yes yes much to do that the main issues with respect to our defense on on that issue of two things the the the festival article issue we believe that the evidence is overwhelming that this meets the standard effect of first of all articles in the sense that it's it's something that is prepared for the holidays and is used exclusively during the holiday so the question is we're we're not operating on a clean slate right we've got several opinions that you know it is the right question is whether or not this these articles come within the fancy dress exception well that that is that is  second argument that we have and we believe it's a very very strong argument and that is that this costume doesn't wearing apparel standards and that is critical in this case and unfortunately the lower court judge did not allow the testimony and of the expert report of our expert witness what our expert witness laid out in very good detail are there are several cases with respect to the issue that fancy dress has to meet ford narry wearing apparel stand and we brought somebody in from the wearer wearing apparel industry that knew the wearing apparel industry very very well and went over a litany of reasons why this isn't wearing a but wasn't that it testimony would it that that that's the price that's the other issue abuse of discretion yes absolutely because if you look at if you look at her resume and all the details with respect to her background she was perfect for this they tr i didn't read him as saying that she was necessarily all but that the opinion she was expressing wasn't directed to the relevant inquiry well let's watch talk about that you are because that then i believe is at the heart of this matter what that first because you're on a really hard standard by this is this is the main argument you're alive on that he should all but this expert report and if he had you would prevail no  i mean we can talk about this expert report all you want but i'd rather hear other arguments and assume we're going to affirm him on excluding the sex for well let's talk about what much talk about why isn't i mean i don't know that we have to that there's any dispute that that's a test of article i think we all agree it's a false article it's is it excluded as fancy dress specifically under our rubies to decision i believe the i ask you to start with the classification language what does the classification standards there in sixty one and sixty two i say most might describe fancy dress hang on one sec on costumes is costumes that would meet wearing apparel standards and the concept of fancy dresses you know like these war zones that you would wear a costume party that or very fancy well made and would decision it's as in it's describing politically come the first of article so i guess the opposite of that so we have a flimsy nature and construction lacking in drew ability then it goes into the third point i think this is where you're at right and generally not recognized as normal particles of where an apparent right that's exactly like my question to you is did the court make a finding of fact with respect to not recognized as normal articles or were in a pearl yes it did in the sense that it said that it was a requirement and they found it to be fancy dress so the fact that judge barnett said he that the court i think ma net hell that it's it's a requirement and therefore if you rule that it was fancy dress judge wanted hell that the santa clause costume is fancy dress because it's durable non flimsy in nature and  apparel because it's one size fits all and it's generally not used in wearing apparel the material used to make the costume is the same material used to make spoil stuffed animals it's not the and a leper costume with the mask and everything and it's terrible it's made of a plush very and all that kind of like it's a costume for a costume part right that could be fancy dress it standard of a leopard cops to me is because that would mean i don't understand what you mean by ordinary wearing a pair of them because it seems to me like you're trying to mash kind of everyday clothes when we're out of the everyday clothes had a gory all together ordinary wearing apparel standards if that wasn't a factor to be considered and what we're talking about is the way a wearing apparel is quite the way it fits the the piple whining you would make and were wearing other products toys and novelties but that they don't produce apparel it talks about the quality requirements pollard says in standard form or where an apparel and things of that nature what was this as to whether we're looking that at every day or pearl quality in the state of that already yes it certainly does and your honor that going back to the issue of you know holding this case on the issue of whether or not we prove our case our big argument here is that this was an inappropriate case for summary judgment there were starting with all the way back in i believe fifty going fifty years back but let's start with ruby's i'm going to be the first rubies which has been identified in a recent piece too and ruby's to this court said they're wearing apparel is ordinarily war you don't mean every day clothes because we're already out of the everyday clothes well we will read most of our yes well garments something that covers a garment isn't necessarily wearing about wearing apparel has become a term of ar from this court's jurisprudence and wearing apparel has been defined as what i just gave and also this cordon rubies to credited customs and border protection ruling which describes certain styling features s finished edges inset panels darker hoops all those things that this costume hands are credited by this court in the first room is decision as being features of wearing those all good quality construction and a the fest of article provision of chapter ninety five is a fancy dress of textiles of chapter sixty one and sixty two and this quarter ruby's found that the term fancy dress just means custom and right that's plain as day from the definitions s two i guess we largely looked and it seems to me this problem is largely of your own baking and the customs rolling you had and previous to that had this kind of test of their ability ordinary wearing and the like which isn't today and then we adopted right partially asturias of i mean the testis even though it's from our president it's seems like it was from your essential and as well portions of the test were definitely doctor from the customs ruling that  was issued prior to the first ruby's decision however this court also did look at definitions that were developed over the years i believe from this court as well as the united states supreme court as to