Amicus Curiae Brief — Ford Motor Company, Petitioner v. United States

No. 19-1026

IN THE

Supreme Court of the United States

FORD MOTOR COMPANY,

Petitioner,

—v.—

UNITED STATES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

MOTION OF THE AMERICAN ASSOCIATION OF

EXPORTERS AND IMPORTERS FOR LEAVE TO FILE

BRIEF AMICUS CURIAE IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

John M. Peterson

Counsel of Record

Richard F. O’Neill

Patrick B. Klein

NEVILLE PETERSON LLP

55 Broadway, Ste. 2602

New York, NY 10006

(212) 635-2730

jpeterson@npwny.com

March 18, 2020

1

2

MOTION OF THE AMERICAN ASSOCIATION OF

EXPORTERS AND IMPORTERS FOR LEAVE TO FILE

BRIEF AMICUS CURIAE IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI

The American Association of Exporters and

Importers (“AAEI”) respectfully files this motion for

leave of Court to file the attached amicus curiae brief

in support of the Petition for a Writ of Certiorari.1

AAEI expresses its grave concerns over the

Federal Circuit’s holding that eo nomine provisions

of the Harmonized Tariff Schedule of the United

States (“HTSUS”), which are deemed by a reviewing

court to “inherently suggest use,” A.11, should be

evaluated using the test reserved by the HTSUS’ Additional U.S. Rules of Interpretation (“ARI”) 1(a) and

(b) for “tariff provisions controlled by use.” The Federal Circuit’s holding blurs well-established rules of

tariff construction and injects intolerable uncertainty

into the classification of imported goods.

The Court should also summarily reverse the

finding of the Federal Circuit that Ford waived alter-

1 No counsel for a party authored this motion in whole or in

part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this motion. No

person other than AAEI, its members, or its counsel made a monetary contribution to its preparation or submission.

Petitioner has granted permission for the filing of the attached Amicus Curiae brief, which is the subject of this Motion.

AAEI has not yet received consent from the Respondent. Accordingly, AAEI now moves this Court for leave.

3

native claims which were made before, but not decided by, the United States Court of International

Trade, by not raising them in its Appellee Brief in

the Circuit court. This holding is inconsistent with

the position adopted by every other Circuit Court of

Appeals.

AAEI has been, for nearly a century, the voice

of American businesses in support of free and open

trade among nations. AAEI represents numerous

manufacturers, distributors, and retailers of a wide

spectrum of products, including electronics, machinery, footwear, automobiles, automotive parts, food,

household consumer goods, textiles and apparel—as

well as international companies, freight forwarders,

customs brokers, and banks. AAEI is the only national association that represents the interests of exporters and importers before the United States, its

agencies, Congress, the trade community, foreign

governments, and international organizations.

AAEI respectfully asserts its legitimate, substantial and compelling interests to protect against

the injection of intolerable uncertainty into the classification of imported goods, and to promote the continued use of well-established rules of tariff construction.

CONCLUSION

For these reasons, American Association of Exporters and Importers respectfully requests that this

Court grant this Motion for Leave to File the attached

4

Amicus Curiae brief in support of the Petition for Certirorari.

Respectfully Submitted,

John M. Peterson

Counsel of Record

Richard F. O’Neill

PATRICK B. KLEIN

NEVILLE PETERSON LLP

One Exchange Plaza

55 Broadway, Ste. 2602

New York, NY 10006

(212) 635-2730

jpeterson@npwny.com

March 18, 2020

5

No. 19-1026

IN THE

Supreme Court of the United States

FORD MOTOR COMPANY,

Petitioner,

—v.—

UNITED STATES,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT

BRIEF OF AMICUS CURIAE, THE AMERICAN

ASSOCIATION OF EXPORTERS AND IMPORTERS IN

SUPPORT OF PETITION FOR WRIT OF CERTIORARI

John M. Peterson

Counsel of Record

Richard F. O’Neill

Patrick B. Klein

NEVILLE PETERSON LLP

55 Broadway, Ste. 2602

New York, NY 10006

(212) 635-2730

jpeterson@npwny.com

March 18, 2020

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ....................................... ii

INTEREST OF AMICUS CURIAE ............................ 5

SUMMARY OF ARGUMENT .................................... 6

STATEMENT .............................................................. 9

REASONS FOR GRANTING THE PETITION ....... 11

I.

