489 F.3d 669
MARCO OUTDOOR ADVERTISING, INC., Plaintiff-Appellant,v.REGIONAL TRANSIT AUTHORITY, Defendant-Appellee,Clear Channel Outdoor, Inc., Intervenor Defendant-Appellee.
No. 05-30875.
United States Court of Appeals, Fifth Circuit.
June 15, 2007.

Henry W. Kinney, III (argued), Tara Elizabeth Clement, Kinney & Ellinghausen, New Orleans, LA, for Plaintiff-Appellant.
N. Sundiata Haley, Randy George McKee (argued), Carter, Haley & McKee, New Orleans, LA, for Regional Transit Authority.
Richard E. Sarver, Edward Robert Wicker (argued), Barrasso, Usdin, Kupperman, Freeman & Sarver, New Orleans, LA, for Clear Channel Outdoor, Inc.
Appeal from the United States District Court for the Eastern District of Louisiana.
Before JOLLY, DAVIS, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:

1
This cause arises under 42 U.S.C. § 1983. Marco Outdoor Advertising, Inc., ("Marco") contends that the Regional Transit Authority ("RTA") deprived it of property without due process of law when, in violation of the Louisiana Public Bid Law, La. R.S. § 38:2211, et seq. ("Public Bid Law"), RTA arbitrarily awarded an advertising contract ("Contract") to an inferior bidder, Clear Channel Outdoor, Inc. ("Clear Channel"). The district court held that because the Public Bid Law does not apply to this Contract, the state had created no property right in favor of prospective bidders such as Marco,1 and consequently, Marco, having no protected property interest, had failed to state a constitutional due process claim. The district court therefore dismissed the case for lack of federal question jurisdiction.

2
The issue presented and argued by the parties, both at trial and on appeal, is whether the Public Bid Law applies to this Contract (thereby creating a property interest), a difficult and unclear claim under Louisiana law. Marco contends that it applies; RTA and Clear Channel contend that it does not. We find it unnecessary to decide this question because we hold that, even assuming the Public Bid Law applies and creates a property interest in this Contract, Louisiana state courts provide an adequate procedural remedy for the alleged deprivation.2 We therefore AFFIRM the dismissal of Marco's complaint for failure to state a federal claim.

I.

3
On August 6, 2004, RTA initiated Request for Proposals No.2004-015, under which it sought sealed bids from advertising contractors for proposals that would generate revenue for RTA by placing advertisements on RTA's vehicles, transit shelters, and transit benches. RTA received bids from six contractors, including Marco and Clear Channel. The parties dispute whose bid is financially superior, that is, which will generate more advertising revenue for RTA. On May 24, 2005, in response to Marco's inquiries, RTA informed Marco that RTA planned to award the Contract to Clear Channel two days later on May 26.

4
Marco took action, however, and on May 25, Marco filed this 42 U.S.C. § 1983 suit against RTA in federal district court. Marco sought an injunction preventing RTA from awarding the Contract to Clear Channel and a writ of mandamus ordering RTA to award the Contract to Marco. In the district court and on appeal, Marco argues that its bid is financially superior to Clear Channel's bid, and that under the Public Bid Law, RTA must award the Contract to Marco, which allegedly submitted the best bid. Marco maintains that under the Public Bid Law, it has a property right protected by the Due Process Clause of the Fourteenth Amendment of the U.S. Constitution. This constitutional question is the sole basis for federal question jurisdiction. Although no injunction was issued, the bidding process apparently came to a halt.

5
On August 23, 2005, following a two-day bench trial, the district court dismissed Marco's complaint for lack of jurisdiction. The district court concluded that the Public Bid Law did not apply to the Contract, and accordingly, that RTA was not required to award the Contract to the most favorable bidder. Therefore, even if Marco submitted the best bid, it had no right under state law to receive the Contract and thus no property right in receiving the Contract. Consequently, Marco could not claim a deprivation of a constitutionally-protected property right by the RTA. Because the federal question basis of its law suit was eliminated, the district court dismissed for lack of jurisdiction. Marco now appeals.

II.

6
As we have earlier suggested, we will assume for the purposes of this appeal that Marco has a property right in its bid. This is not enough, however. The Fourteenth Amendment also requires that the plaintiff, in order to establish a constitutional violation, prove that the deprivation of the property right occurred without due process of law. See Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).3 Thus, even if the Public Bid Law applies to the disputed Contract, and the state has thus created a protected property right in the bidding process for Marco, Marco must further show that the state has failed to provide Marco some legal process to challenge RTA's action. The due process claim before us relates only to the adequacy of procedures that the state provides to a property owner before it takes away the property.

7
Thus, for purposes of this appeal, the state may satisfy due process requirements by providing an adequate pre-deprivation remedy.4 An adequate remedy requires that, before it acts, the state must provide notice and an opportunity for a hearing to the property owner, see Systems Contractors Corp. v. Orleans Parish Sch. Bd., 148 F.3d 571, 575-76 (5th Cir. 1998) (applying Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976)), for "[w]hen protected interests are implicated, the right to some kind of prior hearing is paramount," Bd. of Regents v. Roth, 408 U.S. 564, 569-70, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The "root requirement" of due process is "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." McKesson Corp. v. Div. of Alcoholic Beverages and Tobacco, Dept. of Bus. Regulation of Fla., 496 U.S. 18, 37, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990) (quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985)). For example, a state court injunction available before the deprivation "of any significant property interest" constitutes an adequate pre-deprivation remedy. See id. at 36-37, 110 S.Ct. 2238 ("[t]he State may choose to provide a form of `predeprivation process,' for example, by authorizing taxpayers to bring suit to enjoin imposition of a tax prior to its payment"); see also Nat'l Private Truck Council, Inc. v. Okla. Tax Comm'n, 515 U.S. 582, 587, 115 S.Ct. 2351, 132 L.Ed.2d 509 (1995) (explaining McKesson); Harper v. Va. Dept. of Taxation, 509 U.S. 86, 101-02, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993) (applying McKesson to Virginia's tax laws); Rex Realty Co. v. City of Cedar Rapids, 322 F.3d 526, 529 (8th Cir.2003) (holding that notice of condemnation and availability of a state court injunction, writ of mandamus, and writ of certiorari in an eminent domain case satisfied due process); McKenzie v. City of Chicago, 118 F.3d 552, 554-58 (7th Cir.1997) (holding that a state court injunction was an adequate pre-deprivation remedy in a condemnation case, where the property owner received notice 30 days before the demolition and could file an injunction that automatically halted any demolition plans by the city).5

