CAFC Judges Question Whether Planners Are Diaries, Calendars, Notebooks
Judges at the U.S. Court of Appeals for the Federal Circuit pressed counsel for importer Blue Sky the Color of Imagination and the government during oral argument on Oct. 7 in the importer's customs classification suit on its notebooks with calendars. During the argument, Judges Alan Lourie, Raymond Chen and William Bryson grappled with whether the court is bound by its 2010 ruling in Mead v. U.S. and whether the goods are properly classified as calendars or diaries (Blue Sky The Color of Imagination v. U.S., Fed. Cir. # 24-1710).
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Last year, the Court of International Trade held that the notebooks are properly classified as "diaries" under Harmonized Tariff Schedule subheading 4820.10.2010, rejecting classification under 4910.00.2000 as calendars (see 2404100052). CBP had previously classified the goods as "other" notebooks under subheading 4820.10.4000.
On appeal, Blue Sky argued that the Federal Circuit's decision in Mead is binding precedent, noting that the Mead decision included language that described diaries as records of past events, while Blue Sky’s planners are intended to be records of future events (see 2405280063). The importer argued that CIT Judge Jane Restani impermissibly went against this precedent by holding that a diary is also "a book in which you write things that you must remember to do."
During oral argument, Bryson asked whether an "engagement notebook," in which every single page is a calendar but that has space for writing is a calendar under the HTS. While Christopher Duncan, counsel for Blue Sky, said that it is, Bryson said that would be "flatly inconsistent" with the Chapter 40 Explanatory Notes, which say that calendars can't have writing space and that engagement calendars are a type of diary. Duncan agreed that the Explanatory Notes are inconsistent with the court's ruling in Mead, though he emphasized that only Mead is binding on the court for the proposition that a diary "is only a retrospective record of the past."
Bryson then asked DOJ attorney Monica Triana about the role of Mead, noting that Restani held that the case isn't bound by Mead even though Triana thought it was. Chen then asked whether, assuming the CAFC is bound by Mead and that the panel can't rely on Restani's analysis, the appellate court should remand the case to the trade court to conduct a "new analysis that's not infected with this diary framework." The judge added he thought this framework was a "little problematic" due to its tension with Mead, presenting the solution that the court "needs a do-over."
Triana urged the appellate court not to remand, since there's no issue of fact and the case presents purely legal questions on the scope of HTS heading 4910 and whether the goods fit under this heading.
Chen also said he "got a little confused" by the government's brief regarding what exact subheading under HTS heading 4820 the government is advocating for. While at CIT, the U.S. argued that the goods are "other" notebooks under subheading 4820.10.4000. After Restani said the goods are diaries under subheading 4820.10.2010, the government began arguing that heading 4820 encompasses the goods as "similar articles independent of the term 'diaries.'"
Indicating that she still believes Mead to be binding on the court, precluding the conclusion that Blue Sky's planners are diaries, Triana said the goods are "similar articles" to the exemplars found in HTS heading 4820 and fall under the heading's "other" provision.
Bryson asked Duncan which subheading under heading 4820 should the goods fall under, assuming that the planners aren't diaries and that the court also finds they don't fit under heading 4910. Duncan replied that "it doesn't matter what type of classification within heading 4820 you're talking about" if the court agrees with the U.S. and Restani that "there are multiple classifications at play," since the court must look to the goods' "essential character," which is clearly as a calendar.
During argument, Duncan also emphasized that CBP recently found a similar product to be a calendar in a customs ruling. When asked about this ruling, Triana said CBP rulings aren't binding, the agency never should have issued the ruling, given that the issue is currently before the court and, to any extent it cuts against the government's position, the decision "was wrong."