United States Court of Appeals 

for the Federal Circuit ______________________ 

DECKERS CORPORATION,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee.

______________________ 

2013-1356

______________________ 

Appeal from the United States Court of International 

Trade in No. 02-CV-0732, Senior Judge Thomas J. Aquilino, Jr.

______________________ 

Decided: May 13, 2014

______________________ 

PATRICK D. GILL, Rode & Qualey, of New York, New 

York, argued for plaintiff-appellant. With him on the 

brief was WILLIAM J. MALONEY. Of counsel was RICHARD

BRIAN BURKE. 

MARCELLA POWELL, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of New York, New York, argued for defendantappellee. With her on the brief were AMY M. RUBIN, 

Acting Assistant Director, International Trade Field 

Office; STUART F. DELERY, Assistant Attorney General,

and JEANNE E. DAVIDSON, Director, of Washington, DC,
2 DECKERS CORPORATION v. US

and MICHAEL W. HEYDRICH, Trial Attorney, Office of the 

Assistant Chief Counsel, International Trade Litigation, 

United States Customs and Border Protection, of New 

York, New York. 

______________________ 

Before PROST, SCHALL, and O’MALLEY, Circuit Judges.

O’MALLEY, Circuit Judge. 

This appeal is about the proper tariff classification 

categories of Teva® Sandals imported by Deckers Corporation (“Deckers”). Deckers appeals the final judgment 

and decision of the United States Court of International 

Trade, which determined that the Teva® Sports Sandals 

at issue are properly classified under subheading 

6404.19.35 of the Harmonized Tariff Schedule of the 

United States (“HTSUS”). Because both the Court of 

International Trade and this panel are bound by the 

holding of the panel in Deckers Corp. v. United States, 532 

F.3d 1312 (Fed. Cir. 2008) (“Deckers I”), and that holding 

is conclusive of the question before us, we affirm. 

BACKGROUND

Deckers imports a variety of Teva® Sports Sandals 

from Hong Kong for sale throughout the United States.1 

Deckers Corp. v. United States, 414 F. Supp. 2d 1252, 

1252 (Ct. Int’l Trade 2005). The Sports Sandals all have 

1 The Sports Sandals at issue in the Deckers I appeal included only the Pretty Rugged, Terradactyl, and 

Aquadactyl lines. Deckers Corp., 414 F. Supp. 2d at 1252. 

The merchandise at issue in this appeal are the Pretty 

Rugged, Terradactyl, and Aquadactyl lines, as well as the 

Alp Pro, Vector, Terra Fi, Pretty Rugged Nylon, Circuit 

Nylon Women’s, Way Point Terra Fi, Terra Fi Buckle, 

Road Wraptor, Trail Wraptor and Ultimate Thong Guide 

lines. None have fully enclosed uppers.

 
DECKERS CORPORATION v. US 3

rubber or plastic soles and cloth or textile straps in the 

upper portion of the shoe. Deckers I, 532 F.3d at 1313. 

Importantly, the toe and heel sections of all of the Sports 

Sandals at issue are open, and the upper section of the 

Sport Sandals do not fully enclose the foot. Id. The 

Sports Sandals are shoes intended to be used for athletic 

pursuits, such as running, jogging, hiking, canyoneering, 

and a variety of water-based activities. 

The United States Customs and Border Protection 

Service (“Customs”) liquidated the sandals under subheading 6404.19.35, HTSUS (“subheading 6404.19.35”). 

Deckers, 414 F. Supp. 2d at 1252. Subheading 6404.19.35 

includes: 

6404 Footwear with outer soles of rubber, plastics, 

leather or composition leather and uppers of textile material: 

Footwear with outer soles of rubber or plastics: 

6404.19 Other: Footwear with open toes or open 

heels; footwear of the slip-on type, that is 

held to the foot without the use of laces or 

buckles or other fasteners:

6404.19.35 Other. 

Products classified under subheading 6404.19.35 are 

subject to a duty of 37.5% ad valorem. Subheading 

6404.19.35 is known as a “basket” provision that only 

becomes an appropriate subheading for classification if 

merchandise cannot be classified under a more specific 

subheading in heading 6404. E.M. Chems. v. United 

States, 923 F. Supp. 202, 206 (Ct. Int’l Trade 1996).

Deckers filed a protest against the subheading 

6404.19.35 classification, requesting that the Sport Sandals be classified as either 6404.11.80, HTSUS, or 

6404.11.90, HTSUS (“subheading 6404.11”). Deckers, 414 
4 DECKERS CORPORATION v. US

F. Supp. 2d at 1252. Both subheadings 6404.11.80 and 

6404.11.90 include:

6404 Footwear with outer soles of rubber, plastics, 

leather or composition leather and uppers of textile material: 

Footwear with outer soles of rubber or plastics: 

6404.11 Sports footwear; tennis shoes, basketball 

shoes, gym shoes, training shoes and the 

like;

6404.11.80 Valued over $6.50 but not over $12 per 

pair

6404.11.90 Valued over $12 per pair

Products classified under subheading 6404.11.80 are 

subject to a duty of $0.90 per pair plus 20% ad valorem. 

Products classified under subheading 6404.11.90 are 

subject to a duty of 20% ad valorem. To be classified

under subheadings 6404.11.80 or 6404.11.90, the merchandise must fit the description in subheading 

6404.11they must be “sports footwear; tennis shoes, 

basketball shoes, gym shoes, training shoes and the like.”

In 2001, Deckers brought a test case before the Court 

of International Trade regarding the classification dispute 

over the Sport Sandals. Deckers Corp. v. United States, 

Court No. 02-00674. On November 14, 2002, Deckers also 

filed a summons with the Court of International Trade 

that would eventually mature into the pending appeal. 

Deckers then requested that the summons be suspended 

during the pendency of the test case, and the Court of 

International Trade granted Deckers’s motion to suspend. 

On a motion for summary judgment in the test case, 

Deckers argued that Additional Note 2 to HTSUS Chapter 64 defined the phrase “tennis shoes, basketball shoes, 

gym shoes, training shoes and the like” of subheading 
DECKERS CORPORATION v. US 5

6404.11.2 Deckers, 414 F. Supp. 2d at 1257-58. Specifically, Deckers claimed that Additional Note 2 makes clear

that the named exemplars of subheading 6404.11 are

interchangeable with the phrase “athletic footwear.” Id. 

The Court of International Trade rejected this interpretation as “tenuous.” Id. at 1258. To clarify the scope of 

subheading 6404.11, the Court of International Trade 

attempted to construe the “and the like” language of 

subheading 6404.11 through an ejusdem generis analysis,3 but determined that there were outstanding factual 

issues to which Deckers should be entitled to respond at 

trial. Id. at 1258-61.