8
Here, the state provides unsuccessful bidders with adequate notice and hearing. Specifically, the state provides adequate notice when RTA announces a contract award, which puts losing bidders on notice that they will be deprived of any alleged property interest in the bid if they fail to take further action. There is no showing here that the notice in this case was inadequate. Furthermore, the state guarantees unsuccessful bidders the right to a hearing through the Public Bid Law, which authorizes any unsuccessful bidder to sue in Louisiana state court to enjoin the public entity from awarding the contract. See La. R.S. § 38:2220(B). According to the Louisiana Supreme Court, "Louisiana jurisprudence has long recognized that while a public body has some discretion in awarding public contracts, subject to judicial review, an unsuccessful bidder may sue to enjoin the public body from executing the contract or to set aside the award of the contract to another bidder when the public body acted arbitrarily in selecting the successful bidder." Airline Constr. Co., Inc. v. Ascension Parish Sch. Bd., 568 So.2d 1029, 1032 (La.1990) (citation omitted). As the Louisiana Supreme Court noted in Airline Construction, the Louisiana Legislature amended La. R.S. § 38:2220 in 1979 to recognize expressly the right to injunctive relief when a public entity violates the Public Bid Law. Id. at 1032-33. Under the statute:

9
The district attorney in whose district a violation of this Part [i.e., the Public Bid Law] occurs, the attorney general, or any interested party may bring suit in the [Louisiana] district court through summary proceeding to enjoin the award of a contract or to seek other appropriate injunctive relief to prevent the award of a contract which would be in violation of this Part, or through ordinary proceeding to seek appropriate remedy to nullify a contract entered into in violation of this Part.

10
La. R.S. § 38:2220(B). There are no prerequisites that an aggrieved interested party must complete before bringing an injunction in Louisiana district court.6

11
Because an unsuccessful bidder may seek an immediate injunction through a summary proceeding, and because the injunction may enjoin the execution of the contract, the injunction prevents the deprivation "of any significant property interest" and is therefore an adequate pre-deprivation remedy. See McKesson, 496 U.S. at 36-37, 110 S.Ct. 2238.7 The summary proceeding, together with RTA's announcement of the contract award, satisfies the elements of the due process prong of the Due Process Clause that are at issue in this case.

III.

12
We thus conclude: We assume for the purposes of deciding this appeal that the Public Bid Law applies to Marco's bid and that Marco has properly alleged a property interest in the right to receive the Contract; nevertheless, we conclude that Marco's procedural due process claim fails. The Public Bid Law explicitly authorizes Marco to seek state court injunctive relief to enjoin RTA from awarding the contract to Clear Channel. For the reasons given, we hold that Marco has failed to show that it has been denied due process of law provided in the Fourteenth Amendment. Accordingly, the judgment of the district court dismissing the case for failure to state a federal claim is

13
AFFIRMED.

Notes:

1
 Under Louisiana jurisprudence, the Public Bid Law creates a property right in the highest responsible bidder to receive a contract that will generate revenue for a state entityHTW Transp. Co., Inc. v. New Orleans Aviation Bd., 527 So.2d 339, 342 (La.App. 4 Cir.1988); cf. Haughton Elevator Div. v. State ex rel. Div. of Admin., 367 So.2d 1161, 1165 (La.1979) (creating a property right in the lowest responsible bidder to receive a public works contract).

2
 At the Court's request, the parties submitted supplemental briefs on this issue

3
 There is no merit to Marco's claim of substantive due process. Substantive due process "bars certain arbitrary, wrongful government actions `regardless of the fairness of the procedures used to implement them.'"Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). To state a viable substantive due process claim, "the plaintiff must demonstrate that the state official acted with culpability beyond mere negligence." McClendon v. City of Columbia, 305 F.3d 314, 325 (5th Cir.2002). As this Court observed in McClendon, "[t]he Supreme Court's discussions of abusive executive action have repeatedly emphasized that `only the most egregious official conduct can be said to be arbitrary in the constitutional sense.'" Id. at 325-26 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (quoting Collins v. City of Harker Heights, 503 U.S. 115, 129, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992))(internal quotations omitted)). The plaintiff must therefore demonstrate that the abuse of power by the state official "shocks the conscience." McClendon, 305 F.3d at 326 (quoting County of Sacramento, 523 U.S. at 846, 118 S.Ct. 1708). Here, even if the Public Bid Law applies, RTA's decision to award the Contract to Clear Channel instead of Marco is not so arbitrary so as to "shock the conscience." See id. Accordingly, Marco does not have a viable substantive due process claim. The dissent, in reaching the opposite conclusion, fails to cite a single case where this Court or any court has found a substantive due process violation under similar circumstances.

4
 In some situations, however, a post-deprivation remedy will satisfy due process requirements if the deprivation results not from established state procedure but from a random and unauthorized action of a state agentParratt v. Taylor, 451 U.S. 527, 541, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled in part not relevant here, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); see also Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990); Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982); Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984); Woodard v. Andrus, 419 F.3d 348 (5th Cir.2005); Caine v. Hardy, 943 F.2d 1406 (5th Cir.1991).

