Appeal from the United States Court of International Trade in No. 09-CV-0416 and 07-CV-0413, Senior Judge Judith M. Barzilay.
DANIEL J. GLUCK, Simon Gluck & Kane LLP, of New York, New York, argued for plaintiff-appellant. With him on the brief were CHRISTOPHER M. KANE and MARIANA DEL RIO KOSTENWEIN.
MARCELLA POWELL, Trial Attorney, 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, of Washington, DC; and AMY M. RUBIN, Acting Assistant Director, International Trade Field Office, of New York New York. Of counsel on the brief was MICHAEL W. HEYDRICH, Office of the Assistant Chief Counsel, Interntional Trade Litigation, United States Customs and Border Protection, of New York, New York.
Before NEWMAN, LOURIE, and TARANTO, Circuit Judges.
Taranto, Circuit Judge .
Riddell, Inc., challenges the Court of International Trade's upholding of the classification of Riddell's imported football jerseys, pants, and girdles as " articles of apparel" under chapters 61 and 62 of the Harmonized Tariff Schedule of the United States (HTSUS). Riddell, Inc. v. United States, 906 F.Supp.2d 1355, 1368-69 (Ct. Int'l Trade 2013). Riddell contends that the United States Customs Service (now United States Customs and Border Protection) should have classified the merchandise as " sports . . . equipment" under subheading 9506.99.20 within chapter 95 of the HTSUS. We reject Riddell's claim to a chapter 95 classification. For the jerseys and pants, we affirm the Customs classification under the particular provisions within chapters 61 and 62 that Customs identified. For the girdles, we conclude, as Customs now agrees, that the proper apparel classification is different from the one Customs initially identified.
The nature of Riddell's merchandise is not in dispute. The jerseys, pants, and girdles that Riddell imported are all designed to be worn, in conjunction with protective pads (having both hard and soft components), during the playing of football. As imported, though, none of the merchandise contains such protective items.
The pants, made of polyester and spandex, end just below the knee and have elastic leg openings. They contain four interior pockets to hold protective pads--two thigh pads and two knee pads. In tandem with a girdle, the pants also help secure three additional pads around a player's waist--two hip pads and one tail pad. The pants are tailored to wear with the protective pads.
The jerseys, made of 100% polyester knit mesh, have v-neck openings and short sleeves with elastic cuffs. The shoulders, chest, and back are cut with just enough extra room to accommodate shoulder pads while holding them snugly to the body. The jerseys have substantial stitching at the shoulders to withstand the impacts common in full-contact football.
The girdles, made of polyester, are worn beneath football pants and extend from the waist to the thigh. They have several internal pockets to hold hip and tail pads. They function, together with the pants, to hold padding in place.
Customs classified all of the football jerseys, pants, and girdles at issue here as articles of apparel under either chapter 61 or chapter 62 of the HTSUS. Riddell filed two protests under 19 U.S.C. § 1514, arguing that the merchandise should have been classified as football equipment under chapter 95 of the HTSUS. Customs denied Riddell's protests. Invoking 28 U.S.C. § 1581(a), Riddell then filed two
civil actions in the Court of International Trade to challenge the classifications. Because the actions involved similar merchandise and the same core issue of law, the Court of International Trade consolidated them.
Riddell and the United States filed cross-motions for summary judgment. The parties agreed about the nature of the subject merchandise, but disagreed about the scope of the relevant tariff provisions. Riddell argued that the football jerseys, pants, and girdles are properly classified as football equipment under chapter 95, entitled " Toys, games and sports requisites; parts and accessories thereof." Specifically, Riddell argued for classification under subheading 9506.99.20, which covers the following:
9506. Articles and equipment for general physical exercise, gymnastics, athletics, other sports (including table-tennis) or outdoor games, not specified or included elsewhere in this chapter; swimming pools ...