Eo Nomine and Use Provisions of the

HTSUS are Distinct and Require Different

Classification Tests. ....................................... 11

II.

Use is Relevant for Determining Common

Meaning of an Eo Nomine Tariff Provision,

Therefore, a “Principal Use” Test is

Unnecessary. .................................................. 15

III.

The Federal Circuit’s “Waiver”

Determination Should be Summarily

Reversed. ........................................................ 19

CONCLUSION.......................................................... 21

(i)

ii

TABLE OF AUTHORITIES

PAGE(S)

Cases

Avenues in Leather, Inc. v, United States, 423

F.3d 1326 (Fed. Cir. 2005) ............................... 16, 17

Bausch & Lomb, Inc. v. United States, 148

F.3d 1363 (Fed. Cir. 1998) ..................... 8, 12, 13, 17

Brookside Veneers, Ltd. v. United States, 847

F.2d 786 (Fed. Cir. 1988) ................................... 7, 12

Brown v. City of New York, 862 F.3d 182 (2d

Cir. 2017) ................................................................ 20

Carborundum Co. v. United States, 536 F.2d

373 (C.C.P.A. 1976) ................................................ 10

Carl Zeiss, Inc. v. United States, 195 F.3d

1375 (Fed. Cir. 1999).......................................... 7, 12

Clarendon Mktg. Inc. v. United States, 21

C.I.T. 59 (1997) ....................................................... 13

Crocker v. Piedmont Aviation, Inc., 49 F.3d

735 (D.C. Cir. 1995) ............................................... 20

F.W. Myers, Inc. v. United States, 12 C.I.T.

566 (1988) ............................................................... 17

Hampco Apparel Inc. v. United States, 12

C.I.T. 92 (1988) ....................................................... 19

Heartland By-Products Inc., 264 F.3d 1126

(Fed. Cir. 2001) ...................................................... 19

Hernandez v. Starbuck, 69 F.3d 1089 (10th

Cir. 1995) ................................................................ 20

Hillman v. IRS, 263 F.3d 338 (4th Cir. 2001). ......... 21

iii

PAGE(S)

Irwin Ind. Tool Co. v. United States, 920 F.3d

1356 (Fed. Cir. 2019).............................................. 18

Kahrs Int’l v. United States, 713 F.3d 640

(Fed. Cir. 2013) ...................................................... 18

Marubeni America Corp. v. United States, 35

F.3d 530 (Fed. Cir. 1994) ......................................... 9

Michaelian & Kohlberg, Inc. v. United States,

22 C.C.P.A. 551 (1935) ........................................... 18

Northwest Airlines, Inc. v. United States, 17

F. Supp. 2d 1008 (Ct. Int’l Tr. 1998) ..................... 17

Pleasure-Way Industries, Inc. v. United

States, 878 F.3d 1348 (Fed. Cir. 2018) .................. 18

Processed Plastic Co. v. United States, 473

F.3d 1164 (Fed. Cir. 2006) ..................................... 16

S&T Imports, Inc. v. United States, 78 Cust.

