morning your honor sir despite the long history in this case and in some instances that complex discussion of the issues in the briefs filed by the parties if basic time honored principles of customs law are applied to the facts this is actually a simple case the most basic of these principles is that a nail nominee provision includes all forms of the named article including forms created after united states appeal number two hundred thirteen thirteen fifty six which held as a matter of the more that if an article is provided for a or nominee it must be so classified see also wilton industries case decided last november and cited on page twenty six of our reply brings to exactly the same effect applying the these principles to this case we have certain things that are clear there is a nail nominee provision for training us that means for an article to be classified as a training issue it must be one of a shoe and two used in training as to the first of these the court has already held in decades one that the tempest sports channels an issue or issues despite the trial court's holding to the contrary as to the second there are almost four hundred pages of deposition testimony elicited by the government and other evidence indecorous to that the tempest sports channels are used in training and are particularly well suited but read but you know the elephant in the room with and this is set forth than in the federal reporter a decision that thirteen fifteen record that's a story interpretation that additional no two defines the term initiative that was rejected by the court and it's not an issue in this case the second issue was that the c i t heard in its application of the rule even useful generis and were coming out and our argument again was rejected and the third was the c i t's quote analysis that the toughest imported shoes or like tennis shoes best of all shoes gym shoes and training shoes of court could not have gone directly to that he used them generis analysis if it had considered the training shoe issue it knocked out a rod but it is true though that the court said that it was defining the essential characteristics of the entire class the class correct  i certainly would say that if i had to but i think the court was stuck with what we were served up as findings from the trial court and because it said in that this in the opinion of talking about the  classification case in customs to come back into the court and fully really negate both the factual and legal issues of the case and that is as basic a principle in customs war as any and it is very first it's at the heart of customs more and customs classification because the court recognizes the evidence can present it one way in one case and differently in another case the lawyer can be argued differently in both cases and you're entitled to do that and that's why we came back this time if there's any doubt about what the trial court did on the facts in the first case were in hiding to inherent that record and have that evidence consider because at the end of the day in the first case the c i t there does the so called evidence are saying that the in decker's was the court erred in its conclusion its legal conclusion that you have to have a sones a rubber or plastic and offers of textiles that's the only other requirement besides the fact that it has training shoes there is absolutely nothing your honor nothing in the legislative history or the statue that supports the idea legally that it must have posed imposed not secure not making now you're the argument you've made i guess in the first case with respect to no t situation where the facts are different and you're saying well they've got a whole new set of facts about a different product for instance this is a situation where the where this court made a legal conclusion now you're saying it didn't have the factual basis to make that legal conclusion but it was truly a legal conclusion that was made right based on an assumption and not real evidence and you're saying that either the c i t or this panel could simply ignore that legal conclusion absolutely that's very clear from the shop decision and it's very clear from a number of cases if in fact the legal conclusion is wrong then the court does not have to follow it well i'm not sure i rea shot to be quite that broad i mean shot this talking about the conclusion and shot is that they should have been allowed to offer additional evidence if the leads would undermine the prior decision well that principle might apply to this case says what you couple that with the h w robinson case and that makes it a fundamentally clear that the court as it did it in this case a reversed it the debt its own decision and down rock and reversed the customs court because they said it was wrong we went off on the wrong facts and it rejected starring the syces for that reason and you can do something like that our case that we rejected that started to slices with respect to what the government's argument here and that's what the court been the first case for the government and then the government didn't in its brief advise the court that the robinson case are reversed down and it reversed the customs court and itself and overturn its own decision because the decision simply was wrong and it refused to apply starry decisis and all we're saying is here the lower court in this case did not no you should look at dynamics and give a tax second look because there's a whole lot of new evidence including evidence testimony are from the government owns expert witness that  praying shoes can have open uppers and be used as training shoes that's on in the appendix on page five eleven that's the government's own witness mustering the testimony of our witnesses to the fact that they use these things as training shoes that they are extremely good for training in certain applications and these are witnesses who are not only the people who marketed the shoes invented the shoes but more athletes themselves who use them in extremely athletic events are you saying that we as a panel can basically all come to a different conclusion as a matter of law decker wasn't on the court obviously the i believe the court of customs and pencils always was sort of on vault if you will so it could do that we're not in that position well i think however my role of that i think you are opinion based on that factual finding that's the