After trial, the Court of International Trade held that 

the Sports Sandals should be classified under subheading 

2 Additional Note 2 to Chapter 64 HTSUS states: 

“For the purposes of this chapter, the term ‘tennis shoes, 

basketball shoes, gym shoes, training shoes and the like’ 

covers athletic footwear other than sports footwear (as 

defined in note 1 above), whether or not principally used 

for such athletic games or purposes.” “Sports footwear,” 

as defined in Subheading Note 1 to Chapter 64 HTSUS, 

only applies to: “(a) [f]ootwear which is designed for a 

sporting activity and has, or has provision for the attachment of spikes, sprigs, cleats, stops, clips, bars or the like; 

(b) [s]kating boots, ski-boots and cross-country ski footwear, snowboard boots, wrestling boots, boxing boots and 

cycling shoes.” The “sports footwear” language of subheading 6404.11 and Subheading Note 1 is not relevant to 

the present appeal.

3 In an ejusdem generis analysis, “where an enumeration of specific things is followed by a general word 

or phrase, the general word or phrase is held to refer to 

things of the same kind as those specified.” Sports 

Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. 

Cir. 1994).

 
6 DECKERS CORPORATION v. US

6404.19.35. Deckers Corp. v. United States, 31 Ct. Int’l 

Trade 1367, 1372 (2007). Evidence at trial suggested that 

the Sport Sandals could be used as athletic footwear for 

some sports, but the Court of International Trade concluded that the Sport Sandals could not be classified 

under subheading 6404.11 because they were “sandals,” 

and not “shoes” as required by that subheading. Id. at 

1373 (“Again, there is and can be little doubt that that

term [shoe] does not cover the Teva®s at issue.”). The 

Court of International Trade noted that, while it is possible that certain forms of “human athletic activity have 

engendered more-propitious types of footwear,” the subheadings at issue are not written to cover the Sports 

Sandals and it is for Congress, not the courts, to alter the 

HTSUS provisions to cover such footwear. Id.

This court affirmed the Court of International Trade’s 

classification in Deckers I. The Deckers I panel first held 

that Additional Note 2 to HTSUS Heading 6404 does not 

subsume the listed exemplars in subheading 6404.11; 

Note 2 merely explains that use alone does not establish 

proper classification in that subheading. 532 F.3d at 

1315.4 We also clarified the Court of International 

Trade’s interpretation of the term “shoes.” We found that 

“there can be no doubt that sandals are ‘shoes,’” but that 

the Court of International Trade only noted that the Sport 

Sandals were not shoes as that term was intended in 

subheading 6404.11. Id. at 1317.

We then performed an ejusdem generis analysis to determine the scope of the “and the like” term in subheading 

6404.11. Id. at 1316-17. Deckers claimed that the essential characteristic of the listed exemplars was that they 

were all athletic footwear, in essence repackaging its 

4 Deckers does not contest this interpretation in the 

present appeal. 

 
DECKERS CORPORATION v. US 7

Additional Note 2 argument. The court rejected this 

interpretation, holding that:

The evidence adduced at trial established that the 

fundamental feature that the exemplars share is 

the design, specifically the enclosed upper, which 

contains features that stabilize the foot, and protect against abrasion and impact. Because the 

sandals at issue have open toes and open heels, 

and lack the features of the named exemplars of 

6404.11.80, HTSUS, the imported goods are not 

classifiable under that subheading, notwithstanding their claimed status as athletic footwear.

Id. at 1317 (emphases added). 

Deckers filed a complaint on March 22, 2010, seeking 

to reopen the summons that was suspended pending 

resolution of Deckers I. There, Deckers argued that the 

Sport Sandals fit within the eo nomine category of “training shoes” in subheading 6404.11.5 Deckers submitted 

new evidence purportedly demonstrating undisputed facts 

that establish that the Sports Sandals are “training 

shoes.” The Court of International Trade found that the 

holding in Deckers I precluded it from classifying the 

Sports Sandals under subheading 6404.11 because the 

Sports Sandals did not have enclosed uppers. Deckers 

Corp. v. United States, No. 02-00732, 2013 WL 1924357, 

at *4 (Ct. Int’l Trade Apr. 12, 2013) (“[T]he court cannot 

read the cited decision of the Court of Appeals for the 

Federal Circuit . . . as providing a basis for relief for 

5 An eo nomine classification is one that “describes 

a commodity by a specific name, usually one common in 

commerce,” Nidec Corp. v. United States, 68 F.3d 1333, 

1336 (Fed. Cir. 1995), and “describes an article by a 

specific name, not by use,” Aromont U.S.A., Inc. v. United 

States, 671 F.3d 1310, 1312 (Fed. Cir. 2012). 

 
8 DECKERS CORPORATION v. US

which the plaintiff so skillfully prays herein.”). The Court 

of International Trade also stated that, in the original 

motion to suspend in light of the earlier test case, Deckers 

argued that suspension of the pending appeal would be 

appropriate because “[that] test case involves the same 

plaintiff, the same defendant, the same class or kind of 

merchandise, i.e., sports sandals, and the same claims.” 

Id. Because the merchandise at issue was admittedly of 

the same character as in the test case, the Court of International Trade held that it was bound by the holding of 

Deckers I under principles of stare decisis. Id. at *4-5.

Deckers timely appealed the determination of the 

Court of International Trade, and we have jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(5).

DISCUSSION

I 

We review the Court of International Trade’s grant of 

summary judgment regarding a tariff classification without deference. CamelBak Prods., LLC v. United States, 

649 F.3d 1361, 1364 (Fed. Cir. 2011). We do accord some 

deference to a Customs classification determination 

pursuant to Skidmore v. Swift & Co., 323 U.S. 134 (1944), 

and United States v. Mead Corp., 533 U.S. 218, 235 

(2001), but only to the extent of Customs’ persuasive 

power. Warner-Lambert Co. v. United States, 407 F.3d 

1207, 1209 (Fed. Cir. 2005). The Federal Circuit has “an 

independent responsibility to decide the legal issue of the 

proper meaning and scope of HTSUS terms.” Id.

Classification of imports under HTSUS involves two 

steps. Orlando Food Corp. v. United States, 140 F.3d 

1437, 1439 (Fed. Cir. 1998); see also Cummins Inc. v. 

United States, 454 F.3d 1361, 1363 (Fed. Cir. 2006). 

First, the trial court must construe the meaning of terms 

in a given tariff provision. Orlando Food, 140 F.3d at 

1439. This step is a question of law, which we review de 
DECKERS CORPORATION v. US 9

novo. MetChem, Inc. v. United States, 513 F.3d 1342, 

1345 (Fed. Cir. 2008). Second, the trial court must determine if the merchandise at issue falls within the tariff 

provision that the court just construed. Orlando Food, 

140 F.3d 1439. This step is a question of fact, which we 

review for clear error. Home Depot U.S.A., Inc. v. United 

States, 491 F.3d 1334, 1335 (Fed. Cir. 2007). 

II

Deckers’s arguments can be grouped into two categories: (1) the Court of International Trade erred in not 

analyzing new evidence Deckers presented to demonstrate clear error in the Deckers I opinion so that Deckers 

could argue that stare decisis would not apply; and (2) the 

Court of International Trade erred in holding that stare 

decisis limited its classification decision because this 

appeal presents an issue of law that was not before the 

panel in Deckers I. 

Deckers first claims that there can be no res judicata

from Deckers I under United States v. Stone & Downer 

Co., 274 U.S. 225 (1927). In Stone & Downer, the Supreme Court held that res judicata principles did not 

apply to Customs classification cases, in what was then 

the Court of Customs Appeals, unless a later case involves 

the exact same importation event as the prior decision. 

