Otter Products, LLC v. United States

United States Court of Appeals
for the Federal Circuit
______________________
OTTER PRODUCTS, LLC,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant-Appellant
______________________
2015-1866
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00269-CRK, Judge Claire R. Kelly.
______________________
Decided: August 24, 2016
______________________
LOUIS STEFAN MASTRIANI, Adduci, Mastriani &
Schaumberg, LLP, Washington, DC, argued for plaintiff-
appellee. Also represented by MUNFORD PAGE HALL II,
BEAU JACKSON, DANA WATTS, GIANG TONTHAT.
BEVERLY A. FARRELL, International Trade Field Of-
fice, Commercial Litigation Branch, Civil Division, United
States Department of Justice, New York, NY, argued for
defendant-appellant. Also represented by BENJAMIN C.
MIZER, JEANNE E. DAVIDSON, AMY M. RUBIN; BETH C.
BROTMAN, Office of Assistant Chief Counsel, International
Trade Litigation, United States Bureau of Customs and
2 OTTER PRODUCTS, LLC v. US
Border Protection, United States Department of Home-
land Security, New York, NY.
______________________
Before PROST, Chief Judge, O’MALLEY, and CHEN, Circuit
Judges.
O’MALLEY, Circuit Judge.
The United States appeals the judgment of the United
States Court of International Trade rendered on cross
motions for summary judgment in which the court classi-
fied the subject merchandise, imported by Otter Products,
LLC (“OtterBox”), under subheading 3926.90.9980 of the
Harmonized Tariff Schedule of the United States
(“HTSUS”) as “[o]ther articles of plastics” instead of as
“similar containers” under HTSUS subheading
4202.99.00. See Otter Products, LLC v. United States, 70
F. Supp. 3d 1281 (Ct. Int’l Trade 2015). We affirm.
BACKGROUND
A. The Subject Merchandise
OtterBox is the owner and importer of record of the
subject merchandise. The specific goods at issue are
durable and protective cases designed for certain styles of
smartphones—Blackberry Curve 9220, 9310, and 9320;
iPhone 4S; Samsung i500; and the HTC4 My Touch—and
an iPod touch, 4th generation. The cases consist of two
styles: the Commuter and the Defender Series. There is
no dispute as to which merchandise is at issue.
OtterBox described the Commuter Series cases as
“durable protective products comprised of two basic
pieces: a silicone mid-layer and, most importantly, a rigid
outer plastic shell.” Otter Products, 70 F. Supp. 3d at
1286 (citation and internal quotation marks omitted).
The Commuter Series cases “have a smooth exterior,
designed to allow them to slide easily in and out of pock-
ets.” Id. (citation and internal quotation marks omitted).
OTTER PRODUCTS, LLC v. US 3
“[T]he plastic components of these cases ‘do not cover or
enclose the screen’ of the device but do allow the consum-
er ‘the option of affixing to the screen of the electronic
device a thin, plastic, self-adhesive film to protect the
screen.’” Id. (citation omitted).
OtterBox described the Defender Series cases as con-
sisting of four pieces: “a clear protective plastic mem-
brane, a high-impact polycarbonate shell, a plastic belt
clip holster, and a durable outer silicone cover.” Id.
(citation and internal quotation mark omitted).
All of the cases at issue were imported into the United
States through the port of Memphis, Tennessee between
April 23, 2012, and July 11, 2012. Id. at 1284.