5
 Because the Supreme Court has specifically stated that a state court injunction may satisfy due process as an adequate pre-deprivation remedy,see, e.g., McKesson, 496 U.S. at 36-37, 110 S.Ct. 2238, there is no merit to the dissent's assertion that due process requires a state entity to provide an administrative remedy. Nor are Systems or Haughton controlling in this case; unlike the case before us, Systems and Haughton were disqualification cases, that is, disqualification from having a bid considered. See Systems, 148 F.3d at 573; Haughton, 367 So.2d at 1164. In that context, Systems and Haughton addressed whether a state entity's administrative remedies satisfied due process requirements for exclusion of a bidder from the bidding process. See Systems, 148 F.3d at 575-76; Haughton, 367 So.2d at 1166. Here, however, we are not dealing with a disqualification case. As far as the record shows, Marco's bid was accepted and considered as one of the six bids. Marco does not argue that RTA has disqualified it from bidding on this Contract or on any future RTA contract.

6
 An interested party need not inform the Louisiana attorney general prior to bringing suit, as generally required under La. R.S. § 38:2220.3. La. R.S. § 38:2220.3 does not apply to actions brought by the district attorney, the attorney general, or an interested party under La. R.S. § 38:2220See La. R.S. § 38:2220.1 ("It is the intent of the legislature in enacting R.S. 38:2220.1 through 2220.4 to authorize private citizens and other entities to institute a civil action against public entities to deter the construction of public works or the purchase of materials and supplies in violation of the provisions of R.S. 38:2211 et seq. The provisions of these Sections shall not be construed to eliminate or reduce any causes of action or other forms of relief provided by existing law, including but not limited to suits authorized by R.S. 38:2220.").
Nor, in bids for RTA projects, must an aggrieved bidder exhaust RTA administrative remedies prior to bringing suit. The RTA protest procedures state that "[a]ny person who is aggrieved in connection with the solicitation or award of a contract may protest to the Director of Procurement/TMSEL." In Millette Enterprises, Inc. v. State, 417 So.2d 6 (La.App. 1 Cir.1982), the Louisiana First Circuit Court of Appeals held that similar language in La. R.S. § 39:1671 was permissive rather than mandatory, such that an aggrieved party did not need to exhaust administrative remedies before filing suit. Id. at 10.

7
 To the extentSystems suggested that state court injunctive relief is a post-deprivation remedy, see 148 F.3d at 576, the Supreme Court has indicated otherwise, see McKesson, 496 U.S. at 36-37, 110 S.Ct. 2238. Regardless, the Systems Court had already held that the state entity provided an adequate pre-deprivation remedy through prior notice and a separate hearing, see id. at 575-76, and given that an adequate pre-deprivation remedy is sufficient by itself to satisfy the requirements of due process, see Harper, 509 U.S. at 101, 113 S.Ct. 2510, Systems' discussion of injunctive relief is dicta.
Because the injunctive relief provides Marco with an adequate pre-deprivation hearing, this case is clearly distinguishable from Parratt and its progeny. In those cases, unlike the one before us, the deprivation occurred without any prior hearing. See, e.g., Zinermon, 494 U.S. at 114-15, 120, 122, 110 S.Ct. 975 (complainant involuntarily held in mental hospital for five months without prior hearing); Hudson, 468 U.S. at 520, 104 S.Ct. 3194 (complainant inmates' property intentionally destroyed by prison officer without prior hearing); Logan, 455 U.S. at 426, 102 S.Ct. 1148 (complainant discharged from employment without prior hearing); Woodard, 419 F.3d at 350 (complainant charged excessive fees by court clerk without prior hearing); Caine, 943 F.2d at 1407-08 (complainant doctor's clinical privileges at hospital suspended without prior hearing).

WIENER, Circuit Judge, dissenting:

14
I respectfully dissent. I am convinced that the majority opinion misapprehends the nature of, or glosses over, Marco's substantive due-process claim, grounded as it is in the RTA's knowing and deliberate disregard of Louisiana's public bid law (and its own announced procedure), despite such law having been expressly incorporated by reference in the RTA's enabling act.

I. ANALYSIS

15
The State's bid law has long been recognized as creating a constitutionally protected property interest in the entitlement of the lowest — or, as in this case, the highest — responsible bidder (hereafter, "best bidder") to be awarded the advertised contract.1 One obvious purpose of the bid law is to protect the public fisc by ensuring that the people pay the lowest price available for qualified work (or, as here, receive the most revenue for the privilege granted)2; another is to protect the property right of the best bidder to be awarded the advertised contract. Thus, for a bidder successfully to assert a § 1983 due-process claim, he must establish that the contract at issue is subject to the State's public bid law, that he is the best bidder, and that he has been wronged by the agency's awarding of the contract to another party. Marco's establishing of these elements would entitle it to pursue Fourteenth Amendment due-process claims under § 1983, both substantive and procedural. Even when, for today's purposes, I accept without granting that the panel majority has gotten the procedural due process facet of Marco's claim right, that procedural placebo, viz., Marco's pre- or post-deprivation access to the State's courts, falls far short of being a panacea for Marco's substantive due-process ills, much less the only available cure.