Ct. 45 (1977) ........................................................... 16

Sports Graphics, Inc. v. United States, 24 F.3d

1390 (Fed. Cir. 1994).............................................. 17

Thompson v. Hebdon, 140 S. Ct. 348 (2019) ............ 19

United States v. Citroen, 223 U.S. 407 (1912)..passim

United States v. Schoverling, 146 U.S. 76

(1892) ...............................................................passim

Universal Electronics Inc. v. United States,

112 F.3d 488 (Fed. Cir. 1997) .................................. 8

Worthington v. Robbins, 139 U.S. 337 (1891)...passim

iv

PAGE(S)

Statutes

19 U.S.C. § 1315 ........................................................ 20

19 U.S.C. § 1625 .................................................. 15, 19

Other Authorities

Skattministeriet v. Estron, Case C138-18

(European Court of Justice, June 15, 2019).......... 11

WTO Appellate Body Report, China Measures Affecting Imports of Automobile

Parts, WT/DS340/AB/R (December 15, 2008) ....... 11

5

INTEREST OF AMICUS CURIAE

Pursuant to Supreme Court Rule 37, amicus curiae the American Association of Exporters and Importers (“AAEI”) submit this amicus curiae brief in

support of Petitioner.1

AAEI has been, for nearly a century, the voice

of American businesses in support of free and open

trade among nations. AAEI represents numerous

manufacturers, distributors, and retailers of a wide

spectrum of products, including electronics, machinery, footwear, automobiles, automotive parts, food,

household consumer goods, textiles and apparel—as

well as international companies, freight forwarders,

customs brokers, and banks. AAEI is the only national association that represents the interests of exporters and importers before the United States, its

agencies, Congress, the trade community, foreign governments, and international organizations.

1 Pursuant to Rule 37.6, Amicus Curiae AAEI affirms that no

counsel for any party authored this brief in whole or in part and

that no person or entity other than amicus curiae, its members,

or its counsel made a monetary contribution specifically for the

preparation or submission of this brief.

Pursuant to Rule 37.3(a), Petitioner has granted permission

for the filing of the instant amicus curiae brief. Amicus Curiae

has not yet received consent from the Respondent. Accordingly,

Amicus Curiae has moved for leave to file this brief.

6

SUMMARY OF ARGUMENT

The Court should overrule the Federal Circuit’s

holding that eo nomine provisions of the Harmonized

Tariff Schedule of the United States (“HTSUS”),

which are deemed by a reviewing court to “inherently

suggest use,” A.11, should be evaluated using the test

reserved by the HTSUS’ Additional U.S. Rules of Interpretation (“ARI”) 1(a) and (b) for “tariff provisions

controlled by use.” The Federal Circuit’s holding blurs

well-established rules of tariff construction and injects

intolerable uncertainty into the classification of imported goods.

The Court should also summarily reverse the

finding of the Federal Circuit that Ford waived alternative claims which were made before, but not decided

by, the United States Court of International Trade, by

not raising them in its Appellee Brief in the Circuit

court. This holding is inconsistent with the position

adopted by every other Circuit Court of Appeals.

Now more than ever, American importers, retailers and consumers have an abiding interest in clarity

of the rules of tariff classification which are employed

by United States Customs and Border Protection

(“CBP”) and reviewing courts to determine the proper

assessment of duties on imported goods. The tariff

classification of an imported product determines the

rate and amount of duty which will be chargeable

upon importation, and in turn, will determine the

prices which importers, wholesalers and retailers

7

must charge for imported goods so that they may recover their costs and earn a profit.

This Court has long recognized that importers

have the right to design goods so that, in their “condition as imported,” they will attract a particular rate of

duty, United States v. Citroen, 223 U.S. 407, 415

(1912), and has recognized that, in applying eo nomine

tariff provisions, courts may disregard features which

constitute a “disguise or artifice.” In such cases, there

is no cause for a court to examine the “principal use”

of the goods.

Applying “principal use” standards to eo nomine

classifications is contrary to settled law, and diminishes importers’ reliance interests on judicial and administrative classification decisions.

Headings and subheadings in the Harmonized

Tariff Schedule are of two kinds: eo nomine provisions, which classify goods by name; and “use” provisions, which classify goods according to actual or principal use.

