker 05:
The armhole is made improperly.

[00:42:11] Speaker 05:
It's very uncomfortable.

[00:42:12] Speaker 05:
The rise in the pants are made that no wearing apparel would be made that way.

[00:42:16] Speaker 05:
It's uncomfortable.

[00:42:17] Speaker 05:
The lining is not wearing apparel standards.

[00:42:20] Speaker 05:
The material not wearing apparel standards.

[00:42:22] Speaker 05:
The question is whether or not you agree with our assessment.

[00:42:27] Speaker 05:
Judge Barnett said in his decision that when you decide this issue,

[00:42:33] Speaker 05:
It's a two-fold test.

[00:42:36] Speaker 05:
And he says that the court must determine the meaning of the relevant tariff provisions, which is a question of law.

[00:42:45] Speaker 05:
His second test is the court must determine what the merchandise at issue is, which is a question of fact.

[00:42:54] Speaker 05:
That's what we're disputing, what this is.

[00:42:58] Speaker 05:
And if we're disputing what it is, it's a question of fact.

[00:43:01] Speaker 05:
And it's a question of fact

[00:43:03] Speaker 05:
then summary judgment is not appropriate vehicle.

[00:43:06] Speaker 05:
And yes, Judge Barnett would have ruled both cases, but we would have had our dated court to call our witnesses, bring testimony, and had a trial before a judge.

[00:43:17] Speaker 05:
A bench trial is the same thing as a jury trial.

[00:43:21] Speaker 05:
We never had an opportunity to go into court and bring our witnesses in and have them testify before the judge.

[00:43:28] Speaker 05:
And we believe that based on judges'

[00:43:32] Speaker 05:
Burnett's own ruling, what this merchandise of question is, is a question of fact.

[00:43:40] Speaker 05:
And if he held that it's a question of fact, then we cannot be granted a summary judgment motion, nor can the government be judged a summary judgment motion.

[00:43:54] Speaker 02:
Thank you.

[00:43:55] Speaker 02:
Your time is well expired.

[00:43:56] Speaker 02:
Thank you.

[00:43:56] Speaker 02:
We thank both sides and the case is submitted.

[00:43:59] Speaker 02:
That concludes our procedure.

[00:44:01] Speaker 02:
All rise.