what is wearing apparel so it was a combination of the normal article would normally be worn as opposed to whether this is a normal article or in a paragraph a couple of points on that show all right so getting back to this this declaration that i cited two  to the issue of the type of factory that it's made in that only makes toys and doesn't make t shirts and pants or anything else aren't those genuine issues of material fact as to genuine issue as to it no more  from this court then a classification case when the how the product is used when it's used the nature of the product the construction the product are all not an issue that all collapses into an issue of law and it should be probably decided on summary judgment that we judge barnes barnett that here we do looked at the factors that this court considered in the first through his decision and found that this article met what the court found was excluded from chapter ninety five we have to it's important to look at the fact that it was the reverse in r those costumes were cheap inexpensive one time use slip over the could i think going back to where we were a few minutes ago which is talking about how our court would necessarily define what it would call it normal articles of apparel articles rather than cognitive association as wearing apparel wouldn't that why the guy standing behind you respectfully no your honor there is a cognitive association with wearing apparel by the jacket and pants and that's w judge barnett that where though it's important to look at footnote two of the first ruby's decision where the description of those costumes it's very limited that's all we have to really go on we have a description of those costumes there and those did not meet the cognitive you talking about the halloween costume and to the extent that such elements have any characteristics similar to wearing apparel to costumes of how are we to consumers of halloween costumes such features are clearly secondary first a test of article and then within the exception if it's not a test of article at all then we don't even look at the festival article classification qur'an therefore don't look at the exception in one e correct your honor and so it seems like at least when i read these priests i initially got confused as to some kind of dichotomy between festive article and fancy dress and putting one in one box or the other but then i don't think that that's the way it operates right is fancy dress of textiles of chapter sixty one and sixty two and we also believe that it is prima facia described by chapter sixty one which is all the different various apparel provisions and this court has said numerous times that we read an article that is prima facia described by two competing provisions and one of them is chapter ninety five the article always goes in chapter ninety five except this court held michael simon designed and part b smith except if it's described in one of the x will you never know and in this case this article is described by not one he as fancy dress of text out of chapter sixty one sixty two if that's true and i'm glad you go through the steps to that's what we need to do but this court has interpreted that exclusion yes we confused about the reason for it not being the normal type of wearing apparel because of the reason it's a santa suit and that argument seems a legally i agree or and i think it's important to look at the sports clothing line of football jersey as well as motor cross jersey motor cross pants more course jacket were all found by this court to meet that exclusion even though you wouldn't wear those every day but only one that went into football practice or maybe a costume party and if you were going to be a football player however twenty and the court of international trade as well following those cases in each eye in fadden found that what suits which again would not be worn on an everyday basis were considered to be wearing apparel because they're or articles or peril gloomily worn we cannot because we know that all costumes but then all of the difference in the world doesn't it would but we know that your honor my time's about the run can i finish all right we know that we can't define that language as articles that are worn on an everyday basis because of the fact that fancy dress is defined as costumes so we know what the cost also from this court precedent in the sports  did why did judge would decide this issue of so rigid as opposed to just walking through the steps of terror of classification i believe the judge barnett did walk through the steps of their of classification and both parties moved for summ judgment plaintiff moved first so even though them conceding an issue of law is not binding on this court i believe it's persuasive and a little disingenuous to come in front of this court and now say that there are issues of material fact and i believe that judge barnett properly dissected rubies one and ruby's two and looked at all the issues and then and then made a determination based on what the parties asked i mean what difference would it i'm a little to these cases confuse me as to also as to when summary judgment  is a costume that you would wear to a costume party but if it is fits the courts definition of fancy dress it would have to meet ordinary wearing apparel stand now what i can ordinary wearing apparel standards doesn't mean closure would ordinarily wear no it's did this stand though the way it's manufactured it would be manufactured in the standards that would be way the the the material if costume is made and that's why it's critical to look at more patients testimony and to look at our exports testimony that talks about several factors that make it not meeting merit wearing apparel to use a quote from the norm whole is made improperly it's very uncomfortable the rise in the pants a made that no wearing apparel would be made that way it's uncomfortable but the whining is not wearing apparel standard the material not wearing specialist and the question is whether or not you agree with our assessment judge for next said in his decision that when you decide this issue summary judgment is not appropriate the cole and yes judge barnett wouldn't rule both cases but we would have had our david court to call all witnesses bring testimony and have a trial before a judge a bench trial is the same thing as a jury trial we never had an opportunity to go into court and bring our witnesses in and have them testify before the judge and we believe that based on judge's burnett ruling what this merchandiser question is it's a question of fact and if he held that it's a question of fact then we cannot be granted a summary judgment motion nor can the government