Id. at 236-37. 

Deckers then argues that the Deckers I holding—that 

“training shoes” must have enclosed uppers—is clearly 

erroneous, and Deckers I would therefore not be binding 

on the Court of International Trade or this panel pursuant to Schott Optical Glass, Inc. v. United States, 750 F.2d 

62 (Fed. Cir. 1984). According to Deckers, Schott Optical 

permits any court—including any subsequent panel of 

this court—to review a prior interpretation of a classification provision by this court and to disregard that interpretation upon a showing of clear error. Deckers states that 

the Deckers I decision was clearly erroneous because any
10 DECKERS CORPORATION v. US

shoe that is “designed, marketed, sold and used as a 

training shoe” should be classified eo nomine as a training 

shoe in subheading 6404.11, whether it has an enclosed 

upper or not. Appellant Br. 33. Deckers argues that the 

Sport Sandals are merely an evolutionary step in improving traditional training shoes by providing greater 

breathability, and that tariff terms are written to embrace 

future improvements to merchandise that maintain the 

same function as their predecessors. 

Deckers also claims that stare decisis is not relevant 

to this appeal. In addition to analyzing Additional Note 2, 

Deckers I interpreted the “and the like” language of subheading 6404.11 through an ejusdem generis analysis. 

For the present appeal, Deckers states that it has introduced new evidence demonstrating that the Sports Sandals meet the eo nomine category of “training shoes” 

under subheading 6404.11. Deckers thus argues that the 

eo nomine analysis of “training shoes” is a completely 

independent legal issue from the ejusdem generis analysis 

of “and the like” in Deckers I, even though both analyses 

involve interpretation of the same HTSUS subheading. 

The government argues that the holding of Stone & 

Downer—that res judicata does not bar classification 

challenges to later entries of the same type of merchandise by the same party—is irrelevant. It argues that basic 

principles of stare decisis and concepts of what constitutes

binding precedent prevent either the Court of International Trade or this panel from reconsidering the legal 

principle set forth in Deckers I. The government argues 

that, because a prior ejusdem generis analysis of a subheading can inform a later court’s construction of a named 

exemplar under an eo nomine analysis, no new legal issue 

is raised here. The government concludes that, because 

both Deckers I and this appeal involve the construction of 

subheading 6404.11, and because Deckers I involved 

analysis of the term “training shoes,” this appeal does not 

present a new legal issue and stare decisis may apply. 
DECKERS CORPORATION v. US 11

The government claims, moreover, that, even if our prior 

decision in Schott Optical allows a trial court to find clear 

error in a precedential decision by a higher court in 

classification cases, Deckers has not demonstrated clear 

error in Deckers I. 

We agree with the government that Deckers I both 

decided the issue that governs this appeal and is binding 

on this panel. 

III

 Our analysis focuses on two questions, both of which 

are related to whether Deckers I is binding on this panel: 

(1) Does the eo nomine analysis of the “training shoes” 

exemplar in subheading 6404.11 pose a new legal 

question not present in Deckers I? 

(2) If the Deckers I panel did analyze the same legal 

issue that is presently on appeal, do Stone & Downer and our previous opinions require either the 

Court of International Trade or this panel to hear 

evidence of claimed clear error in a prior precedential opinion in classification cases?

Stare decisis “protects the legitimate expectations of 

those who live under the law” and prevents “an arbitrary 

discretion in the courts.” Hubbard v. United States, 514 

U.S. 695, 716 (1995) (Scalia, J., concurring in part) (quoting Alexander Hamilton, THE FEDERALIST No. 78 (C. 

Rossiter ed. 1961)). The Supreme Court has held that 

stare decisis “promotes the evenhanded, predictable, and 

consistent development of legal principles, fosters reliance 

on judicial decisions, and contributes to the actual and 

perceived integrity of the judicial process.” Payne v. 

Tennessee, 501 U.S. 808, 827 (1991). We have recognized 

that stare decisis exists to “enhance[] predictability and 

efficiency in dispute resolution and legal proceedings” 

through creation of settled expectations in prior decisions 

of the court. Lighting Ballast Control LLC v. Philips 
12 DECKERS CORPORATION v. US

Elecs. N. Am. Corp., 744 F.3d 1272, 1281 (Fed. Cir. 2014) 

(en banc). The courts thus abide by the theory of stare 

decisis to promote these twin pillars of jurisprudence: 

predictability and stability. Id. at 1282. 

Stare decisis “deals only with law” and each prior 

precedential holding of the court becomes a “statement of 

the law, or precedent, binding in future cases before the 

same court or another court owing obedience to its decision.” Mendenhall v. Cedar Rapids, Inc., 5 F.3d 1557, 

1570 (Fed. Cir. 1993) (internal citations removed). Stare 

decisis, therefore, is limited to only the legal determinations made in a prior precedential opinion and does not 

apply to either issues of fact, such as classification of 

specific goods within a construed tariff provision, or issues 

of law that were not part of a holding in a prior decision. 

Avenues in Leather v. United States, 423 F.3d 1326, 1331 

(Fed. Cir. 2005) (“Avenues III”). 

SCOPE OF STARE DECISIS UNDER DECKERS I

Deckers claims that the legal issues in the present 

appeal are not the same legal issues determined by the 

Deckers I panel, thereby precluding any reliance on stare 

decisis principles. In particular, Deckers argues that an 

ejusdem generis analysis of a tariff classification subheading is a different legal issue than an eo nomine analysis of 

a listed exemplar within that same subheading. We 

disagree.

1 

To prevail on this theory, Deckers would have to 

prove that an ejusdem generis analysis, which identifies

the essential characteristics shared by all products under

a given subheading, including the listed exemplars under 

that subheading, would not inform the common meaning 

of a listed exemplar in an eo nomine analysis. Deckers

cannot do so. In construing a tariff term, the court first 

must determine if Congress “clearly defined the term in 
DECKERS CORPORATION v. US 13

either the HTSUS or its legislative history.” Russell 

Stadelman & Co. v United States, 242 F.3d 1044, 1048 

(Fed. Cir. 2001). If, as here, the term is not clearly defined by Congress, the term’s “correct meaning is its 

common . . . meaning in absence of evidence to the contrary.” Id. 

Ejusdem generis analysis “requires that the imported 

merchandise possess the essential characteristics or 

purposes that unite the articles enumerated eo nomine in 

order to be classified under the general terms.” Sports 

Graphics, Inc. v. United States, 24 F.3d 1390, 1392 (Fed. 

Cir. 1994). While ejusdem generis may not be necessary 

in the interpretation of a tariff provision if legislative 

intent is clear, Sandoz Chem. Works, Inc. v. United 

States, 50 C.C.P.A. 31, 35 (1963), ejusdem generis is a tool 

we can use to appropriately construe a statutory provision, Meco Elec. Prods. v. United States, 14 Ct. Int’l Trade 

181, 190 (1990). In determining the shared characteristics of a list of named exemplars, an ejusdem generis

analysis attempts to divine congressional intent, which is 

the purpose behind construing HTSUS provisions. See, 

e.g., D.N.&E. Walter & Co. v. United States, 43 C.C.P.A. 