16
Instead of forthrightly deciding the sole legal issue addressed by the parties and by the district court, i.e., whether Louisiana's public bid law even applies to the RTA's letting of the instant contract (I believe that the bid law applies and would so hold on appeal), the majority leaves that question unanswered and merely assumes arguendo that these laws do apply and that Marco has established that it is the best bidder and thus entitled to due process protection.3 Having thus set up the procedural due process strawman through such assumptions, though, the panel majority proceeds to knock it down, in disregard of Marco's substantive due process claim, by conclusionally declaring, without any discussion of the facts or analysis of the law, that the "RTA's decision to award the Contract to Clear Channel instead of Marco is not so arbitrary as to `shock the conscience.'" According to the panel majority, then, solely because Marco had the option of resorting to state court (don't we all?), its entitlement to seek relief there after being arbitrarily and capriciously denied its best-bidder's right to be awarded the contract somehow satisfies the pre-deprivation administrative procedure that due process expressly requires. For the majority, then, the RTA's refusal to follow the presumably applicable state bid law — and its own announced procedures — which is designed to protect, inter alia, a best bidder's constitutional property right, is somehow not so unconstitutionally egregious as to warrant access to, and the attention of, the federal courts. In other words, just because we say so, the RTA's patent disregard of the substantive due process rights guaranteed to Marco under the United States Constitution cannot be rectified in federal court in a § 1983 action.

17
As I find the panel majority's reasoning to be fatally flawed, I too shall proceed (as does the panel majority) on the assumption that Marco is entitled to both procedural and substantive due process before it may be deprived of its conceded property right, and shall illustrate how Marco's constitutional right is violated.

18
Adverting to substantive due process solely in footnote 3 of its opinion, the panel majority conclusionally declares that "Marco does not have a viable substantive due process claim." Yet, the majority never tells us why not. It simply stands mute as to the reasons for concluding that Marco has no substantive due-process claim. To me, that alone would justify a dissent. I shall do more, however, by explaining why I am convinced that Marco does indeed have a viable substantive due-process claim, which it is entitled to pursue in federal court § 1983.

19
As the majority explains, and I agree, "[s]ubstantive due process `bars certain arbitrary, wrongful government actions . . . .'" Here, Marco's substantive due process claim is supported by a plethora of discrete allegations of how the RTA arbitrarily and capriciously disregarded state law — more accurately, how it affirmatively rejected the state bid law as totally inapplicable — by knowingly thumbing its nose at Louisiana's bid requirements and, in an exercise of agency fiat, blatantly handing the contract to an inferior bidder after colluding with that bidder to make its bid the best. It is obvious to me that these shenanigans unquestionably resulted in the deprivation of Marco's constitutionally-recognized and constitutionally-protected property right, as the putative best qualified bidder, to have the contract awarded to it. Lest there be any doubt about the RTA's audacious euchring of Marco out of the subject contract, I reiterate here the RTA's machinations as alleged by Marco (which must be credited at this stage of the proceedings):

20
• The RTA's Request For Proposals ("RFP") for the subject contract was not furnished to Marco despite its previous requests for notice of the initiation of any solicitation for transit advertising.

21
• Similarly, Marco was not informed of the RTA's pre-bid conference on the contract.

22
• Of six proposals received by the RTA, Marco's was patently the best from all standpoints (guaranteed payments, percentage of revenues, contractor media, bartered print and broadcast media, and marketing analysis), and Clear Channel's proposal was a distant third.

23
• Post-bidding, RTA subjectively evaluated the proposals with a previously-undisclosed, arbitrarily weighted formula, baldly adding $1.5 million to Clear Channel's proposal for non-monetary benefits over ten years (which one of the other contractors had also agreed to do yet got no "bonus" for) and adding another bonus ($1.7 million) for non-monetary benefits proposed by Clear Channel, which no other bidder was advised it could submit. Even with this "artificially enhanced figure," Clear Channel's score remained short of the 60 maximum points that only Marco's bid had achieved.

24
• Also post-bid, RTA assigned to Clear Channel a 10-point bonus for compliance with Disadvantaged Business Enterprises ("DBE") despite having stated that no such goals had been established for the subject project and despite obvious non-compliance by Clear Channel.

25
• When all of the foregoing post-bid machinations failed to move Clear Channel ahead of Marco, the RTA allowed Clear Channel (and only Clear Channel) to revise its bid by (1) increasing its guaranteed payment from $10,186,000 to $13,386,000, (2) increasing its estimated revenues by 40% above its original proposal, and (3) artificially inflating its bid above those of Marco and the original second-place bidders.

26
• After accomplishing the foregoing legerdemain, the RTA declared Clear Channel the best bidder even though— despite those post-bidding unilateral changes — Clear Channel's proposal guaranteed only $10,186,000, still more than $3 million less than Marco's guarantee.

27
Assuming, as we must, for purposes of the four-part test for granting a TRO or preliminary injunction, that Marco could prove these allegations, they are quintessentially arbitrary and capricious, and more than sufficient to satisfy the element of likelihood of success, entitling Marco to such a restraint.

28
Typically, the focus of substantive due-process claims in the area of public bid laws is whether the awarding authority has arbitrarily or capriciously designated an inferior contender as the best responsible bidder. In almost every such case, the awarding authority acknowledges (or is at least aware) that it is subject to the bid law, but — at least allegedly — has failed to follow the statutory or regulatory bid rules. Here, in contrast, the RTA has denied from the outset that, in awarding this revenue-producing contract, it is subject to the state bid law at all and, as such, has insisted that its bidders have no constitutionally-protected property rights. The RTA insists further that, for its own reasons — or for no reason — it was also free to disregard its own bid proposal guidelines with impunity, simply because of the revenue nature of the contract it was awarding.

29
As noted, we are asked to decide whether Marco was arbitrarily denied its status as the best responsible bidder, allegedly accomplished by the RTA's capricious favoring of an inferior bidder to the exclusion of Marco, through its conceded disregard of the bid law and the refusal to follow that law and its own announced procedures by self-servingly labeling them as inapplicable. Indeed, to this day, that is the totality of what the RTA relies on, viz., its (erroneously) asserted right to award the instant revenue contract without complying with the public bid law, which is expressly made applicable to the RTA in its enabling statute, and which incorporation by reference contains no limitations of applicability to public works and purchases of materials or supplies.