result you reached if we had known facts as you are entitled to present under stone and ira we could reach a different result that doesn't mean we were wrong the 's not a question being bound by it it's we've got different evidence thats before us i don't know this court at the site acts like your job but you get what you get from the trial court and you look at those factors they give and see and if you get a new play with a totally different set of facts or and elaboration of the facts that wasn't in the first place frankly training shoes that morphed in the  that you can and have the right even with the same merchandise and certainly we've got different merchandise here as well but i think and the same merchandise that you can come in and argue both new still consider the robinson case the shot case these are the cases that really at the end of the day and the avenues in leather cases particularly  cases where the court in three separate instances including took the case where the same first occasion was involved and reached a different result in the second case so follow in every news to the decision in ehrman use one are based on the new argument the new provision that was argued for by by the parties and at the end of the day un disputed testimony that these things are training shoes we've got the result that the thing that is a training issue is not clear it's a final goal in a provision that provides for quote training sh wrong on that point yeah i could but i have one foot in the grave and the other on a banana peel if i were you going on you chose not to do it and i can understand why but am i correct in thinking that you would take the position that as a matter of law you could've if you had chosen to do so but there's more to why no i didn't because there is no factual issue that undermines us in the undermined us on the no two that was a flat out statutory shows these things are training shoes and we've got the absurd result that it doesn't go into the provision for training shoes that totally violates every well yes i do have one last question that it's fixed how do you get around outer circle don't you read that as having created for clarified what may have been a question   the government argues stands for the proposition that a use them generis clause can inform or even limit the scope of the common meaning of a term that case involves soft sided  inductors one there was no analysis of the common meaning of the term training shoes and in the end an outer circle of the government which was reverse point i think in outer circle is the fact that at arc that it was found by the us in an earlier case you're saying that while legally that determination was more a point and the one we made exactly one but i'm going back to your argument that we're never no way to argue against that but it is not an immutable principle and at the end of the day if a decision is clearly erroneous the court has the right to run overturn that decision and not perpetuate ever and i'm honest that that's certainly true in all cases we have the right to do that but what you seem to be arguing is that innate huston's classification case and what's the point of allowing you to keep coming back if and then the court can't we think what it is well i have another is actually a good example of an importer keep coming back here and keep the doctors came back the court listen to the evidence then throw it out in prevent of presenting evidence and actually consider the evidence because they had to decide whether this case is appropriate for summary judgment but does look at the evidence and see whether there are disputed material facts so this is one of those cases where you down unless come back and we litigate but we're not going to challenge this court's holding that forty two zero two has an overriding characteristic of organizing storing transporting and maybe one other characteristic said is the thing that we have to start with yes so this report says you can keep coming back yes but but this report doesn't say oh you can come back but you just can't do anything about it if there's already a decision out there so my question is how do you how do you say from that stone and downer what was the point of allowing this three litigations if there was going to be normal preclusion principles or start decisive principles in any  what you want to argue i'm asking a question about stoning down yes so what was the point in stoning down and what was the rationale that you believe the supreme court relied upon for allowing really to gauge and classification cases and where do you see a limiting principle in that opinion well the just the stone is down a decision yes and less important come and the written rationale is still that they can present evidence and so that one corner might present more evidence or different evidence than another import or similar or the same arch and i even said the same parties so it doesn't say different importer yes ok so the same person yeah i mean i'm trying don't get me wrong it's kind of shocking to me too that the supreme court sa having said that and then we have shot that says that site's robinson and says you know we go back in and we rethink these things so i mean so how could how could it even if we've got avenues in leather which you think sort of seem to go the other way how could we have done that in terms of how could you live if the supreme court and our court were already on record saying absolutely go back in front all right the fact that we may have rationale in customs litigation is the importers are free to keep coming back and relive a getting their merchandise and they do it's just decker's might have different evidence now than it did before so it's so that's one side of the question which is can they keep coming back with that what i think what we care more about is can we keep coming can a panel there for is a logical extension of what you just said that importance can keep coming back new legal arguments new factual arguments does that undermine the principle that we follow or we follow in other areas which is we're bound by a panel unless and until the among court overrules that first pat is that the government's position that that principle continues to apply the classification cases are not yes absolutely i think and how do you reconcile the two well that supreme court and everybody else as they can keep coming