100, 102 (1956) (performing an ejusdem generis analysis 

on a list of rug style exemplars to determine a congressional intent to limit that provision to only woven articles). 

An eo nomine analysis, on the other hand, attempts to 

determine the common meaning of a specific listed exemplar in a HTSUS subheading. Nidec Corp. v. United 

States, 68 F.3d 1333, 1336 (Fed. Cir. 1995); United States 

v. M&D Miller, Inc., 41 C.C.P.A. 226, 229 (1954) (“An eo 

nomine provision in the tariff law . . . is what the commonly accepted meaning of the term happens to be, and 

where such common meaning is easily and clearly determined through judicial decisions and reports to Congress 

on the subject by recognized authorities, such findings 

presumptively include the commercial as well as the 
14 DECKERS CORPORATION v. US

common meaning.”). Eo nomine designations include all 

forms of an article, including future improvements to that 

article. Nootka Packing Co. v. United States, 22 C.C.P.A. 

464, 470 (1935). Eo nomine terms are thus forwardlooking, such that they include technological advancements, as long as the improved article performs the same 

essential function as the named exemplar. See, e.g., 

Household Mfg. Co. v. United States, 62 Cust. Ct. 198 

(1969); Kaysons Imp. Corp. v. United States, 56 Cust. Ct. 

146 (1966). An eo nomine designation, however, can be 

limited by “a shown contrary legislative intent, judicial 

decision, or administrative practice to the contrary.” 

Nootka Packing Co., 22 C.C.P.A. at 470. The Customs 

Court, which was the predecessor to the Court of International Trade,6 has held that, if a named exemplar is 

limited by other language in the tariff provision or legislative history, the eo nomine analysis will only include 

articles that “possess the essential characteristics of the 

specifically named or enumerated article.” M.H. Garvey 

Co. v. United States, 65 Cust. Ct. 434, 444-45 (1970); id. at 

444 (stating “[t]he indispensable prerequisite, however, is 

that the controverted merchandise possess the essential 

characteristics of the named article”); see also Airflow 

Tech., Inc. v. United States, 524 F.3d 1287, 1292 (Fed. Cir. 

2008) (using ejusdem generis to determine the essential 

characteristics of a phrase that itself limited an eo nomine

term).

We thus use both eo nomine and ejusdem generis

analyses to determine the common meaning of a classification term and to establish congressional intent with 

respect to an HTSUS subheading. In Airflow Technology, 

we used the interpretation of an “or the like” phrase 

6 The Customs Court became the U.S. Court of International Trade in 1980. Customs Courts Act of 1980, 

Pub. L. No. 96-417, 94 Stat. 1727. 

 
DECKERS CORPORATION v. US 15

through both ejusdem generis and dictionary definitions, 

similar to an eo nomine analysis, to arrive at the common 

meaning of an HTSUS subheading term. Airflow Techs., 

524 F.3d at 1292. Our opinion in Outer Circle Products is 

also instructive. In Outer Circle Products, we sought to 

determine if “soft-sided, flexible wraps” should be classified under HTSUS subheading 4202.92.90 or 3924.10.50. 

Outer Circle Prods. v. United States, 590 F.3d 1323, 1325

(Fed Cir. 2010). We previously had construed heading 

4202 in SGI, Inc. v. United States, 122 F.3d 1468 (Fed. 

Cir. 1997), holding that heading 4202 does “not include 

containers that organize, store, protect, or carry food or 

beverages” pursuant to an ejusdem generis analysis. The 

Court of International Trade concluded that SGI was not 

relevant to the dispute before it, because SGI involved an 

ejusdem generis analysis of heading 4202, while the thencurrent case involved an eo nomine analysis under that 

same heading. Id. at 1326. We disagreed, finding SGI

not only relevant to the eo nomine analysis, but “controlling in this case,” because the SGI panel expressly found

that none of the listed exemplars “involve[d] containment 

of any food or beverage.” Id. 

Thus, while an ejusdem generis analysis may not be 

necessary if the common meaning of an eo nomine term is 

apparent, where an ejusdem generis analysis has occurred 

and we have concluded that Congressional intent can be 

gleaned therefrom, we may not later ignore that conclusion. As we said in Airflow Technology and Outer Circle 

Products, an ejusdem generis analysis informs the scope 

and common meaning of each of the listed exemplars in 

an HTSUS subheading, which is the same goal of an eo 

nomine inquiry. For these reasons, Deckers is incorrect 

that the Deckers I court did not examine the legal issues 

in the present appeal—both Deckers I and the present 

appeal involve the construction of subheading 6404.11. 
16 DECKERS CORPORATION v. US

2 

Our conclusion that no new legal issue is raised in 

this appeal is consistent with our resolutions in what the 

parties refer to as the Avenues in Leather cases. In Avenues in Leather, Inc. v. United States, 178 F.3d 1241 (Fed. 

Cir. 1999) (“Avenues I”), we affirmed a Court of International Trade determination that “leather ‘folios’ . . . used 

to store, organize, and carry papers, books, pens, pencils, 

and the like” should be classified under HTSUS subheading 4202.11.00 rather than subheading 4820.10.20. Id. at

1242, 1244-45. We found, under an ejusdem generis 

analysis, that the unifying purpose of goods under heading 4202 was “organizing, storing, protecting, and carrying various items.” Id. at 1244-45. In Avenues in Leather, 

Inc. v. United States, 317 F.3d 1399 (Fed. Cir. 2003) 

(“Avenues II”), the issue on appeal involved the classification of Calcu-Folios—binders with zippered sides containing a calculator and three ring binder—and, specifically,

whether they should be classified under subheading 

4202.12.20 or 4820.30.00. Id. at 1401-02. The Court of 

International Trade found the Calcu-Folios to be “substantially similar” to the folios of Avenues I, and held that 

it was bound by Avenues I through stare decisis. Id. at 

1402. 

On appeal, we held that the Court of International 

Trade had confounded concepts of claim and issue preclusion—which do not apply in classification cases under 

Stone & Downer—and stare decisis. Id. By concluding 

that no new issue of law was raised in Avenues II solely 

because the products were “substantially similar” to the

products at issue in Avenues I, the Court of International 

Trade actually applied collateral estoppel—or, more 

accurately, issue preclusion—principles, rather than 

honoring stare decisis. Id. at 1404. The Avenues II panel 

explained that the legal issue on appeal in Avenues II

involved the construction of subheading 4820.30.00. Id. 

at 1403-04. In Avenues I, the panel construed heading 
DECKERS CORPORATION v. US 17

4202. Therefore, Avenues I did not involve any determinations of law regarding subheading 4820.30.00 that 

could be binding on the panel in Avenues II. Id. In addition, we noted that the merchandise at issue in Avenues II 

was different from the merchandise in Avenues I. Id. On 

remand, the Court of International Trade held that the 

Calcu-Folios should be classified under subheading 

4820.10.2020 because the folios did not share the essential characteristics of Heading 4202, the heading at issue 

in Avenues I. Avenues III, 423 F.3d at 1329-30. On 

appeal, we affirmed and held that Avenues I is only binding with respect to its legal determination of the “common 

characteristics” identified for heading 4202. Id. at 1331. 

