Appeal from the United States Court of International Trade in No. 07-CV-0347, Chief Judge Timothy C. Stanceu. Appeal from the United States Court of International Trade in No. 07-CV-0361, Chief Judge Timothy C. Stanceu.
FRANCES P. HADFIELD, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of New York, New York, argued for plaintiffs-appellants. With her on the brief were ALAN R. KLESTADT and ROBERT B. SILVERMAN. Of counsel was ROBERT FLEMING SEELY.
BEVERLY A. FARRELL, Trial Attorney, International Trade Field Office, 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, and AMY M. RUBIN, Acting Assistant Director.
Before MOORE, REYNA, and TARANTO, Circuit Judges., OPINION filed by Circuit Judge TARANTO., Dissenting Opinion filed by Circuit Judge REYNA.
Taranto, Circuit Judge.
These related actions, which the Court of International Trade tried together, require the classification of certain clothing under the Harmonized Tariff Schedule of the United States (HTSUS). Specifically at issue are the Bra Top, which is imported by Victoria's Secret Direct, LLC, and the Bodyshaper, which is imported by Lerner New York, Inc. Both are sleeveless garments, made of knit fabric, worn as tops. Both are designed for two purposes, body coverage and bust support, providing enough of each for a wide range of women to wear them in a wide range of public settings without needing a garment on top or a separate brassiere underneath. The Court of International Trade classified them under heading 6114 of the HTSUS, which covers " [o]ther garments, knitted or crocheted." Lerner New York, Inc. v. United States, 908 F.Supp.2d 1313 (Ct. Int'l Trade 2013) (" Lerner" ); Victoria's Secret Direct, LLC v. United States, 908 F.Supp.2d 1332 (Ct. Int'l Trade 2013) (" Victoria's Secret " ).
Victoria's Secret and Lerner contend that the garments should have been classified under heading 6212, which covers
" [b]rassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof." (Emphasis added). We reject classification of these items under heading 6212. The Bra Top and Bodyshaper are not " similar articles" under heading 6212 because they do not possess the unifying characteristics of the listed items in that heading. In this appeal, once heading 6212 is ruled out, the Bra Top and the Bodyshaper must be classified under heading 6114. And once heading 6114 is chosen, there is no dispute about which subheading applies to each garment. We therefore affirm the judgment of the Court of International Trade.
Both Victoria's Secret's Bra Top and Lerner's Bodyshaper were designed to be a combination of two garments: a camisole, which is similar to a tank top in covering the body from the waist to above the bust, but generally with narrower shoulder straps and a lower neckline; and a brassiere. The Bra Top and the Bodyshaper both contain a " shelf bra" : an interior layer of fabric--whose upper edge is attached to the camisole and whose lower edge is an elastic band not attached to the camisole--that provides bust support, though to a lesser degree than many (though not all) brassieres. See, e.g., Victoria's Secret at 1339 n.7. This combination garment is " known in the apparel industry as a 'shelf bra camisole,'" a single garment designed so that many women will wear it in ordinary public settings without a layering garment on top or a separate brassiere underneath. Id. at 1340, 1343; Lerner at 1321, 1323.
" A shelf bra camisole is designed for two purposes, coverage and support." Victoria's Secret at 1343; Lerner at 1323. As to coverage, it has not been disputed here that the Bra Top and the Bodyshaper cover portions of the wearer's upper body for warmth and modesty. See, e.g., Victoria's Secret J.A. 746 (plaintiffs' joint, post-trial proposed findings of fact, recognizing that both products are " garment[s] worn above the waist" whose " function . . . is to provide modesty or warmth" ). The Court of International Trade made findings to that effect, stating that " [t]he uncontested facts establish that the [Bra Top and the Bodyshaper] provide partial covering of the wearer's torso for warmth and modesty." Victoria's Secret at 1355; Lerner at 1327; see also Lerner at 1321 (" One of the purposes of the Bodyshaper is to provide modesty to the wearer." ). The degree of coverage is more than that provided by a " brassiere," as the term is ordinarily used, and the coverage is sufficient that the garment is designed generally to be worn in public without layers over the garment. See Victoria's Secret at 1341 (" Victoria's Secret markets the Bra Top as a wardrobe 'essential' that can be worn by itself as a top." ); Lerner at 1321 (" The Bodyshaper is intended to be worn in public." ).
As to body support, the parties disputed the degree to which--though not the fact that--the Bra Top and the Bodyshaper serve that purpose. Ultimately, the Court of International Trade found that the Bra Top and the Bodyshaper are " designed to provide support to the bust of the wearer" and in fact " provide a certain degree of such support when worn." Victoria's Secret at 1344; Lerner at 1324. The court found that, for both products, the " cup, underbust band, and straps all work together to provide support to the wearer's bust" " in a manner identical to that of soft-cup brassieres." Victoria's Secret at 1343-44; Lerner at 1323. Because the garments provide some level of built-in support, " a separate brassiere . . . need not be worn underneath" the Bra Top or the Bodyshaper.
Victoria's Secret at 1343; Lerner at 1323.
Victoria's Secret and Lerner, in marketing the Bra Top and Bodyshaper, emphasized the dual purposes of coverage and support. For example, the Court of International Trade found that " '[m]ost important' to Victoria's Secret, from 'a merchandising perspective,' is that the Bra Top provides the wearer '[t]he support of a bra and the use of a top in one.'" Victoria's Secret at 1341; see also id. at 1341-42 (" Victoria's Secret brought the Bra Top into its assortment 'because it was a top that provided support in lieu of a bra.'" ). Similarly, the court found that " Lerner's website marketing materials for the Bodyshaper depict the garment being worn with pants or a skirt, and often with no layering garment being worn over the Bodyshaper," Lerner at 1320, and Lerner also identifies the " shelfbra" aspect in marketing the Bodyshaper, Lerner J.A. 631.
Lerner imported a shipment of Bodyshapers in 2005, and Victoria's Secret imported a shipment of Bra Tops in 2006. The Bureau of Customs and Border Protection (CBP) classified Victoria's Secret's Bra Tops under subheading 6109.10.00 of the HTSUS, which has a 16.5% duty rate and covers " T-shirts, singlets, tank tops and similar garments, knitted or crocheted: Of cotton." On the other hand, CBP classified Lerner's Bodyshapers under subheading 6114.30.10, which has a 10.8% duty rate. The Explanatory Notes to the HTSUS describe heading 6114--which reads, " Other garments, knitted or crocheted" --as a residual provision that " covers knitted or crocheted garments which are not included more specifically in the preceding headings of this Chapter." Explanatory Note 61.14.
Victoria's Secret and Lerner each protested under 19 U.S.C. § 1514, and CBP denied both protests. On November 21, 2007, the companies filed separate suits in the Court of International Trade, each contending that its merchandise should have been classified under subheading 6212.90.00, which has a 6.6% duty rate and reads:
6212: Brassieres, girdles, corsets, braces, suspenders, garters and similar articles and parts thereof, whether or not knitted or crocheted:
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In the alternative, the two companies argued for classification under heading 6114.
The Court of International Trade--" [d]ue to the presence of common issues of fact," Victoria's Secret at 1337; Lerner at 1317--tried the cases together during a three-day bench trial. On May 1, 2013, the court issued an opinion and judgment in each case, classifying the Bra Top and the Bodyshaper under the residual garment provision, heading 6114. The court's analysis in each opinion proceeded in three steps, considering, in turn, whether the merchandise should be classified under the ...