30
If, as I advocate, we were to remand, and the fact finder were to determine that Marco somehow was not the best responsible bidder, then Marco will have no protected property interest to enforce in a § 1983 action. But the panel majority has conceded for purposes of today's decision, that Marco is the best responsible bidder. As such, we must treat Marco as having a protected property interest that may not be abrogated by the whim (or worse) of the RTA — at least not without violating Marco's substantive due-process rights. It smacks of Lewis Carroll to say that the RTA did not act arbitrarily and capriciously despite (1) self-servingly declaring itself free of the restrictions of the bid laws, (2) conducting its bid process in knowing disregard of its own announced procedures, (3) colluding with the third best of six bidders to enhance that bidder's proposal post-submission, i.e., after "going to school" on Marco's bid, and (4) ultimately awarding the contract to its favored bidder, regardless of its own pre-award guidelines. I cannot see how this willful — and thus arbitrary and capricious — behavior does not shock the majority's conscience: Even as jaded as I have become from living in New Orleans and seeing almost daily media reports of this kind of behavior by local agencies, the RTA has managed to shock my conscience in this instance.

II. CONCLUSION

31
As I see it, the panel majority skirts the sole issue that controlled this case in the district court and that the parties have briefed and argued on appeal, viz., whether the enabling act of the RTA, in incorporating the Louisiana public bid law, makes that law applicable to the award of this particular RTA contract — a question that the majority labels "a difficult and unclear claim under Louisiana law." With respect, I do not find it that difficult, because I stop with the plain wording of the RTA's enabling act and refrain from trying to divine unspoken legislative intent in the face of clear and unambiguous statutory language. We should not be "lawyering" the case as an advocate for one of the parties. I acknowledge that it is generally preferable to avoid reaching a difficult issue of law by resolving a case on a clear and easy one — and that may well be what the majority means to do here. But, I cannot see that we have such a path available to us today. Our only options are to hold that Louisiana's bid law does or does not apply here; and then, depending on our answer, either (1) reverse and remand or (2) affirm. We should not tiptoe around that issue by, sua sponte, going off on the nature of Marco's clearly established due process, property-right claim and latching onto a procedural, state statutory standing provision as a means of disposing of this appeal. It is for these reasons that I cannot concur in the panel majority opinion, and instead must respectfully dissent.

Notes:

1
 Haughton Elevator Div. v. Louisiana Ex Rel. Div. of Admin., 367 So.2d 1161, 1165 (La. 1979). The State's bid laws can create a property interest in either the lowest or highest responsible bidder, depending on the nature of the contract at issue.

2
 Smith v. Town of Vinton, 216 La. 9, 43 So.2d 18, 21-22 (1949) (quoting Boxwell v. Dept. of Highways, 203 La. 760, 14 So.2d 627, 631 (1943)).

3
 Marco's objective allegations, if proved, leave no doubt that its bid was easily the best of the six received by the RTA — at least before the RTA massaged Clear Channel's bid to elevate it above Marco's and one other that also had topped Clear Channel's original bid