Eo nomine provisions are predominant in the

HTSUS, and are to be judicially construed according

to their common and commercial meanings, which are

presumed to be the same. Carl Zeiss, Inc. v. United

States, 195 F.3d 1375, 1379 (Fed. Cir. 1999). Absent

contrary legislative intent, eo nomine provisions cover

all forms of the named article, including later-developed forms. Brookside Veneers, Ltd. v. United States,

847 F.2d 786, 789 (Fed. Cir. 1988). The “common

meaning” of a tariff term is a question of law, presumed to be within judicial knowledge. Bausch &

8

Lomb, Inc. v. United States, 148 F.3d 1363, 1365 (Fed.

Cir. 1998). Where there are no disputed issues of fact

concerning the nature of the article, the determination of classification becomes purely a question of law.

Universal Electronics Inc. v. United States, 112 F.3d

488 (Fed. Cir. 1997). The classification of a good under an eo nomine classification is determined according to the good’s condition at the time of importation.

Worthington v. Robbins, 139 U.S. 337 (1891). This

Court has held, however, that a reviewing court may

disregard a feature of an imported product if it is a

“disguise or artifice.” Citroen, 223 U.S. at 415.

“Use” provisions of the tariff, on the other hand,

are governed by an entirely separate set of rules codified in ARI 1 to the HTSUS. Where use is the determining factor in the classification of an article,

ARI 1(a) provides that it is principal use of the “class

or kind” of merchandise to which the imported article

belongs, in the United States at or about the time of

importation, which governs classification. Thus, “use”

provisions do not classify goods according to their condition as imported; they instead require an inquiry to

identify the “class or kind” of merchandise to which

the imported good belongs, and then an inquiry as to

the “principal use” of that class or kind in the United

States. In those relatively few situations where a

product’s classification is defined by its actual use, the

proof of actual use must be certified by the importer

within three years after the date of importation. See

ARI 1(b).

9

The two types of classification provisions thus use

radically different legal tests and rely upon entirely

different sets of evidence. Conflating them, as the Federal Circuit did in this case, runs contrary to this

Court’s decisions in Worthington, supra, United

States v. Schoverling, 146 U.S. 76, 80-81 (1892), and

Citroen, supra. To the extent use may be relevant to

an eo nomine tariff classification, a reviewing court

may take use into account in determining the common

meaning of a tariff term. Where a Court suspects a

“disguise or artifice,” Citroen, 223 U.S. at 415—as the

Federal Circuit apparently did here, referring to certain features as a “sham,” A.23—its remedy is to disregard them, as indicated in Citroen, not to embark

upon an inconsistent and unnecessary “second bite at

the apple” classification exercise.

STATEMENT

This case involves the proper classification of certain imported Ford “Transit” motor vehicles which, as

imported, were equipped with rear passenger seats

and other design features indicating that they were to

be used for the transport of passengers, inviting classification under Heading 8703, HTSUS. After importation, Ford modified some of the vehicles by removing

the rear passenger seat and installing a floor mat.

The United States Court of International Trade,

following Marubeni America Corp. v. United States,

35 F.3d 530 (Fed. Cir. 1994), properly analyzed the vehicles in their condition as imported, concluding that

10

“[t]he structural design features favor a finding that

the subject merchandise is designed for the transport

of passengers.” A.20. But despite the presence of rear

seating and other passenger-friendly features, the

Federal Circuit, reviewing “auxiliary design features,”

concluded that the vehicles were not principally designed for the transport of passengers. A.24-25. Removal of the second-row seats, the CAFC concluded,

facilitated “post-importation processing of converting

the Transit Connect 6/7s into cargo vans by using

sham rear seats that would be stripped from the vehicles.” A.23. The Federal Circuit held that the Trade

Court “erred in its evaluation of these auxiliary design

features which compel the conclusion that the subject

merchandise is designed to transport cargo.” A.25.

