Opinion
No. 90-1437.
March 1, 1991.
Steven P. Florsheim, Grunfeld, Desiderio, Lebowitz Silverman, New York City, argued, for plaintiff-appellant.
Saul Davis, Commercial Litigation Branch, Dept. of Justice. Washington, D.C., argued, for defendant-appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen., David M. Cohen, Director, and Joseph I. Liebman, Atty. in Charge, Intern. Trade Field Office.
Appeal from the Court of International Trade.
Before RICH, MAYER, and LOURIE, Circuit Judges.
P.F. Palos (Palos) appeals the judgment of the United States Court of International Trade dismissing the complaint. See Palos v. United States, 737 F. Supp. 1191 (Ct. Int'l Trade 1990). The court held on summary judgment that the Customs Service properly classified imported merchandise as "other footwear" according to item 700-60 of the Tariff Schedules of the United States. Id. at 1192. We affirm on the basis of the court's opinion, which we adopt with the following further comment.
The trial court mentions United States v. Shokai, 14 Ct.Cust.App. 392 (1927), which Palos claims stands for the proposition that the term "upper" means all parts above the sole which are not ornamental; the court interpreted Shokai as establishing that the present footwear do not contain uppers, since, after importation, thongs will be added, which Shokai held were uppers. Palos, 737 F. Supp. at 1195. We agree with the trial court's analysis, but conclude that Shokai supports the court's decision independently of the fact that thongs were added after importation. In Shokai, the United States Court of Customs Appeals held that the term "upper" refers to a portion of footwear, which "extends above the sole, partially covering the foot and holding the sole in place. . . ." Shokai, 14 Ct.Cust.App. at 397. In the case at hand, there is no dispute that the nib extends beyond the sole. However, unlike Shokai, the nib does not partially cover the foot (it fits between the toes), and the nib does not hold the sole in place (it acts as an anchor to secure the thong to the sole). Therefore, although the nib does extend beyond the sole, the nib alone does not constitute an "upper".
AFFIRMED.