B. Customs’ Classification
Customs classified the cases as “similar containers”
under HTSUS subheading 4202.99.00 with a duty rate of
20% ad valorem. The relevant portions of HTSUS Head-
ing 4202 are:
4202
Trunks, suitcases, vanity cases, attache cases,
briefcases, school satchels, spectacle cases, binocu-
lar cases, camera cases, musical instrument cases,
gun cases, holsters and similar containers; travel-
ing bags, insulated food or beverage bags, toiletry
bags, knapsacks and backpacks, handbags, shop-
ping bags, wallets, purses, map cases, cigarette
cases, tobacco pouches, tool bags, sports bags, bot-
tle cases, jewelry boxes, powder cases, cutlery cas-
es and similar containers, of leather or of
composition leather, of sheeting of plastics, of tex-
tile materials, of vulcanized fiber or of paper-
board, or wholly or mainly covered with such
materials or with paper:
4202.99
Other:
Of materials (other than leather, composition
leather, sheeting of plastics, textile materials, vul-
canized fiber or paperboard) wholly or mainly cov-
ered with paper:
4202.99.9000
Other............................................................20%
OtterBox paid duties at the 20% ad valorem rate, and
the goods were liquidated between March 8, 2013, and
May 24, 2013, at that rate. OtterBox timely protested the
liquidation of the entries and sought accelerated disposi-
tion. The protest was deemed denied on August 1, 2013.
C. Court of International Trade Decision
OtterBox filed a complaint in the Court of Interna-
tional Trade contesting the denial of its protest under 19
U.S.C. § 1515. Joint Appendix (“J.A.”) 39. Therein,
OtterBox alleged that the subject merchandise should
have been classified as “other articles of plastics” under
HTSUS subheading 3926.90.99, at a duty rate of 5.3% ad
valorem. J.A. 49. The parties filed cross-motions for
summary judgment.
In a decision dated May 26, 2015, the Court of Inter-
national Trade granted OtterBox’s motion, finding that
the cases are not classifiable as “similar containers” under
Heading 4202, but instead are properly classified under
Heading 3926, as other articles of plastics. At the outset,
the court noted that, because there is no genuine dispute
as to the physical nature of the goods, the analysis “focus-
es on the legal question of whether heading 4202, HTSUS,
is the proper tariff heading for the subject merchandise,
or if not, which other heading, including 3926, HTSUS, is
the proper heading.” Otter Products, 70 F. Supp. 3d at
1287. The Court of International Trade explained that,
OTTER PRODUCTS, LLC v. US 5
because the goods are not listed eo nomine (by name) in
Heading 4202, the relevant inquiry is whether the cases
are “similar containers” to the exemplars listed therein.
Id. at 1288. The court concluded that they are not. Id.
The Court of International Trade explained that, to fall
under the general phrase “similar containers,” the mer-
chandise must possess the same essential characteristics
or purposes that unite the exemplars. Id. Pursuant to
this court’s precedent, the Court of International Trade
noted that four characteristics unite the exemplars of
Heading 4202: organizing, storing, protecting, and carry-
ing. Id. at 1289 (citing Avenues In Leather, Inc. v. United
States (Avenues III), 423 F.3d 1326, 1331 (Fed. Cir.
2005)).
The Court of International Trade began its analysis
by looking to the common dictionary definition of the
phrase “similar container,” which requires that the mer-
chandise be a “receptacle or object, which resembles or is
of a like nature or kind to the listed exemplars, and is
designed or has the capacity to contain, store, or hold
certain articles.” Id. at 1288–89. The court found that
“the Commuter and Defender Series cases do not fall
within the common or commercial meaning of the phrase
‘similar containers’” because each of the objects listed in
Heading 4202 “allow an article to be placed inside them
and/or taken out without much effort by opening or clos-
ing the receptacle.” Id. at 1289. “In contrast, the cases at
issue are specifically designed for and fit snuggly [sic]
over particular electronic devices . . . . It takes some
effort to remove a case from an electronic device where
the case generally remains on the device in a semi-
permanent manner.” Id.
The Court of International Trade found that, although
the subject cases protect, they do not organize, store, or
carry. Next, the Court of International Trade agreed with
OtterBox that the exemplars in Heading 4202 have an-
other characteristic that the Commuter and Defender
6 OTTER PRODUCTS, LLC v. US
Series cases do not share: “the inability to use items when
inside those containers.” Id. at 1292. While the listed
examples “are not ones which permit the use of the en-
closed item,” the electronic devices enclosed by the subject
merchandise “retain their full, 100 percent functionality
while inside an OtterBox case.” Id. (citation and internal
quotation marks omitted). Accordingly, the fact that the
electronic device remains fully functional is inconsistent
with objects enclosed by the exemplars listed in Heading
4202.