NO

NO. 12-09-00064-CV

                         IN
THE COURT OF APPEALS

            TWELFTH
COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

MILLARD VAUGHN AND,                             '     APPEAL
FROM THE 273RD
BARBARA VAUGHN
APPELLANTS

V.                                                                         '     JUDICIAL
DISTRICT COURT OF

PAUL DRENNON AND,
MARY DRENNON,                                           '     SABINE COUNTY,
TEXAS
APPELLEES

                                                      MEMORANDUM
OPINION
Millard and Barbara Vaughn own a parcel of land that shares a
common boundary line with land owned by Paul and Mary Drennon.  The two couples
filed lawsuits against each other due to their inability to peacefully resolve disputes
that arose between them.  A jury returned mixed results for each side and the
trial court disregarded portions of the jury verdict.  Only the Vaughns appeal
from the trial court’s judgment, complaining of the portions that are adverse
to them.  Because the judgment is not final, we dismiss for want of
jurisdiction.
Jurisdiction
Our
initial inquiry is always whether we have jurisdiction over an appeal.  Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.
1993).  As a general rule, with a few mostly statutory exceptions, an appeal
may be taken only from a final judgment.  Lehmann v. Har-Con Corp.,
39 S.W.3d 191, 195 (Tex. 2001).  Rule 301 of the Texas Rules of Civil Procedure
requires the judgment to conform to the pleadings.  Tex. R. Civ. P. 301.  Accordingly, a judgment is final for
purposes of appeal if it disposes of all pending parties and claims in the
record.[1]
Lehmann, 39 S.W.3d at 195.  A final judgment is one that
determines the rights of the parties and disposes of all the issues involved so
that no future action by the trial court will be necessary in order to settle
and determine the entire controversy.  Wagner v. Warnasch, 156
Tex. 334, 338, 295 S.W.2d 890, 892 (1956).
Texas
has long recognized a presumption of finality for judgments that follow a
conventional trial on the merits.  Moritz v. Preiss, 121 S.W.3d
715, 718-19 (Tex. 2003).  Moreover, finality must be resolved by a
determination of the intention of the trial court as gathered from the language
of the decree and the record as a whole, aided on occasion by the conduct of
the parties.  Briscoe v. Goodmark Corp., 102 S.W.3d 714, 718
(Tex. 2003) (Jefferson, J., concurring).  If the record does not affirmatively
demonstrate our jurisdiction, we must dismiss the appeal.  Tex. R. App. P. 42.3(a); Wells v.
Driskell, 105 Tex. 77, 81, 145 S.W. 333, 336 (1912).
While
previous litigation between the two couples was still not finalized, the
Vaughns sued Paul and Mary Drennon.  In a separate action, the Drennons sued
the Vaughns.  When the Vaughns filed their amended petition, they named as
defendants not only the Drennons, but also the Drennons’ grandchildren, Chase
Atwood and Taylor Atwood.  The trial court consolidated the two cases.  All
defendants were served and filed answers.
Neither
the jury charge nor the judgment mentions Chase or Taylor Atwood.  There is no
language in the judgment expressly disposing of the entire case.  The record
contains no documents disposing of the claims against the Atwood defendants.
At oral argument, we inquired about the disposition of these two parties.  The
Vaughns responded with a postsubmission letter brief in which they state that
“[t]he Atwood Defendants were never explicitly dismissed or nonsuited, nor were
the claims against them severed.”  In spite of this admission, the Vaughns
argue that we should apply a presumption of finality to the judgment.  The
Vaughns also argue that the judgment is final because the trial court and the
parties intended it to be final.  Finally, they assert that we may abate the
appeal to permit the trial court to clarify its intentions or modify the
judgment to make it final.
There
is nothing in the record to indicate that the claims against the Atwood
defendants were disposed of or how the parties intended to dispose of the
claims against the Atwood defendants.  The language of the judgment does not
unequivocally express an intent to dispose of all claims and all parties;
instead it specifically disposes of only the Vaughns’ claims against the
Drennons and the Drennons’ claims against the Vaughns.  Because the judgment
does not address all pending claims, either explicitly or implicitly, the
judgment is not final.  Crites v. Collins, 284 S.W.3d 839, 841
(Tex. 2009).  Neither the language of the judgment nor the remainder of the
record indicates that the parties or the trial court intended the judgment to
be a final and appealable order.  Accordingly, the trial court’s judgment is
interlocutory in nature and the presumption of finality does not apply.  See
Moritz, 121 S.W.3d at 719.
We
are prohibited from dismissing an appeal if the trial court’s erroneous action
or inaction prevents the proper presentation of an appeal and can be corrected
by the trial court.  Tex. R. App. P. 44.4(a).  The appellate court
may allow an appealed order that is not final to be modified so as to be made
final.  Tex. R. App. P. 27.2.  If an appellate court is
uncertain about the intent of the trial court’s order, it may, in some cases,
abate the appeal to permit clarification by the trial court.  See Lehmann,
39 S.W.3d at 196.  However, we do not construe the rules of appellate procedure
as conferring authority on an appellate court to abate an appeal while there
are significant issues yet to be decided by the trial court.  See Garcia
v. Comm’rs Court, 101 S.W.3d 778, 785-86 (Tex. App. – Corpus Christi
2003, no pet.).  We cannot conclude from the record that the determination of
the remaining issues in this case would not require more than the disposition
of perfunctory issues that can be procedurally cured by the trial court’s
entering a clarifying or similar order.  See id. at 786.  Thus,
while we are loathe to delay this already protracted litigation, abatement in
this case would be inappropriate.  Accordingly, we hold there is no final,
appealable judgment before this court over which we have jurisdiction, and that
we cannot abate the appeal until a final judgment is before us.

Disposition
Because
the record does not affirmatively demonstrate our jurisdiction, the appeal is dismissed
for want of jurisdiction.

JAMES T. WORTHEN

Chief Justice

Opinion delivered December 31, 2009
Panel consisted of
Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

[1]
An order that does not dispose of all pending parties and claims may also be
final for purposes of appeal in some instances not applicable here, e.g.,
probate cases.  See Lehmann, 39 S.W.3d at 195.


695 N.W.2d 71 (2005)
NORMAN CORP.
v.
CITY OF EAST TAWAS.
No. 127021.
Supreme Court of Michigan.
April 26, 2005.
SC: 127021. COA: 245410.
On order of the Court, the application for leave to appeal the August 3, 2004 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.


                                                                                05/07/2018
        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                         AT NASHVILLE
                           Assigned on Briefs April 18, 2018

          STATE OF TENNESSEE v. PATRICK JAYSON REENERS

                 Appeal from the Criminal Court for Sumner County
                 Nos. 806-2015, 729-2015     Dee David Gay, Judge
                       ___________________________________

                           No. M2016-02184-CCA-R3-CD
                       ___________________________________

The Defendant, Patrick Jayson Reeners, pleaded guilty to public intoxication and
disorderly conduct and received concurrent thirty day sentences. In a separate case, he
pleaded guilty to telephone harassment and received a probation sentence of eleven
months and twenty-nine days. After the entry of his guilty pleas and sentencing, the
Defendant filed a motion to withdraw his guilty pleas “made under life threatening
needed medical attention.” The trial court denied the motion after a hearing. On appeal,
the Defendant claims that the trial court erred when it did not find a “fair and just reason”
to allow the Defendant to withdraw his pleas. After review, we affirm the trial court’s
judgment.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed

ROBERT W. WEDEMEYER, J., delivered the opinion of the court, in which JOHN EVERETT
WILLIAMS, and CAMILLE R. MCMULLEN, JJ., joined.

Christopher V. Boiano, Hendersonville, Tennessee, for the appellant, Patrick Jayson
Reeners.

Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Senior Counsel;
Ray Whitley, District Attorney General; and Thomas B. Dean, Assistant District Attorney
General, for the appellee, State of Tennessee.

                                       OPINION
                                         I. Facts
                                 A. Guilty Plea Hearing
        On April 21, 2016, the Defendant pleaded guilty to disorderly conduct, a Class C
misdemeanor, public intoxication, a C misdemeanor, (Case 729-2015) and telephone
harassment, a Class A misdemeanor (Case 806-2015). The trial court reviewed the
offenses for which the Defendant was entering guilty pleas and the agreed-upon
sentences. The Defendant confirmed his understanding of the plea agreement. The
Defendant stated that he was not taking any medication other than Ibuprofen and could
“pass a drug test.” He testified that his attorney had explained to him the elements of the
crimes, the punishment, and the evidence. The Defendant stated that he believed he had
all the information needed to make the decision to enter the plea. The trial court then
reviewed the rights the Defendant was waiving by entering guilty pleas. The Defendant
testified that he understood his rights and the rights he was waiving. As a factual basis
for acceptance of the plea, the State offered the following facts:

       [T]he facts of Case 729-2015, disorderly conduct and public intoxication,
       those facts stem from events on the 21st day of July, 2015. At that time
       chalk drawings that said obscenities in reference to the police were found
       on the road in front [of] a police officer’s home. . . . [The officer] was off-
       duty. He had a confrontation with the defendant. There was some
       profanity used by the defendant.