Avenues I did not bind the Court of International Trade 

regarding how the specific Calcu-Folios should be classified, which is an issue of fact. Id. In the Avenues in 

Leather series of cases, we explained that: (1) a prior legal 

interpretation regarding construction of a specific HTSUS 

provision can be binding on the Court of International 

Trade or later panels; but that (2) interpretation of a 

different subheading creates a different legal issue, precluding application of stare decisis. 

Here, Deckers seeks an interpretation of the “training 

shoes” exemplar under subheading 6404.11. This is the 

same subheading interpreted in Deckers I. Though we

used an ejusdem generis analysis in Deckers I, we held 

that “[t]he evidence adduced at trial established that the 

fundamental feature that the exemplars share is the 

design, specifically the enclosed upper . . . .” Deckers I, 

532 F.3d at 1317 (emphasis added). In our ejusdem

generis analysis, we looked to each of the listed exemplars 

in determining the shared characteristic in subheading 

6404.11. We stated, moreover, that, for the reasons 

expressed in the ejusdem generis analysis, the sandals at 

issue were “not the kind of shoes to which subheading 

6404.11.80 refers.” Id. at 1318. Therefore, because 

Deckers I and the present appeal involve the same legal 
18 DECKERS CORPORATION v. US

issue—construction of subheading 6404.11—any legal 

conclusion regarding the scope of that heading in Deckers 

I presumptively applies.

CLEAR ERROR EXCEPTION TO STARE DECISIS

Deckers I provides a binding construction of subheading 6404.11 such that any merchandise classified into 

that subheading must include “enclosed uppers.” Deckers 

I, 532 F.3d at 1316-17. Since it is uncontroverted that the 

Sports Sandals do not have enclosed uppers, the Court of 

International Trade correctly held that the Sports Sandals cannot be classified into subheading 6404.11 and, 

thus, should be classified into subheading 6404.19.35. 

Deckers claims, however, that, even if the conclusions in 

Deckers I presumptively control, both the Court of International Trade and this panel may revisit Deckers I and 

reject it if we find it to have been clearly erroneous—

which Deckers says it was. Deckers points to our opinion 

in Schott Optical, asserting that we there recognized a 

“clear error” exception to stare decisis. In particular, 

Deckers argues that the Court of International Trade 

erred by not considering new evidence presented by 

Deckers showing that the Deckers I panel committed clear

error in its construction of subheading 6404.11, as it was 

required to do under Schott Optical. We disagree. Deckers reads too much into Schott Optical. 

1 

In this Circuit, a later panel is bound by the determinations of a prior panel, unless relieved of that obligation 

by an en banc order of the court or a decision of the Supreme Court. We thus must determine what Schott 

Optical held and whether it governs our resolution of this 

appeal. We begin by considering the legal landscape 

leading up to the decision in Schott Optical. 

Prior to 1890, the federal district courts located at local ports of entry handled all litigation regarding duties 
DECKERS CORPORATION v. US 19

on imports. Giles S. Rich, A Brief History of the United 

States Court of Customs and Patent Appeals 6 (1980). 

The district courts, however, were not consistent in their 

construction of tariff provisions. In response, Congress 

created the nine-member Board of General Appraisers in 

1890, which would eventually become the United States 

Customs Court and, later, the Court of International 

Trade. McKinley Tariff Administrative Act of 1890, § 12, 

26 Stat. 131, 136. Decisions of the Board of General 

Appraisers could be appealed to the Circuit Courts of 

Appeals—once they were created in 1891—and, thereafter, to the United States Supreme Court. Rich, supra, at 

6-7. In 1909, however, Congress removed tariff interpretations from the purview of the federal courts, including 

the Supreme Court, by creating the United States Court 

of Customs Appeals.7 Act of August 5, 1909, § 29, 36 Stat. 

11, 105. The decisions of the Court of Customs Appeals, 

which always sat en banc, were not reviewable by any 

Article III courts, neither the Circuit Courts of Appeals, 

nor the Supreme Court. Id. The Court of Customs Appeals was thus the court of last resort for classification 

determinations. 

Between 1909 and 1914, the Court of Customs Appeals recognized the importance of principles of stare 

decisis, stating that, “where a question has been well 

considered and deliberately determined in one court, 

another court of coordinate jurisdiction at least is not at 

liberty to disturb or unsettle the law of the first case, 

unless impelled thereto by the most cogent reasons.” 

United States v. Schwartz & Co., 3 U.S. Cust. App. 24, 51 

7 The Court of Customs Appeals was not considered 

to be an Article III court, Ex parte Bakelite Corp., 279 

U.S. 438, 460 (1929), until Congress declared the Court to 

be an Article III court in 1958. Act of August 25, 1958, § 

1, 72 Stat. 848, 848. 

 
20 DECKERS CORPORATION v. US

(Ct. Cust. App. 1912); see also Perry, Ryer & Co. v. United 

States, 2 U.S. Cust. App. 374, 380 (Ct. Cust. App. 1911). 

Thus, it was Court of Customs Appeals’ practice to follow 

its own prior precedents, where applicable. Because the 

Court of Customs Appeals was a court of last resort, 

however, it understood that it could not be inflexibly 

bound by its prior holdings and had to allow for some 

ability to overturn prior erroneous holdings. United 

States v. Bauer, 3 U.S. Cust. App. 343, 344 (Ct. Cust. App. 

1912) (“Under the doctrine of stare decisis we should 

proceed with caution in disturbing conclusions which were 

deliberately reached upon full argument. This rule does 

not preclude our examination of new questions, nor 

should we go to the length of reaffirming an erroneous 

position when firmly convinced that we are in error.”); see 

also United States v. Lun Chong & Co., 3 U.S. Cust. App. 

468, 469 (Ct. Cust. App. 1912) (holding that it is inappropriate to apply “stare decisis” or allow the record of a 

former case to be used in a pending case, as permitted 

under then-existing court rules, where the government 

failed to demonstrate factual similarity between the prior 

decision and pending appeal). 

In 1914, Congress granted the Supreme Court limited 

appellate review of the decisions of the Court of Customs 

Appeals where construction of the Constitution or any 

treaties were drawn into question, or where the Attorney 

General decided that the case was of such importance as 

to require Supreme Court review. Act of August 22, 38 

Stat. 703, 703 (1914). Even with limited Supreme Court 

review available, the Court of Customs Appeals continued 

to apply stare decisis to its prior holdings, except where 

convinced it had committed clear error in a prior decision. 

See, e.g., United States v. Mills & Gibbs, 8 U.S. Cust. App. 

422, 428 (Ct. Cust. App. 1918) (“The doctrine of stare 

decisis is invoked by the importers, and our decision 

might well have been rested thereon, but partly because 

of the unquestioned sincere belief of the [petitioner] that 
DECKERS CORPORATION v. US 21

we have committed error and also because if so we desire 

to correct it, we have carefully considered the whole 

subject matter.”).