The court concluded that OtterBox satisfied its bur-
den of showing that the cases are not classifiable in
Heading 4202. The court then found that the subject
merchandise is properly classifiable under Heading 3926
because both the Commuter Series and Defender Series
cases are made of materials listed in chapter 39. Specifi-
cally, the Commuter Series consists of two basic compo-
nents: the rigid outer plastic shell and the silicone mid-
layer. Id. at 1294. The Defender Series consists of four
pieces: “a clear protective plastic membrane, a high-
impact polycarbonate shell, a plastic belt clip holster, and
a durable outer silicone cover.” Id. Because none of the
specific subheadings in chapter 39 refer to the subject
merchandise, the Court of International Trade found that
it is properly classified under 3926.90.9980: “[o]ther
articles of plastics.” Id. at 1295. The court therefore
granted OtterBox’s motion for summary judgment and
denied the government’s cross-motion. The government
timely appealed to this court.
DISCUSSION
“We review a grant of summary judgment by the
Court of International Trade for correctness as a matter of
law and decide de novo the proper interpretation of the
tariff provisions as well as whether there are genuine
issues of material fact to preclude summary judgment.”
OTTER PRODUCTS, LLC v. US 7
Millenium Lumber Distrib. v. United States, 558 F.3d
1326, 1328 (Fed. Cir. 2009).
We employ the same standard employed by the Court
of International Trade in assessing Customs’ classifica-
tion determinations. LeMans Corp. v. United States, 660
F.3d 1311, 1315 (Fed. Cir. 2011). A classification decision
involves two steps. First, the court must “ascertain[] the
meaning of specific terms in the tariff provisions.” Victo-
ria’s Secret Direct, LLC v. United States, 769 F.3d 1102,
1106 (Fed. Cir. 2014) (quoting Millenium, 558 F.3d at
1328). Second, the court determines “whether the subject
merchandise comes within the description of those terms.”
Id. “Determining the proper meaning of terms is a ques-
tion of law that we review de novo, while determining
whether the item fits within such meaning is a question of
fact that we review for clear error.” Avenues III, 423 F.3d
at 1330. When there is no dispute as to the nature of the
merchandise, the two-step classification analysis “collaps-
es entirely into a question of law.” Cummins Inc. v.
United States, 454 F.3d 1361, 1363 (Fed. Cir. 2006).
While we accord deference to a classification decision
“relative to its ‘power to persuade,’ we have ‘an independ-
ent responsibility to decide the legal issue of the proper
meaning and scope of HTSUS terms.’” Kahrs Int’l, Inc. v.
United States, 713 F.3d 640, 644 (Fed. Cir. 2013) (cita-
tions omitted).
The HTSUS scheme “is organized by headings, each of
which has one or more subheadings; the headings set
forth general categories of merchandise, and the subhead-
ings provide a more particularized segregation of the
goods within each category.” Wilton Indus., Inc. v. United
States, 741 F.3d 1263, 1266 (Fed. Cir. 2013). The proper
classification of merchandise entering the United States
is governed by the General Rules of Interpretation
(“GRIs”) of the HTSUS and the Additional United States
8 OTTER PRODUCTS, LLC v. US
Rules of Interpretation. Orlando Food Corp. v. United
States, 140 F.3d 1437, 1439 (Fed. Cir. 1998).
We apply the GRIs in numerical order, beginning with
GRI 1, which provides that “classification shall be deter-
mined according to the terms of the headings and any
relative section or chapter notes.” La Crosse Tech. v.
United States, 723 F.3d 1353, 1358 (Fed. Cir. 2013).
Where an “imported article is described in whole by a
single classification heading or subheading, then that
single classification applies, and the succeeding GRIs are
inoperative.” Id. (quoting CamelBak Prods., LLC v.