While acknowledging that “Heading 8703 is an

eo nomine provision, not a principal use provision,”

A.25, the CAFC, relying on the “principal use” test articulated in Carborundum Co. v. United States, 536

F.2d 373 (C.C.P.A. 1976), concluded that “the subject

merchandise is not classifiable under HTSUS Heading 8703,” A.27, but rather under Subheading 8704 s

“Motor vehicles for the transport of goods”—a classification provision governed by “principal use” considerations. A.29.

By construing the eo nomine provision of Heading 8703 to encompass the “principal use” test reserved for tariff provisions “controlled by use,” the

CAFC gave CBP a “second bite at the apple” to sustain

its liquidated classification under Heading 8704. This

11

was unnecessary, and contrary to settled law. The appellate court could have properly considered use as a

relevant factor in defining the common meaning of

Heading 8703 without straying from settled law, and

could have employed the Citroen analysis to disregard

any features deemed a “disguise or artifice.” 223 U.S.

at 415.

REASONS FOR GRANTING THE PETITION

I.

Eo Nomine and Use Provisions of the HTSUS

are Distinct and Require Different Classification Tests.

This Court has long recognized that, for tariff

nomenclatures to be effective, goods must be classified

in their “condition as imported.” Worthington, 139

U.S. at 341 (a good’s classification is based on the “condition in which it is imported,” not “what afterwards

the importer did with it.”); Schoverling, 146 U.S. at 81.

Customs and importers should be able to classify

goods under an eo nomine provision based on an examination of the product’s objective properties and

characteristics at the time of entry.2 See Citroen, 223

2 That

eo nomine tariff provisions should be administered ac-

cording to objective properties and characteristics at the time of

importation is a foundational principle of tariff classification law,

both at the World Trade Organization, see WTO Appellate Body

Report, China - Measures Affecting Imports of Automobile Parts,

WT/DS340/AB/R (December 15, 2008), and among the United

States’ principal trading partners. Skattministeriet v. Estron,

Case C138-18, at ¶ 52 (European Court of Justice, June 15, 2019)

(“ … according to the case-law of the Court, the intended use of a

12

U.S. at 415. Thus, the objective properties and characteristics of Ford’s Transit vans as vehicles designed

for the transport of passengers were evident from an

examination of the vehicles in their condition as imported. That should have been the end of the inquiry;

instead, the Federal Circuit expanded its inquiry to

ask “what afterwards the importer did with it.” See

Worthington, 139 U.S. at 341.

Classification of goods pursuant to an eo nomine

provision is a two-step process:

… the court construes the relevant (competing)

classification headings, a question of law; determines what the merchandise at issue is, a question of fact; and then … adjudges … the proper

classification under which it falls, the ultimate

question in every classification case and one

that has always been treated as a question of

law.

Bausch & Lomb, 148 F.3d at 1366 (emphasis added).

Eo nomine tariff provisions are to be construed according to their common and commercial meanings,

which are presumed to be the same. Carl Zeiss, 195

F.3d at 1379. Absent contrary legislative intent, eo

nomine provisions cover all forms of the named article, including later-developed forms. Brookside Veneers, 847 F.2d at 789. The “common meaning” of a

product may constitute an objective criterion for classification if

it is inherent to the product, and that inherent character must

be capable of being assessed on the basis of the product’s objective characteristics and properties … ” (Emphasis added)).

13

tariff term is a question of law, presumed to be within

judicial knowledge. Bausch & Lomb, 148 F.3d at 1365.

The Federal Circuit’s decision conflicts with, and

undermines, the principles of this Court’s holdings in

Worthington, Schoverling, and Citroen.