In 1926, Congress replaced the Board of General Appraisers with the U.S. Customs Court, which retained the 

jurisdiction and powers of the Board. Act of May 28, 

1926, ch. 411, 44 Stat. 669. As with appeals from the 

Board, appeals from the Customs Court went to the Court 

of Customs Appeals. 

2 

In 1927, the Supreme Court in Stone & Downer attempted to clarify the review process for classification 

determinations. The Supreme Court upheld the Court of 

Customs Appeals’ practice that the “general principle of 

res judicata should have only limited application to [Court 

of Customs Appeals] judgments.”8 Stone & Downer, 274 

U.S. at 236. The Court justified its holding on two inde8 The Supreme Court, in Stone & Downer, used the 

phrase “res judicata” in discussing preclusion in the

Customs classification context. Based on the examples 

the Court provided, however, it appears that, in modern 

parlance, the Court was referring to issue preclusion. Id.

at 236-37. We have referred to Stone & Downer as variously limiting either res judicata, Schott Optical, 750 F.2d 

at 64 (“Under Stone & Downer, the doctrine of res judicata . . . would not bar Schott from relitigating either the 

meaning of ‘optical glass’ or the classification of its filters . 

. . .”), or collateral estoppel, Avenues III, 423 F.3d at 1330

(“It is well settled that collateral estoppel does not prevent an importer from successive litigation over the 

classification of merchandise, even when the subsequent 

importations involve the ‘same issue of fact and the same 

question of law.’” (quoting Stone & Downer, 274 U.S. at 

234)). 

 
22 DECKERS CORPORATION v. US

pendent grounds. First, it noted that the Court of Customs Appeals had not been subject to any appellate review for its first five years, and was only subject to limited 

appellate review after that point. Id. at 233-35. And, it 

pointed out that the Board of General Appraisers had 

adopted the practice of allowing the record and testimony 

of prior classification determinations to be entered in 

later, related decisions under Rule 22 of its Rules of 

Procedure and Practice. Id. at 234-35. The Court held

that, “objection to the[se] practice[s] has never been made 

before,” which represents “strong evidence not only of the 

wisdom of the practice but of general acquiescence in its 

validity.” Id. at 237. Second, the Court grounded its 

decision on policy considerations. If an earlier importer 

receives a favorable classification construction, but a later 

importer receives a less-favorable construction for essentially the same merchandise, the government should be 

able to challenge that earlier construction and the early 

importer should not receive a competitive advantage due 

solely to the timing of the importation. Id. at 236. These, 

the Court stated, “were doubtless the reasons which 

actuated the Court of Customs Appeals when the question 

was first presented to it to hold that the general principle 

of res judicata should have only limited application to its 

judgments.” Id.

The Stone & Downer opinion did not discuss stare decisis, however, or even address the binding role of prior 

legal determinations on later Court of Customs Appeals 

decisions. It also did not upset the general approach of 

the Court of Customs Appeals to stare decisis in classification cases—while an importer may relitigate factual 

issues unique to a new importation, it is still bound by 

prior legal constructions of the Court of Customs Appeals, 

unless the Court of Customs Appeals found its own prior 

construction to be clearly erroneous. 
DECKERS CORPORATION v. US 23

3 

On March 2, 1929, Congress renamed the Court of 

Customs Appeals the United States Court of Customs and 

Patent Appeals (“CCPA”) and transferred jurisdiction 

over appeals from the Patent Office from the Court of 

Appeals for the District of Columbia to the new CCPA. 

Act of March 2, 1929, §§ 1, 2, 45 Stat. 1475, 1475-76. 

Importantly, the five-judge CCPA, like its predecessor,

always sat en banc as a five-judge panel. Celestaire, Inc. 

v. United States, 120 F.3d 1232, 1235 (Fed. Cir. 1997) 

(“[T]he Court of Customs and Patent Appeals always sat 

in [sic] banc and therefore later decisions overcome earlier 

inconsistent ones.”). 

The CCPA largely continued the Court of Customs 

Appeals’ approach to stare decisis. The CCPA held that 

the construction of a tariff provision by the CCPA creates 

binding precedent under stare decisis. United States v. 

F.M. Jabara & Bros., 19 C.C.P.A. 76, 78 (1931); United 

States v. Decorative Novelty Co., 17 C.C.P.A. 211, 212 

(1929). The CCPA also continued the Court of Customs 

Appeals’ practice of reviewing a prior CCPA tariff interpretation for clear error, as the CCPA was also the court 

of last resort aside from permissive Supreme Court review 

through certiorari. United States v. Consol. Kan. City 

Smelting & Ref. Co., 18 C.C.P.A. 346, 348 (1931). Importantly, the CCPA held that the clear error exception to

stare decisis only allowed a court to reject a prior decision 

of a coordinate court regarding an issue of law if the court 

believed there was clear error in that prior decision. 

Raphael v. United States, 23 C.C.P.A. 253, 258 (1936).9 

9 For example, the CCPA found that stare decisis 

did not prohibit reconsideration of legal issues where that 

issue was not fully presented in a prior case and is controlling. See, e.g., Shell E. Petroleum Products v. United 

 
24 DECKERS CORPORATION v. US

While early CCPA decisions outlined the general concept of the clear error exception to stare decisis, starting

with Adolphe Hurst & Co, Inc. v. United States, 33 

C.C.P.A. 96 (1946), the CCPA began to clarify its approach to stare decisis in classification determinations. In 

Adolphe Hurst, the CCPA held that the trial court 

“properly relied upon our decision” in a prior case and was 

bound to the opinions of the appellate court by stare 

decisis, but that the CCPA could review its own prior 

decisions and overrule those decisions upon a showing of 

error. Id. at 101. The CCPA subsequently explained that 

judicial decisions “must be understood in . . . context” and 

should “not . . . be expanded to embrace . . . a factual 

situation other than, different from, and contrary to, the 

facts of the case to which the language applies and is 

used.” United States v. R.J. Saunders & Co., 42 C.C.P.A. 

128, 136 (1955). 

The CCPA’s opinion in United States v. Mercantil Distribuidora, S.A., 45 C.C.P.A. 20 (1957) (Rich, J.) (“Mercantil II”), contains one of the clearest discussions of the 

CCPA’s approach to stare decisis in classification cases. 

The CCPA initially affirmed, in Mercantil I, the Customs 

Court’s classification of prepared beef. Id. at 20-21. In a 

later action, the government attempted to reargue the 

same issues presented in Mercantil I, but also supplemented the record with two exhibits that had not previously been considered. Id. The Customs Court held that 

States, 28 C.C.P.A. 155, 157 (1940) (finding that stare 

decisis did not apply because the record in the second 

appeal presented new evidence such that the issues were 

“explained with a clarity that presents an entirely different view of the issue”); Frank P. Dow Co. v. United States, 

21 C.C.P.A. 282, 289-90 (1933) (finding clear error where 

directly applicable legislative history was not presented in 

the first appeal).

 
DECKERS CORPORATION v. US 25

Mercantil I “is stare decisis of this litigation.” Id. at 23. 

The CCPA affirmed that decision. Id. at 27. In doing so, 

the CCPA stated that “[t]he public policy of putting an 

end to litigation and of not reopening questions which 

have been decided is a sound one, subject only to the 

qualification that clear error should not be perpetuated.” 