United States, 649 F.3d 1361, 1364 (Fed. Cir. 2011)).
According to GRI 1, the HTSUS headings and section
or chapter notes govern the classification of a product.
Kahrs, 713 F.3d at 644. Absent contrary legislative
intent, we construe HTSUS terms according to their
common and commercial meanings, which we presume
are the same. Id. “To discern the common meaning of a
tariff term, we may consult dictionaries, scientific author-
ities, and other reliable information sources.” Id. After
consulting the headings and section or chapter notes, we
may also consult the World Customs Organization’s
Explanatory Notes, which accompany each chapter of the
HTSUS. LeMans, 660 F.3d at 1316. Although the Ex-
planatory Notes are not legally binding, they are “persua-
sive” and are “generally indicative” of the proper
interpretation of the tariff provision. Id. (citation omit-
ted).
Here, the parties dispute whether the cases at issue
are properly classifiable under Heading 4202 or Heading
3926. As noted above, Heading 4202 covers, inter alia,
“[t]runks, suitcases, vanity cases, attache cases, briefcas-
es, school satchels, spectacle cases, binocular cases, cam-
era cases, musical instrument cases, gun cases, holsters
and similar containers.” Heading 3926 covers “[o]ther
articles of plastics and articles of other materials of head-
OTTER PRODUCTS, LLC v. US 9
ing 3901 to 3914.” The Chapter Notes provide that “chap-
ter [39] does not cover . . . trunks, suitcases, handbags or
other containers of heading 4202.” Note 2(m) to ch. 39,
HTSUS. Thus, if the imported cases are properly classifi-
able under Heading 4202, they cannot be classified under
Heading 3926 (which is part of Chapter 39).
Heading 4202 is an eo nomine provision, which means
that it describes goods according to their specific name.
La Crosse, 723 F.3d at 1358. It is undisputed that the
protective cases at issue here are not named in Heading
4202. Accordingly, to be classified within Heading 4202,
the merchandise must fall into the category of “similar
containers.”
Interpreting the term “similar containers” requires an
ejusdem generis analysis to determine if the goods are “of
the same kind” as those listed in the heading. Totes, Inc.
v. United States, 69 F.3d 495, 498 (Fed. Cir. 1995). “In
classification cases, ejusdem generis requires that, for any
imported merchandise to fall within the scope of the
general term or phrase, the merchandise must possess the
same essential characteristics or purposes that unite the
listed exemplars preceding the general term or phrase.”
Avenues III, 423 F.3d at 1330.
A court must first “consider the common characteris-
tics or unifying purpose of the listed exemplars in a
heading.” Victoria’s Secret, 769 F.3d at 1107 (quoting
Avenues in Leather, Inc. v. United States (Avenues I), 178
F.3d 1241, 1244 (Fed. Cir. 1999) (internal quotation
marks omitted)). The court can then “consider the mer-
chandise at issue with the identified unifying characteris-
tics (or purpose) in mind.” Id. “Classification of imported
merchandise under ejusdem generis is appropriate only if
the imported merchandise shares the characteristics or
purpose and does not have a more specific primary pur-
pose that is inconsistent with the listed exemplars.”
Avenues I, 178 F.3d at 1244. We have previously held
10 OTTER PRODUCTS, LLC v. US
that the “common characteristic or unifying purpose of
the goods in heading 4202 consists of ‘organizing, storing,
protecting, and carrying various’ items.” Avenues III, 423
F.3d at 1332 (quoting Avenues in Leather, Inc. v. United
States (Avenues II), 317 F.3d 1399, 1402 (Fed. Cir. 2003)).
On appeal, the government argues that the Court of
International Trade committed three reversible errors.
First, the government maintains that the court erred by
placing a restriction on the meaning of the term “contain-
er” that is not found in dictionary definitions: requiring a
concurrent and simple physical action to gain access.