Congress has, from time to time, enacted a relatively few tariff provisions which classify goods according to use—either according to the good’s actual

use, or the principal use of the class or kind of goods

to which the good belongs. In these cases, the classification of an imported good cannot be determined by

examining it in its “condition as imported,” and a completely different inquiry must be undertaken. In the

case of the rare “actual use” provisions, ARI 1(b)3 requires that the importer certify the actual use of the

imported article to CBP within three years of importation. See e.g., Clarendon Mktg. Inc. v. United States,

21 C.I.T. 59 (1997). Most “use” provisions of the tariff

classify goods according to the “principal use” in the

3 ARI 1 provides:

(a) a tariff classification controlled by use (other than

actual use) is to be determined in accordance with

the use in the United States at, or immediately

prior to, the date of importation, of goods of that

class or kind to which the imported goods belong,

and the controlling use is the principal use;

(b) a tariff classification controlled by the actual use

to which the imported goods are put in the United

States is satisfied only if such use is intended at

the time of importation, the goods are so used and

proof thereof is furnished within 3 years after the

date the goods are entered;

14

United States of the “class or kind” of articles to which

the imported merchandise belongs, as specified in

ARI 1(a). Under this test, the classification of goods by

“use” is not a question of law, but of fact. The analysis

is not on “what the good is,” but on “how similar goods

are principally used after importation.” Such questions of fact are not static, and the principal use of a

class of goods determined in 2019 may not be the principal use for that same class in 2021. A new factual

inquiry must be undertaken.

To properly plan its goods for importation, an importer must know whether classification will be according to the objective properties and characteristics

of the goods at the time of importation (i.e., eo nomine)

or whether classification will be governed by “principal use.” The CAFC’s decision in this case makes that

distinction virtually impossible to discern.

There is no guidepost for determining whether an

eo nomine tariff provision “inherently suggests” a use,

A.11, and is ultimately to be controlled by principal

use. In this case, the determination may have been

driven by nothing more than the Federal Circuit’s determination that the rear seats installed in the vans

were a “sham,” A.23, and a desire to reach a different

rule which would lead to a different result than the

CIT reached.

Even if an eo nomine provision “inherently suggests” use, the Federal Circuit has been unclear about

whether the classification provision should be treated

15

as one “controlled by” use and governed by ARI 1(b),

or whether, after considering use, the Court may employ an eo nomine classification analysis. This uncertainty not only leaves importers unsure about how to

classify their products at the time of importation, it is

nothing less than an abandonment of longstanding

rules of tariff classification set out by this Court in

cases such as Worthington, Schoverling, and Citroen.

It undermines the reliance interest which AAEI members and other importers place on settled judicial and

administrative classification decisions and the rules of

construction employed in arriving at those decisions.4

See e.g., 19 U.S.C. § 1625(c) (limiting CBP’s ability to

revoke or modify rulings). Where a classification is

“controlled by” use, precedent is not controlling, and a

new, fact-driven “principal use” determination must

be made for each new importation.

II.

Use is Relevant for Determining Common

Meaning of an Eo Nomine Tariff Provision,

Therefore, a “Principal Use” Test is Unnecessary.

Among the factors a court may consider in defining the “common meaning” of a tariff term is the

actual or intended use of the product. Thus, in S&T

4 A product’s classification determines the importer’s duty

cost, and the prices it must charge to be profitable. Importers

seek approximately 10,000 rulings each year, the vast majority

dealing with classification. See e.g., Customs Ruling Online

Search Service (“CROSS”), accessible at https://rulings.cbp.gov/home (last visited March 16, 2020) (containing more

than 200,000 rulings).

16

Imports, Inc. v. United States, 78 Cust. Ct. 45, 56

(1977), pineapple immersed in brine, boiled, and left

in sugar syrups was held to be classifiable as “candied

fruit.” The Court noted that the imported pineapples

“are primarily used in baking for fruitcakes and for

making higher concentrated glace and crystallized

fruit. Such uses are identical to those described by the

authorities for candied fruit.” Id. (emphasis added).