Id. at 23-24 (emphasis in original). The CCPA also described the appropriate standard it would apply in revisiting its past classifications—“sound policy dictates that 

prior decisions shall stand until the court is convinced

they are wrong.” Id. at 24 (emphasis in original). 

After Mercantil II, the CCPA’s approach to stare decisis in classification cases became fairly established and 

consistent. The CCPA continued to state that “it is not 

the province of a lower court to set aside the ruling of an 

appellate court,” so the Customs Court would appropriately dismiss cases that challenged established tariff constructions on stare decisis grounds. R.J. Saunders & Co. 

v. United States, 45 C.C.P.A. 87, 89 (1958); cf. B. Axelrod 

& Co. v. United States, 70 Cust. Ct. 117, 123-24 (1973) 

(invoking the clear error doctrine and declining to follow a 

prior, unappealed decision of the Customs Court). The 

CCPA, sitting (as it always did) as an en banc court when 

reviewing decisions of the Customs Court, could review its 

prior classification constructions, but would only disregard stare decisis after a convincing showing of clear 

error. See, e.g., United Merchs., Inc. v. United States, 468 

F.2d 208, 210 (C.C.P.A. 1972) (“A readjudication of issues 

previously determined demands a clear and convincing 

showing of error, a requirement not satisfied by reargument of the former issues on the same record.”); Manca, 

Inc. v. United States, 47 C.C.P.A. 103, 105 (1960) (“On 

principles of stare decisis [our prior holding] is controlling, 

as held below, unless the importer can show that the 

decision was clearly erroneous or that the imported merchandise here involved is not the same in kind.”); J.

Eisenberg, Inc. v. United States, 46 C.C.P.A. 11, 14 (1958); 
26 DECKERS CORPORATION v. US

United States v. Charles H Demarest, Inc., 45 C.C.P.A. 

109, 111 (1958). 

The CCPA cases Deckers relies upon in arguing that 

both this panel and the Court of International Trade 

should entertain a clear error review of Deckers I, such as 

United States v. Dodge & Olcott, Inc., 47 C.C.P.A. 100 

(1960), or H.W. Robinson Air Freight Corp. v. United 

States, 48 C.C.P.A. 148 (1961), are themselves consistent 

with prior CCPA practice. In Dodge & Olcott, the CCPA 

noted that it is “unfair both to the courts and to the 

parties” to relitigate issues previously determined “except 

upon a clear and convincing showing of error.” Dodge & 

Olcott, 47 C.C.P.A. at 103. This standard is not satisfied 

by “reargument of the former issues on the same or a 

merely cumulative record.” Id. In H.W. Robinson, the 

CCPA first held that the Customs Court correctly determined that a prior CCPA opinion was controlling. H.W. 

Robinson, 48 C.C.P.A. at 150. The CCPA then concluded, 

however, that its prior opinion was “bereft of its rationale, 

and contra to strong indicia of Congressional intent as 

found in the statutory language and the legislative history.” Id. at 151. Because there was clear evidence that the 

prior construction of the operative provision was inconsistent with Congressional intent, the en banc CCPA

invoked the clear error doctrine and declined to apply 

stare decisis to its own prior en banc decision. Id. at 151-

52. H.W. Robinson demonstrated just how substantial a

hurdle the party challenging a prior CCPA holding 

faced—the party had to show that the prior CCPA interpretation was clearly inconsistent with evidence of plain 

language or Congressional intent.10

10 Even in some of the last decisions of the CCPA, 

prior to formation of the Federal Circuit, the CCPA maintained a limited scope of clear error review. See United 

States v. Elbe Prods. Corp., 655 F.2d 1107, 1109-10 

 
DECKERS CORPORATION v. US 27

4 

On April 2, 1982, Congress created the Federal Circuit by merging the CCPA and the United States Court of 

Claims. Federal Courts Improvement Act of 1982, 96 

Stat. 25. In our first published opinion, sitting en banc, 

we adopted the case law of the CCPA as our binding 

precedent. South Corp. v United States, 690 F.2d 1368, 

1369 (Fed. Cir. 1982) (en banc). “[T]he Court of Customs 

and Patent Appeals always sat in [sic] banc” and, therefore, the most recent decision of the CCPA controls as 

precedent over prior inconsistent decisions. Celestaire, 

120 F.3d at 1235. We have also adopted the rule that a 

panel of this court—which normally sits in panels of 

three, and not en banc—is bound by the precedential 

decisions of prior panels unless and until overruled by an 

intervening Supreme Court or en banc decision. Robert 

Bosch, LLC v. Pylon Mfg. Corp., 719 F.3d 1305, 1316 (Fed. 

Cir. 2013) (en banc); UMC Elecs. Co. v. United States, 816 

F.2d 647, 652 n.6 (Fed. Cir. 1987); Kimberly-Clark Corp. 

v. Fort Howard Paper Co., 772 F.2d 860, 863 (Fed. Cir. 

1985); Mother's Rest., Inc. v. Mama's Pizza, Inc., 723 F.2d 

1566, 1573 (Fed. Cir. 1983). Thus, we as a panel are 

bound by prior CCPA decisions unless and until those 

CCPA decisions are overturned en banc or through Supreme Court intervention, just as we are bound by other 

panel decisions of this court. 

We first substantively analyzed the role of stare decisis in classification cases in Schott Optical Glass, Inc. v. 

United States, 750 F.2d 62 (Fed. Cir. 1984). In Schott

(C.C.P.A. 1981); Dep’t of Energy v. Westland, 565 F.2d 

685, 689-90 (C.C.P.A. 1977) (“The position of this court on 

the role of stare decisis is clear and consistent with that of 

the other appellate courts. A readjudication of issues 

previously determined demands a clear and convincing 

showing of error.”).

 
28 DECKERS CORPORATION v. US

Optical, the importer challenged the classification of filter 

glass used in instruments such as spectrophotometers. 

Id. at 63-64. In a first appeal, the Customs Court and the 

CCPA held that the term “optical glass” did not include an 

additional requirement involving the refractive index of 

the glass.11 Schott Optical Glass, Inc. v. United States, 

468 F. Supp. 1318, 1323-25 (Cust. Ct. 1979), aff’d, 612 

F.2d 1283 (C.C.P.A. 1979). Schott Optical then challenged the prior CCPA determination before the Court of 

International Trade in the context of a subsequent importation. That court held, however, that it was bound to the 

interpretation of “optical glass” previously established by 

the CCPA. Schott Optical Glass, Inc. v. United States, 

587 F. Supp. 69, 70-71 (Ct. Int’l Trade 1984). The Court 

of International Trade also excluded all evidence which 

Schott Optical introduced relating to the meaning of 

“optical glass.” Id. On appeal, we first recognized that, as 

established in Stone & Downer, there is no res judicata

bar to classification challenges in a later importation of 

the same merchandise by the same parties. Schott Optical, 750 F.2d at 64 (“[T]he Supreme Court held that in 

customs classification cases a determination of fact or law 

with respect to one importation is not res judicata as to 

another importation of the same merchandise by the same 

parties. The opportunity to relitigate applies to questions 

of construction of the classifying statute as well as to 

questions of fact as to the merchandise.”). We recognized, 

however, that the holding of Stone & Downer did not 

address principles of stare decisis, citing to Mercantil II. 