              Later another officer had an encounter with him where the defendant
       had some alcohol with him. He was coming home from the market, and
       that officer arrested him for both of these charges, public intox[ication] and
       disorderly conduct.

              In case 806-2015, this stems from phone calls made by the defendant
       to the Gallatin Police Department. As Your Honor knows, that’s been sort
       of an ongoing problem from November 11th, 2014, or thereabouts. And it
       involves multiple calls to the employees of the Gallatin Police Department
       by the defendant in a repetitious and offensive manner.

Following the recitation of these facts, the Defendant agreed that he was guilty based on
the facts as presented by the State. The trial court accepted the Defendant’s guilty pleas
and imposed the agreed-upon sentence of concurrent thirty day sentences for the
disorderly conduct conviction and the public intoxication conviction. For the telephone
harassment conviction, the trial court imposed a suspended sentence of eleven months
and twenty-nine days.

                      B. Motion to Withdraw Guilty Plea Hearing
                                            -2-
       Trial counsel testified that he was appointed to represent the Defendant in March
2016, with regard to Case 729-2015 and Case 806-2015. On the day of the guilty plea
hearing, the Defendant told trial counsel that he had been injured. Trial counsel recalled
that, on the day the Defendant entered his guilty pleas, initially he was adamant that he
would not enter any type of plea agreement. Trial counsel went into court intending to
set the case for the trial docket. At some point, a deputy notified trial counsel that the
Defendant wanted to speak with him. Trial counsel went out into the hallway, and the
Defendant stated that he wanted to enter a guilty plea.

       Trial counsel testified that he was shocked by the Defendant’s statement of intent
to plead guilty. He said to the Defendant, “You’ve changed your mind I don’t know how
many times. . . . Why?” The Defendant responded that he hurt his foot and was not
getting proper medical treatment in the jail. If released from jail, he could seek medical
treatment at Sumner Regional. Trial counsel pointed out to the Defendant that the
Defendant was sitting in a wheelchair, so he must be getting “some type of treatment.”
The Defendant maintained, however, that he was not getting “the kind of treatment that
[he] wanted.” The Defendant then said, “I’m going to take a plea. . . . I know exactly
what I’m doing.”

       Trial counsel testified that he believed the Defendant entered the guilty plea
knowingly. He stated, “[the Defendant] would not have taken a plea if he didn’t know
it.” Trial counsel recalled that he and the Defendant entered the courtroom together, and
the Defendant pleaded guilty. Trial counsel said that he and the Defendant had
exchanged approximately 156 email and text messages throughout his representation and,
during that time, the Defendant had maintained his innocence. Trial counsel said that,
based upon their communication, the Defendant was “totally aware of the charges levied
against him.”

       Trial counsel testified that, at the time of the plea submission hearing, the
Defendant had two notices of appeal: one from contempt orders and the other from the
revocation of his bond. As part of the plea agreement, those appeals were to be
dismissed. Trial counsel explained this to the Defendant and believed the Defendant
understood. Trial counsel said the Defendant did not ask about and he did not discuss
with the Defendant “any sort of relief” he might be able to seek following the guilty plea.

        On cross-examination, trial counsel testified that the Defendant was “extremely
intelligent” with a good knowledge of the criminal system. He confirmed that he had no
question that the Defendant understood the consequences of entering the guilty pleas. On
the day of the plea submission hearing, trial counsel did not observe any signs that the
Defendant was distracted, sluggish, or not coherent. He further denied that there was any
                                           -3-
element of coercion involved in the plea negotiation and hearing. Trial counsel recalled
that he “questioned [the Defendant] severely” about his decision to enter a guilty plea but
that the Defendant “[n]ever hesitated.”

       Trial counsel testified that, approximately a month before the guilty plea, the
Defendant was in court and told the trial court about an injury to his knee from falling out
of the bunk in his cell. The trial court “took great concern” in addressing the Defendant’s
medical concern, speaking with the medical personnel involved about the Defendant’s
treatment.

       Upon further questioning by the trial court, trial counsel testified that he reviewed
the evidence in the cases with the Defendant “[e]xhaustively.” He stated that he was the
Defendant’s sixth attorney in relation to these cases. He confirmed that, pursuant to the
plea agreement, the Defendant received time served for the thirty-day sentences, and he
was released from jail the day of his guilty pleas. He confirmed his belief that the
Defendant was “in pretty good condition mentally and physically” on the day of the
guilty plea hearing and that he did not observe the Defendant experiencing any pain or
discomfort. Trial counsel stated that the Defendant was adamant he would not plead
guilty because “the police department, criminal justice system . . . city hall . . . was after
him and there was no way that he was going to yield to their pressure.” Trial counsel
agreed that the Defendant saw himself as a political activist.1 Trial counsel tried to
explain to the Defendant that he was “just not going about [it] the right way.”

       Sharon Harris, an LPN at the Sumner County Jail, testified that she had treated the
Defendant during his incarceration. She recalled that on April 20, 2016, the Defendant’s
left ankle was evaluated. The Defendant reported that while getting down off his bunk,
he twisted his ankle. The ankle was x-rayed and a nurse provided the Defendant with ice
and Ibuprofen. The x-ray showed no fracture or dislocation but did show a small bone
spur on the Defendant’s heel. This occurred at 3:00 p.m., and she received no other
contact about the Defendant’s heel.