In Processed Plastic Co. v. United States, 473

F.3d 1164 (Fed. Cir. 2006), the Federal Circuit upheld

the classification of beach bags and backpacks containing sand toys as travel bags, rather than toys, because their primary function was utilitarian, and any

play derived therefrom was incidental to this primary

utilitarian function. The court held that “the backpacks and beach bag are general use articles that can

be used to carry any number of different items weighing up to at least three pounds, and thus they are not

suitable for use solely or principally with sand toys,”

id. at 1173, and that they should “be classified under

the eo nomine heading 4202 that describes them.” Id.

at 1171.

In Avenues in Leather, Inc. v, United States,

423 F.3d 1326, 1332 (Fed. Cir. 2005), the Federal Circuit held that 1.5 inch thick folios were “not sufficiently large or durable enough” to hold items such a

books, thick newspapers, or other personal items commonly carried in ejusdem generis containers of heading 4202. The Court observed that the folios at issue:

… may be used to organize and protect small

and/or flat items in addition to a writing pad,

they have an internal capacity of only 1 inch

17

and lack significant carrying space. These characteristics make them unsuitable to carry

newspapers, books, and other objects that are

normally carried in containers that are common

to Heading 4202.

Id. at 1333 (emphasis added). The Court concluded

that “[s]uch a specific use, which predominates over

the more general description of containers, precludes

classification … under Heading 4202.” Id. (emphasis

added).5

Thus, courts can be informed by use in determining the common meaning of an eo nomine tariff

term, reaching a legal conclusion that will be definite,

enduring, and controlling for the future. However,

this is a far cry from making the leap to treat an eo

nomine provision as one which is “controlled by use.”

If judicial determination of the common meaning of an eo nomine term is informed by use in the first

part of the Bausch & Lomb analysis, the court can

then examine the condition of the merchandise as imported in the second step, to determine whether the

product fits within the tariff term’s common meaning.

See also e.g., F.W. Myers, Inc. v. United States, 12 C.I.T.

566, 573 (1988) (eo nomine provision for “tractors” connoted “a

motor vehicle primarily used for pushing and pulling an appliance or load.”); Sports Graphics, Inc. v. United States, 24 F.3d

1390 (Fed. Cir. 1994) (use of bags to store food and beverages

precluded classification in eo nomine provision for “luggage”);

Northwest Airlines, Inc. v. United States, 17 F. Supp. 2d 1008

(Ct. Int’l Tr. 1998) (airplane braking and steering control units

not classifiable as navigational devices because they were only

used while airplane was on the ground).

5

18

There is no need to unmoor classification from the traditional rules for interpreting and applying eo nomine

tariff terms in migrating to “principal use” considerations. Kahrs Int’l v. United States, 713 F.3d 640, 646

(Fed. Cir. 2013) (merchandise may “possess[] some

unique features relat[ing] to its intended use” without

those features transforming its identity and creating

a use limitation); see also e.g., Irwin Ind. Tool Co. v.

United States, 920 F.3d 1356 (Fed. Cir. 2019).

To the extent the Federal Circuit’s decision was

influenced by the perception of a artifice to avoid the

higher tariffs imposed on cargo vehicles (see A.23, suggesting use of “sham rear seats that would be stripped

from the vehicles”), this does not justify abandoning

eo nomine principles for use.6 In Citroen, the Supreme

Court noted:

[A] prescribed rate of duty can[not] be escaped

by disguise or artifice. … [W]hen the article imported is not the article described as dutiable at

a specified rate, it does not become dutiable under the description because it has been manufactured or prepared for the express purpose of

being imported at a lower rate.

223 U.S. at 415; see also, Michaelian & Kohlberg, Inc.

v. United States, 22 C.C.P.A. 551 (1935). Where a

court perceives a “disguise or artifice” in applying an

6 It is far from apparent that Ford was engaged in a ruse.

Transit vehicles are representative of a type produced in a basic

configuration, with the expectation that many will be upfitted for

a particular use. See e.g., Pleasure-Way Industries, Inc. v.

United States, 878 F.3d 1348 (Fed. Cir. 2018).

19

eo nomine tariff provision, it may disregard the disguising or artificial feature. Hampco Apparel Inc. v.