Second, while the court did not formally hold that “similar
containers” under Heading 4202 must satisfy all four
ejusdem generis factors (organizing, storing, protecting,
and carrying), the government argues that the court
effectively imposed such a requirement. Finally, the
government argues that, even if “similar containers” must
satisfy all four factors, the Court of International Trade
erred by requiring that they satisfy the additional charac-
teristic of preventing anything from being operational
while in the containers.
OtterBox responds that the Court of International
Trade correctly determined that the products at issue:
(1) are not “containers”; (2) do not share all of the four
essential characteristics of goods listed in Heading 4202;
and (3) have a specific purpose that is fundamentally
inconsistent with the listed exemplars. Accordingly, the
subject merchandise is precluded from classification in
Heading 4202.
A. The Subject Merchandise
Is Not a “Container”
To be classifiable in Heading 4202, OtterBox’s prod-
ucts must be “containers.” The word “container” is not
defined in the HTSUS or in the legislative history. The
Court of International Trade therefore looked to the
parties’ proposed dictionary definitions, including the
OTTER PRODUCTS, LLC v. US 11
government’s preferred definitions: “a thing in which
material is held or carried; receptacle” and “a thing that
contains or can contain something; box, crate, can, jar,
etc.” Otter Products, 70 F. Supp. 3d at 1289. The gov-
ernment also cited the definition of “contain” meaning “to
have within; enclose.” Id. Looking to the list of examples
in Heading 4202, the court concluded that “each of these
objects allow an article to be placed inside them and/or
taken out without much effort by opening or closing the
receptacle.” Id.
On appeal, the government argues that there “is no
requirement that a box, crate, or receptacle require a
physical action to gain access.” Appellant Br. 17. Accord-
ing to the government, some of the specific exemplars
identified in Heading 4202—such as spectacle cases or
holsters—may be open at the top. The government main-
tains that, because “articles classifiable under Heading
4202 cannot be constrained in the manner that the trial
court held, such a construction of ‘container’ constitutes
legal error.” Id. And, the government asserts that, be-
cause electronic devices are held inside or are enclosed by
the cases at issue, each case itself is a “container” under
the common meaning of the word.
The Court of International Trade noted that the items
listed in the government’s definition of “container”—“box,
crate, can, jar”—“all require some concurrent and rela-
tively simple act to gain access to the receptacle (i.e.,
twisting a lid, lifting a cover).” Otter Products, 70 F.
Supp. 3d at 1289. In contrast, the cases at issue “are
specifically designed for and fit snuggly [sic] over particu-
lar electronic devices and do not require an action to open
or uncover the item.” Id. To that end, the court noted
that “it is more common to think of the cases as an addi-
tion/accessory to the electronic device which can be added
to or removed at the consumer’s liking.” Id. at 1289–90.
The court further found that the cases only “minimally
resemble containers.” Id. at 1292.
12 OTTER PRODUCTS, LLC v. US
Although the government argues that the court erred
in its construction of “container,” the Court of Interna-
tional Trade recognized that assessing the word “contain-
er” to determine the meaning of “similar container” is only
a starting point and that “some of the problems that arise
from describing the electronic device cases as containers
foreshadow the problems that will arise with trying to
classify the cases as ‘similar containers’ under heading
4202, HTSUS.” Id. at 1289. Thus, while the trial court
did note that the examples indicate that “containers,” as
used in Heading 4202, implies something which encases
something else, the court did not end its inquiry there nor
even rely heavily on that fact. This approach is consistent
with our case law, which requires that the court first
ascertain the meaning of the specific terms in the tariff
provision, and then determine whether the goods come
within the description of those terms. Kahrs, 713 F.3d at
644. Accordingly, we see no error in the court’s analysis.
B. The Subject Merchandise
Is Not a “Similar Container”
As noted, for the Commuter and Defender Series cas-
es to fall under the general phrase “similar containers,”
they must “possess the same essential characteristics or
purposes that unite the listed exemplars preceding the
general term or phrase.” Avenues III, 423 F.3d at 1332.
Also, as noted, the “common characteristic or unifying
purpose of the goods in heading 4202 consists of ‘organiz-
ing, storing, protecting, and carrying various’ items.”