Id. We then held that, because the binding effect of a

prior classification can be overcome by a showing of clear 

error, the Court of International Trade should have 

permitted the challenging party to introduce evidence of 

11 As noted above, subsequently, the Customs Court 

became the U.S. Court of International Trade. Customs 

Courts Act of 1980, Pub. L. No. 96-417, 94 Stat. 1727.

 
DECKERS CORPORATION v. US 29

“clear error” in that court so it could urge a contrary 

result. Specifically, we said that “[a] court will reexamine 

and overrule a prior decision that was clearly erroneous.” 

Schott Optical, 750 F.2d at 64 (citing H.W. Robinson and 

Adolphe Hurst). 

Importantly, H.W. Robinson and Adolphe Hurst, the

cases upon which Schott Optical relied, involved an en 

banc CCPA overruling a prior en banc CCPA decision. 

When considered in the historical context of our predecessor court, Schott Optical is consistent with our current 

approach to stare decisis for en banc opinions, where the 

most recent en banc decision on a specific matter overrules prior en banc decisions. Doe v. United States, 372 

F.3d 1347, 1355 (Fed. Cir. 2004). If taken out of this 

context, as Deckers suggests, Schott Optical would be 

inconsistent with our approach to stare decisis among 

panel decisions, where we are bound by prior panel decisions until they are overruled by the court en banc or the 

Supreme Court. Robert Bosch, LLC, 719 F.3d at 1316. 

Schott Optical’s reliance on John C. Rogers & Co. v. 

United States, 63 C.C.P.A. 10 (1975), Dodge & Olcott, Inc., 

Mercantil II, and Adolphe Hurst, when stating that “[i]n a 

number of cases . . . parties were permitted to relitigate 

the common meaning of tariff terms, with or without 

introduction of new evidence,” supports the conclusion 

that the holding there is narrower than Deckers claims. 

Schott Optical, 750 F.2d at 65. Again, the cited cases all 

involved an en banc CCPA analyzing new evidence in 

reviewing a prior en banc CCPA opinion. In John C. 

Rogers & Co., Dodge & Olcott, and Mercantil II, the CCPA

failed to find clear error in prior CCPA opinions, even 

though the en banc CCPA considered new evidence in the

respective subsequent appeals. Finally, Adolphe Hurst

held that it was proper for the trial court to dismiss a 

classification case on stare decisis grounds without clear 

error review if a prior appellate court opinion construed 

the term at issue. Adolphe Hurst, 33 C.C.P.A. at 101. 
30 DECKERS CORPORATION v. US

While there is some dictum in Schott Optical which 

implies that conclusions regarding the continuing validity 

of a prior appellate decision can be made by the trial 

court, or a subsequent panel of this court, we do not read 

Schott Optical that way. At most, opinions expressed by 

the Court of International Trade or a subsequent panel 

regarding an earlier Federal Circuit panel decision would 

constitute invitations to the en banc court to revisit the 

legal issue raised.12 The panel in Schott Optical had no 

authority to go further—it could not have overruled our 

decision in Mother’s Restaurant. If it intended to do so, 

moreover, we would be bound to ignore it. Newell Cos., 

Inc. v. Kenney Mfg. Co., 864 F.2d 757, 765 (Fed. Cir. 1988) 

(“This court has adopted the rule that prior decisions of a 

panel of the court are binding precedent on subsequent 

panels unless and until overturned in [sic] banc. Where 

there is a direct conflict, the precedential decision is the 

first.” (internal citations omitted)); see also Johnston v. 

IVAC Corp., 885 F.2d 1574, 1579 (Fed. Cir. 1989) (“Where 

conflicting statements such as these appear in our precedent, the panel is obligated to review the cases and reconcile or explain the statements, if possible. If not 

reconcilable and if not merely conflicting dicta, the panel 

is obligated to follow the earlier case law which is the 

binding precedent.”).

We therefore hold that, while a party may challenge a 

prior construction of a tariff provision by a panel of this 

court in a classification case and may seek to introduce 

evidence of purported clear error in the prior classification

12 See Schott Optical, 750 F.2d at 65 (“We cannot say 

whether [the new evidence], when added to the evidence 

in the prior case and subjected to cross-examination when 

testimonial, would cause either the Court of International 

Trade or this court on appeal to conclude that the prior 

decision was clearly erroneous.”).

 
DECKERS CORPORATION v. US 31

to preserve the issue for potential en banc review, both 

the Court of International Trade and any subsequent 

panel of this court are bound by the earlier panel’s classification construction. It is only as an en banc court that 

we can review and alter a tariff classification construction 

by a prior panel. This approach is consistent with our 

treatment of stare decisis in other areas of law and is 

consistent with the approach of our predecessor court, the 

CCPA.

5 

After considering our historical approach to stare decisis in Customs classification cases, including that of our 

predecessor courts, we hold that the construction of a 

Customs classification provision by a panel of this court is 

binding upon both the Court of International Trade and 

subsequent panels of this court in later protest cases 

involving the same subheading or heading. While, in line 

with Stone & Downer, an importer may seek permission 

to introduce evidence in the Court of International Trade

of clear error in a prior Customs ruling, see Stone & 

Downer, 274 U.S. at 236 (noting the Court of Customs 

Appeals’ holding that “the general principle of res judicata

should have only limited application to its judgments.” 

(emphasis added)), the trial court and this court are 

constrained by stare decisis to reach the same legal conclusions as were reached by a panel of this court. Only 

through an en banc opinion, intervening Supreme Court 

precedent, or a change in the underlying statute by Congress can we deviate from our prior construction through 

a showing of clear error. Of course, our holding does not 

prevent an importer or the government from arguing, or

the Court of International Trade or a later panel of this

court from concluding, that a different governing legal 

issue is involved in the later appeal, such that stare 

decisis is not implicated—as was true in Avenues II—or 

that the imported merchandise is materially different 
32 DECKERS CORPORATION v. US

from the merchandise in the earlier case—as we found in 

Avenues II and Avenues III. 

We therefore affirm the holding of the Court of International Trade granting the government’s motion for 

summary judgment. In Deckers I, we construed subheading 6404.11. We are bound by that panel’s interpretation 

of subheading 6404.11, as the Court of International 

Trade held below. Because all of the Sports Sandals at 

issue in the present appeal indisputably do not have 

“enclosed uppers,” the Court of International Trade 

correctly determined that the Sport Sandals could not be 

classified under subheading 6404.11.80 or 6404.11.90. If 

Deckers seeks to overturn the Deckers I court’s construction of subheading 6404.11, it will need to seek review en 

banc.

CONCLUSION

Because Deckers presents the same issue of law that 

was before this court in Deckers I, both the Court of 

International Trade and this panel are bound by the 

Deckers I construction of subheading 6404.11 under 

principles of stare decisis. Accordingly, we affirm the 

decision of the Court of International Trade granting the 

government’s motion for summary judgment. 

AFFIRMED