United States, 12 C.I.T. 92 (1988); Heartland ByProducts Inc., 264 F.3d 1126, 1139 (Fed. Cir. 2001),

cert. den. 537 U.S. 812 (2002).

Invoking this exception to the “condition as imported” rule safeguards against the use of artifice or

deception. Whether “disguise or artifice” exists is a

fact–specific determination to be made in each case.

But all of this can be done without abandoning the eo

nomine nature of the tariff provision, and seeking to

convert it into one “controlled by use.”

III.

The Federal Circuit’s “Waiver” Determination

Should be Summarily Reversed.

This Court should also grant the petition for

certioriari to review the Federal Circuit’s holding that

Ford “waived” alternative claims not decided by the

CIT by not raising them in its appellee brief. This

holding is in plain error and conflicts with positions

taken by every other Federal Judicial circuit. Summary reversal is in order. See e.g., Thompson v. Hebdon, 140 S. Ct. 348, 350 n.* (2019) (per curiam) (summarily reversing a decision that conflicted with precedent “from ten Circuits”).

Ford’s Complaint in this action raised several

alternate arguments. First, Ford argued that CBP

had erred by classifying the Transit vans as vehicles

for the transportation of goods, rather than as vehicles

for the transportation of passengers. Alternatively,

Ford asserted that CBP’s ruling was contrary to its

prior treatment of the Transit Connects, see 19 U.S.C.

§ 1625(c)(2); and that CBP’s ruling was contrary to an

20

“established and uniform practice” (EUP), see 19

U.S.C. § 1315(d), and could not be changed except after notice and comment and then only prospectively.

These are separate, independent ground for suit on

which Ford could prevail, regardless of the correctness

of the classification used.

The CIT did not reach the alternative claims because it ruled in Ford’s favor on classification. The

Government’s opening brief before the Federal Circuit

did not raise either issue, and Ford’s opposition brief

addressed the single issue on appeal, classification,

while noting that its treatment and EUP claims had

been raised in the CIT, and, should the classification

decision be reversed, the case should be remanded to

the CIT for consideration of these alternate claims.

The Federal Circuit should have given the CIT

an opportunity to address those arguments in the first

instance. Instead, the Federal Circuit held that Ford

had “waived” the prior treatment and EUP claims by

not developing them in its appellate brief. A.32. This

was clear error. The appellant “define[s] the battleground on … appeal,” Crocker v. Piedmont Aviation,

Inc., 49 F.3d 735, 740 (D.C. Cir. 1995), and “bears the

burden of demonstrating the alleged error and the

precise relief sought,” Hernandez v. Starbuck, 69 F.3d

1089, 1093 (10th Cir. 1995). but “[a]ppellees bear no

such burden.” Id. The appellee—in this case Ford—

must simply “defend the decision of the lower court”

against the appellant’s specified challenges. Brown v.

City of New York, 862 F.3d 182, 188 (2d Cir. 2017).

Because appellees “should not … be penalized

for that which they were not required to do in the first

instance,” an appellee does not waive a request “to

21

have the trial court address [on remand an] argument

[it had] specifically preserved” by failing to brief those

issues on appeal. Hillman v. IRS, 263 F.3d 338, 343

n.6 (4th Cir. 2001). As noted in Ford’s Petition for a

Writ of Certiorari, this is the view of every Circuit

Court of Appeal.

CONCLUSION

For these reasons, Amicus Curiae the American

Association of Exporters and Importers respectfully

submits that the instant Petition for Rehearing and

Rehearing En Banc of Appellee, Ford Motor Company,

should be granted.

Respectfully Submitted,

John M. Peterson

Counsel of Record

Richard F. O’Neill

PATRICK B. KLEIN

NEVILLE PETERSON LLP

One Exchange Plaza

55 Broadway, Ste. 2602

New York, NY 10006

(212) 635-2730

jpeterson@npwny.com

March 18, 2020