Avenues III, 423 F.3d at 1332 (quoting Avenues II, 317
F.3d at 1402).
The parties dispute whether the subject merchandise
must possess all four of the characteristics uniting the
exemplars, or merely one of them, in order to be classified
as “similar containers” under Heading 4202. The parties
agree, however, that this court has not directly addressed
the issue. The Court of International Trade found it
OTTER PRODUCTS, LLC v. US 13
unnecessary to answer the question “because, in this case,
coverings which minimally resemble containers, serve a
protective purpose, and may at times serve some carrying
purpose, while allowing full functionality of the enclosed
merchandise are not ‘similar containers.’” Otter Products,
70 F. Supp. 3d at 1292–93.
On appeal, the government argues that this court’s
precedent provides “support for the conclusion that the
four characteristics are disjunctive.” Appellant Br. 11. In
support of this proposition, the government points to
three Federal Circuit decisions: Outer Circle Products v.
United States, 590 F.3d 1323, 1326 (Fed. Cir. 2010) (find-
ing that where the subject articles “organize, store, pro-
tect, or carry food or beverages,” they cannot be classified
under heading 4202 as no item in 4202 involves contain-
ment of any food or beverage) (emphasis added); Len-Ron
Manufacturing Co. v. United States, 334 F.3d 1304, 1313
(Fed. Cir. 2003) (“[T]he essential characteristics of the
articles falling within subheading 4202.32 are that they
generally organize, store, protect, or carry items.”) (em-
phasis added) (citing Totes, 69 F.3d at 498); and SGI, Inc.
v. United States, 122 F.3d 1468, 1472 (Fed. Cir. 1997)
(“The additional exemplars in HTSUS that the Court of
International Trade states makes the provision broader
than the comparable luggage provision under TSUS also
do not include containers that organize, store, protect, or
carry food or beverages.”) (emphasis added). The govern-
ment also cites two Court of International Trade decisions
to support its position that the test is disjunctive: Pro-
cessed Plastic Co. v. United States, 395 F. Supp. 2d 1296(Ct. Int’l Trade 2005) (stating that “merchandise can be
classified under heading 4202 even if it serves only one of
the four stated purposes”); and Jewelpak Corp. v. United
States, 97 F. Supp. 2d 1192 (Ct. Int’l Trade 2000). But see
Victoria’s Secret, 769 F.3d at 1109 (stating that the rele-
vant unifying characteristics for Heading 4202 are “organ-
izing, storing, protecting, and carrying various items”
14 OTTER PRODUCTS, LLC v. US
(quoting Avenues I, 178 F.3d at 1245) (emphasis added);
and Totes, 69 F.3d at 498 (noting that the essential char-
acteristics are “organizing, storing, protecting, and carry-
ing”) (emphasis added)).
This court has yet to hold expressly that a product
must share all four unifying characteristics to qualify as a
“similar container” under Heading 4202 or that sharing
some specific subset of those four characteristics is suffi-
cient. We take this opportunity to clarify that there is no
requirement that the subject merchandise meet all four
characteristics to qualify as a “similar container” under
Heading 4202. Courts should consider the four character-
istics collectively and then determine whether, in light of
those considerations, the classification would lead to an
inconsistency. If, for example, an item met only one of the
four characteristics, it almost certainly would not qualify
as a “similar container” under Heading 4202. Allowing a
single factor to satisfy the inquiry would, in almost all
conceivable scenarios, render the scope of “similar con-
tainers” so broad that it would lead to absurd results and
make consistent application of the standard all but im-
possible. See Appellee Br. 15 (“If items were classifiable
in the heading as ‘similar containers’ so long as they
organized, stored, protected, or carried something, there
would be almost no limit to the reach of the heading.”). It
would, moreover, divorce consideration of the individual
characteristics from any consideration of a unifying
purpose, making the latter virtually impossible to define.