in legal questions factual questions but essentially the panel just pro forma has picked kind of reject that and the only so the only you know bottom line is they can keep doing that because they might get the attention of the armoire court some day to overturn that is that your view of the limits of what we're talking about i believe yes i believe what happened then and shot yes then shut the court said the importer can come back present evidence and show that the legal interpretation was clearly wrong yes there is a gap after shot as to what happens if you know the c i c hold that that sentence legally wrong and then it comes here but the thing is is that and in this case there are there is no there has been a finding on no showing that what that it's you know that's not the question that that justice to the merits while accepting your friends or view of what supreme court has told us we have to do we should still say adopt the rational of deference one because we you think that's right but that's not what we're talking about here we're talking about the legal principles that apply to what the what if it feels otherwise that decorous want to solve the question here are we allowed to revisit it because there's some special provision for classification cases that you can keep coming back and revisit the issue and i believe that's the mechanism for if this court believes that they're hers one is incorrect and go to the the supreme court and this case undermined that principle by what it said i think it's ip i think it's it didn't deal with that question i think it dealt with the issue that was sort of before it and i didn't really think through practically how this would work the mechanics of how  that we are not bound by deckers one if we believe there was clear air right we'll see i think again i think that might conflict with the rule of one panel can overrule another panel so again i would think yes you could if you thought that's that's that's my understanding of how it works that one panel but even the avenue cases that you rely upon they draw that distinction they point out that a less of course there's clear i mean they say this is a whole different animal than every other kind of stories or so it might be though that clear air would allow us to ignore stars and that's the that's what they even said in the cases that you rely upon so heavily yes they do  had those four characteristics of organizing transporting storing in the forefront but they were still bound by that in the absence of a showing of clear we'll see again that in trying to show claire so it's you have in the decision statements of fact that are just brought in general but they really didn't come into fruition in the decision so we don't actually play out there because they didn't really want to show claire ever in terms of legal to whatever what if what if we would have the right to set aside actors one based on a showing a clear yes what would you be response the argument about whether there's sufficient clear error to allow us to do that i was assuming that we're past all the parties were allowed to present all any and all evidence there was no conclusion the evidence and decker didn't make the argument that the sandals work you know nominate training shoes at the end of the day you know is that the analysis didn't mak system but they weren't preclude him from raising and they didn't raise it so this court properly consider the the ip properly considered all of the evidence and came up with the cynical characteristics that unite all of the articles in that argument not raise our game rather address or not the court has an obligation to get classification correct so given that doctors raise a clearly erroneous argument i would assume that the court considered all it had a wealth of information what you have here terms of our panel looking at a previous panel decision and discuss thinking out loud at college as i don't know whether the court of customs feels in those days like the old court of customs and patents in other words if the customs court whose decision was being reviewed by the supreme court and so on and downer always said quote on or like our old court of customs and pan court of the national trade set by single judges so forth i just don't know i'm sorry i don't i don't know either burp by virtue of say you know you have to use them generic and it can't limit or now and somehow that clearly erroneous it's not because you're think the only argument they really made was a legal one and they didn't make  factual showing necessary to fit within robinson or shot yes so the primary argument about that was the first thing that was said by doctors was that black letter law they feel that there's a clear error because somehow and looking at all of them you are going to put them in you know cancer you're going to say this provision covers only cover items with these characteristics it's going to by nature limits like forty two o two and avenues and levers that don't know it's not legal in our and again i just want to point out that there's been some discussion on the last question of shots again this see onto the court of international trade allow both parties to what i mean not just for a needless exercise if we're allowing them to fill up the record with new evidence and there has to be an assumption that somewhere down the road someone is going to reach out so that's application of that common meaning as to whether or embraces the articles before the court that was not in that first one is in this case and you could have both decision stand because there are they would not be inconsistent because one is based on totally different evidence and a totally different legal analysis and its own encounter stands for anything it says this polite and this animal can do that to be useless we got our meaningless exercise and we've been at this for a long time it took a war time to put that record together and it's before the court and it's totally different from what you heard inductors one so i  going down or means anything it means then you can absolutely decide this case on the basis of the evidence before us and at the very least at the very least remand the case the judge  meaning and he should also make a legal determination and then this court would be in a position to review of the factual evidence for a clearer determination and the question of war the know