Importer Says CIT Committed 3 Legal Errors in Finding the Comfy Is a Pullover

Cozy argued that CIT Judge Stephen Vaden made "three reversible legal errors," the first of which is that the judge "misinterpreted" the Federal Circuit's criterion for classification under Harmonized Tariff Schedule heading 6110, which provides for pullovers. CAFC in Rubies Costume v. U.S. said heading 6110 articles provide "some warmth" but don't protect against "extreme cold." Vaden erred in finding that this requirement means a "subjective case-by-case analysis whether an article is technically capable of being actually used in freezing temperatures," the brief said.

The second legal error occurred when the trade court "misinterpreted this Court’s criterion that an article 'covers the upper body' to mean an article of Heading 6110 can also cover the lower body without any length limitation," the brief said. The CAFC's precedent in Victoria's Secret Direct v. U.S., along with heading 6110's exemplars and CBP's past position, all show that this criterion "means the article covers only the upper body from the neck to the vicinity of the waist, not the lower body substantially below the vicinity of the waist to the knees or below," the brief said.

Lastly, Vaden erred when applying the Supreme Court's test for classification of articles under Chapter 61 in Arnold v. U.S. "by reviewing only whether an article is frequently worn" and not reviewing whether the article is "worn or recognized as an article of dress," the importer said.

Cozy centered its arguments on the Rubies Costume decision, which said goods that qualify as pullovers under heading 6110 cover the upper body, are worn "over either undergarments or other clothing" and provide some warmth but don't guard against extreme cold.

The importer said CAFC and other courts "disfavor subjective case-by-case legal tests," since litigants don't know the legal standard a trial court will hold them to, which stifles early resolution of cases and leads to "an exhaustive assortment of expert testimony." Cozy argued that this is "exactly what occurred here" following Vaden's invention and application of a "new, disfavored subjective standard, which has no basis" in the Harmonized Tariff Schedule of the U.S. nor in precedent.

The trade court first said "without any legal support" that "extreme cold" means "a range of temperatures at, near, or below freezing," Cozy said (see 2506170063). Cozy said the parties didn't know the court would settle on this range of temperatures to be a "key determining factor in the case," making it "virtually impossible for the parties to resolve the case on their own prior to or during trial" despite the parties' agreement on the product's physical characteristics.

Vaden "arbitrarily" found that "extreme cold means severe, zero-degree Celsius, or even colder, air temperatures that are far beyond mere wind or rain, which only occur in warmer than freezing temperatures," the brief said. Since the term "extreme" simply means "a higher degree than normal," another trial court could "easily" find that the term can refer to "much milder temperatures" that are rare for a certain location, such as "40 degrees Fahrenheit, which is extreme in certain parts of the country such as the pacific, southwestern, and southeastern regions," the brief said.

Cozy then faulted Vaden for his reliance on the expert testimony submitted in the case. None of the expert witnesses field-tested the product, meaning the experts' testimony on the Comfy's "potential effectiveness in cold weather was unreliable speculation unsupported by scientific methodology that had little if any probative value," the brief said.

Since the court set up a "vague, unworkable subjective test with a moving target, it created an evidentiary situation in which the parties were left to guess which type of speculative expert testimony the court would find most persuasive instead of being able to focus on a clear, objective standard," Cozy argued. The Federal Circuit should reverse, since upholding Vaden's test for extreme cold "will make future litigants less, not more, cognizant as to what meets the test," likely burdening the courts with unnecessary litigation.

The importer added that Vaden failed to consider the HTS, the Explanatory Notes and CBP's official position regarding the item in coming to its conclusion. Regarding the HTS, the trade court erred by considering "use" rather than the text of the HTS when analyzing heading 6110. While Vaden said heading 6110 "suggests a type of use," since a pullover must be "put on by being pulled over the head," Cozy said "how an article is put on has nothing to do with its intended or actual use." In addition, CIT has previously said heading 6110 is an eo nomine and not a "principal use" provision.

Cozy also centered on CBP's "longstanding official published position that articles like the Comfy are excluded from heading 6110." Vaden "ignored the most probative and salient evidence in the case: Customs’ admission against interest that its longstanding official published interpretation of the 'some warmth/extreme cold' criterion is directly opposite of its litigation position in this case," the brief said.