As explained below, the Court of International Trade
engaged in the correct analysis. It correctly found that
the subject cases satisfy only one of the four characteris-
tics and have an essential purpose that is inconsistent
with the exemplars of Heading 4202.
1. Organize
First, the Court of International Trade held that the
cases “do not serve any organizational purpose” because
OTTER PRODUCTS, LLC v. US 15
they “can and do only hold one electronic device.” Otter
Products, 70 F. Supp. 3d at 1290. The court explained,
Even if it is possible to organize a single item
without reference to another item, the electronic
devices are not any more organized when they are
in the cases. Rather, once the sole electronic de-
vice is placed inside the cases, it remains one arti-
cle surrounded by the case that acts like a suit of
armor. The electronic device is just as organized,
tidy, arranged, or orderly before it is placed in the
cases as it is after.
Id.
On appeal, the government argues that the Court of
International Trade ignored the fact that some of the
exemplars of Heading 4202—including camera cases,
binocular cases, and holsters—each may hold only a
single article. See Appellant Br. 18. But OtterBox pre-
sented evidence that each of these exemplars often con-
tain multiple items. Appellee Br. 17 (“Camera cases often
contain extra lenses, batteries, cables, and memory cards.
Binocular cases often contain straps, cleaning cloths, lens
caps, and other accessories. Gun cases and holsters may
contain multiple guns and rounds of ammunition.”). The
same is true for the other exemplars in Heading 4202.
The government cites Processed Plastics for the prop-
osition that “simply ‘containing’ items is at least a rudi-
mentary form of organization.” 395 F. Supp. 2d at 1309.
As the Court of International Trade found, however, the
organizational capacity of the backpacks and beach bags
at issue in Processed Plastics “cannot be equated to the
cases at issue here.” Otter Products, 70 F. Supp. 3d at
1293. In Processed Plastics, it was undisputed that the
backpacks were used to carry multiple items and “the
beach bag is large enough to allow several lightweight
items to be organized and stored inside it, in much the
same manner as the backpacks.” 395 F. Supp. 2d at 1313.
16 OTTER PRODUCTS, LLC v. US
In a subsequent Court of International Trade decision,
moreover, the court specifically stated that, “[i]n the
context of heading 4202, organization implies multiple
items placed together in a single container.” Firstrax,
2011 Ct. Int’l Trade LEXIS 132, at *18 (collecting cases).
We agree with the Court of International Trade that
organization requires at least the possibility of storing
multiple items. Unlike the subject merchandise at issue
in Processed Plastics, the cases here contain a single item:
an electronic device.
2. Store
The Court of International Trade found that the cases
also do not possess the essential characteristic of “stor-
ing.” Specifically, the Court of International Trade noted
that the common understanding of “store” implies setting
something aside—“[i]t does not include present use but
looks toward using whatever item is stored in the future.”
Otter Products, 70 F. Supp. 3d at 1290.
According to the government, the cases serve the pur-
pose of “storing” because they are “keeping the enclosed
devices safe while in the pockets, backpacks or handbags
of their owners until their next use.” Appellant Br. 19.
As such, the government maintains, the cases satisfy the
court’s definition. We disagree.
The government’s argument conflates protection and
storage, but they are different. Satisfying the former is
not the same as satisfying the latter. As the Court of
International Trade correctly found, “an important char-
acteristic of the subject cases is allowing the electronic
device to remain fully functional, so that it may be used
while inside the subject case.” Otter Products, 70 F. Supp.
3d at 1290. We agree that, because the devices remain
fully functional, the cases do not comport with the com-
mon understanding of the term “storing.”
OTTER PRODUCTS, LLC v. US 17
3. Protect
It is undisputed that the electronic cases at issue pro-
tect. Id. (“[T]he parties do not dispute that the subject
cases ‘protect.’”).
4. Carry
The Court of International Trade acknowledged that
the Defender Series cases contain a belt clip that “pro-
vide[s] minimal carrying functionality for the electronic
devices.” Id. But “the belt clips are removable and, even
when connected, are only used or usable for brief periods
where the user is in motion and has determined to place
the electronic device in the belt clip, as opposed to a
pocket.” Id. at 1290–91.
On appeal, the government argues that all of the cas-
es satisfy the “carry” factor because “electronic devices are
held within the cases.” Appellant Br. 20. The govern-
ment submits that “carry” is defined as “to hold or support
while moving.” Id. (citing Webster’s New World College
Dictionary 215 (Third College Ed. 1976)). As OtterBox
points out, although the cases at issue “remain in place
while the user moves, . . . they add nothing to the carrying
capability that the electronic device, standing alone,
would not already have.” Appellee Br. 20. If anything,
the electronic device “carries” the case. We agree with the
Court of International Trade that the subject merchandise
simply does not “carry” anything for purposes of being
classified under Heading 4202.
5. The Court of International Trade
Did Not Add a Fifth Factor
As noted, “[c]lassification of imported merchandise
under ejusdem generis is appropriate only if the imported
merchandise shares the characteristics or purpose [unify-
ing the named exemplars] and does not have a more
specific primary purpose that is inconsistent with the
listed exemplars.” Avenues I, 178 F.3d at 1244; see also
18 OTTER PRODUCTS, LLC v. US
Victoria’s Secret, 769 F.3d at 1108 (“[E]ven if the mer-
chandise at issue contains certain features shared by
those listed in a heading, the presence of other features in
the merchandise ‘as a whole’ may negate similarity.”).
Applying this precedent, the Court of International Trade
found that the subject merchandise has a specific and
primary purpose that is inconsistent with the named
exemplars: “that the enclosed electronic device remains
fully functional.” Otter Products, 70 F. Supp. 3d at 1291.
In other words, while the listed exemplars hold items and
do not permit use of the enclosed item, the cases are
specifically designed to hold and protect an electronic
device while it remains 100% functional. The court found
that this characteristic is inconsistent with the purposes
of the exemplars in Heading 4202 and therefore distin-
guishes the subject merchandise from those exemplars.
The government argues that the Court of Internation-
al Trade “erroneously and impermissibly added a new
factor to this Court’s four factor ejusdem generis analysis
for Heading 4202, i.e., a requirement that a ‘contained’
article must be removed for use.” Appellant Br. 14.
According to the government, the Court of International
Trade “ignored” the fact that some camera cases and
binocular cases permit use of the enclosed item.” Id. at
16. But the Court of International Trade considered the
government’s arguments and found that they “miss the
point.” Otter Products, 70 F. Supp. 3d at 1294. Although
the government cited two Customs rulings classifying an
underwater camera case as a “similar container,” the
Court of International Trade explained that camera cases
are “eo nomine listed unlike electronic device cases and
neither of these rulings discuss the four uniting essential
characteristics or purposes of heading 4202, HTSUS.” Id.
Accordingly, the government’s attempts to rely on non-
binding Customs rulings that do not pertain to the mer-
chandise at issue are unpersuasive.
OTTER PRODUCTS, LLC v. US 19
The Court of International Trade correctly considered
whether the obvious purpose of the cases at issue differed
from the purposes of those expressly listed. That consid-
eration did not impose a fifth characteristic, as the gov-
ernment contends; it simply completed the appropriate
analysis, which requires a comparison of “purpose.”
Again, we find no error in the court’s analysis.
C. Classification under Subheading 3926.90.99
The Court of International Trade held that, because
the subject merchandise cannot be classified under Head-
ing 4202, it should be classified according to its material.
The court then determined that the proper classification
is subheading 3926.90.99: “[o]ther articles of plastics.” Id.
at 1295. The government does not challenge the Court of
International Trade’s conclusion that, if the subject cases
are not classified in Heading 4202, they are properly
classified in subheading 3926.90.99.
CONCLUSION
For the reasons stated above, we affirm the judgment
of the Court of International Trade in which the court
classified the subject merchandise imported by OtterBox
under subheading 3926.90.9980 of the HTSUS.
AFFIRMED