       Ms. Harris testified that the Defendant had been treated for a knee injury “around
      nd
the 22 of March.” The Defendant reported having fallen off his bunk. The Defendant
was provided with ice for inflammation for twenty-four hours after the fall and Ibuprofen
for pain and swelling. The Defendant met with the doctor on March 20, 2016, and
reported that “he felt good.” The Defendant stood up during the appointment with the
doctor to demonstrate that his knee issue was resolved.

       1
           It appears from the record that the Defendant’s charges stem from his activity fighting
against fluoride use in his community.
                                              -4-
        The Defendant testified that he was in a wheelchair from March 22 until March
30, 2016. He stated that his knee improved, so he began walking. On April 20, 2016, he
twisted his foot on an “opening” on the ladder on his bunk bed. The Defendant stated
that his foot was swollen, red and “burning.” Initially, he told trial counsel that he would
not accept a plea, but after learning that “the doctor’s going home and stuff,” he spoke
with Trial counsel again to confirm that he would be released that day if he pleaded
guilty. Upon learning that he would be released so that he could go to the hospital to
have his foot treated, he decided to plead guilty. The Defendant agreed that, at the guilty
plea hearing, the trial court inquired about his knee. The Defendant said that he told the
trial court that his knee was “fine” but that there was “an episode with [his] foot now.”
The Defendant stated that he had never experienced such intense pain and was concerned
about the need to seek medical treatment for his foot.

         The Defendant testified that he was released from jail at around 5:30 p.m. on the
day he pleaded guilty. After release, he went to a friend’s house, “Carl,” to ask about a
ride to the hospital. Carl was unable to provide the Defendant with a ride so he “hobbled
on to the hospital.” The medical records indicated an admission time of after 11:00 p.m.
The Defendant was admitted to the hospital and remained there for six days while treated
for an infection. The Defendant testified that he was not guilty of the offenses in Case
729-2015 (disorderly conduct, assault, and public intoxication) and, as such, he wanted to
try the case. The Defendant confirmed that he was seeking to set aside his guilty plea
because he “needed medical treatment.” The Defendant testified that he also wanted a
trial in Case 806-2015 (two counts of telephone harassment).

        On cross-examination, the Defendant agreed that at the guilty plea hearing he did
not tell the trial court that he was having an issue with his foot and request that the trial
court intervene as it had done when he injured his knee. The Defendant agreed that when
the trial court inquired about his knee at the guilty plea hearing he said, “My knee is
better. . . . I did have another episode with my foot though, but my knee is a lot better.”
He said that he did not pursue further discussion about his foot injury because he “had
already made [his] plan.” He stated, “I wanted to get out to get to the hospital.”

       Upon questioning by the trial court, the Defendant confirmed that he was happy
with trial counsel’s representation and that trial counsel “did a good job.” The trial court
read a portion of the dialogue between the trial court and the Defendant at the guilty plea
submission hearing after the State had recited the facts. In the transcript, the trial court
asked the Defendant if he was guilty of the offenses as described by the State and the
Defendant said, “Yes, Your Honor.” After the trial court read this portion of the
transcript aloud, the Defendant responded by saying, “I’m guilty of doing those things.”
The Defendant explained that he did not think the conduct described by the State was a
crime, but again admitted that he was “guilty of doing this.” When asked by the trial
                                            -5-
court if he had lied at the guilty plea hearing when he testified that he was guilty, the
Defendant said, “no.”

      After hearing the evidence, the trial court made the following findings:

      I find that the defendant is not a credible witness. He has an agenda,
      unfortunately when he gets out, that he’s committed to. That is what
      motivates him, and that is what motivated this particular motion. Again, I
      find that his credibility is severely lacking. I believe he will say or spin or
      twist whatever he wants to fit whatever he’s wanting to get across at that
      particular time.

            In looking at the law in this case, we 1ook at Rule 32(f), and the
      Turner case -- the Turner case is sited [sic] at 919 S.W.2d 346, the Court of
      Appeals in 1995. In looking at that case, among others, and reviewing the
      evidence here, I find number one, that the defendant’s pleas were
      voluntarily, understandingly, and intelligently entered.

      Number two, I must find whether there was a manifest injustice in this
      particular case resulting in the withdrawing of the guilty plea and starting
      back at scratch. Manifest injustice permits withdrawal of a guilty plea if
      the plea was entered due to coercion, not here; fraud, not here. Maybe on
      his part. Duress, mistake, fear, gross misrepresentation; not by the State.
      Possibly on his part. By the prosecutor withholding the material of
      exculpatory evidence which influences the entry of plea, and the manifest
      injustice cannot be predicated upon the accused change of heart, his entry
      of a plea to avoid harsher punishment, or accused’s dissatisfaction with
      harsh punishment imposed after the plea.

              Now, it’s interesting that [ ]there was no manifest injustice here.
      The defendant put on proof of evidence of his medical conditions including
      high blood pressure, arthritis, bursitis, pneumonia, conjunctivitis, and all
      conditions are being treated with medication. Neither physical conditions,
      nor medication inhibited the defendant’s ability to knowledgably and
      intellectually review plea bargaining options. The fact is clear: The day of
      the plea the defendant was offered a time-served sentence and he jumped
      on that plea and took it. Who would not[?] Cases are legion where we’ve
      come back in post-conviction matters and other matters where it’s very
      common that the defendant will change when he knows he’s getting out of
      jail.

                                           -6-
              Now, this also enabled the defendant to get back and continue what
      he wanted to do as evidence by his pleadings that were entered here, the
      “Defendant/Victim of Corruption in Sumner County, Tennessee.” I find
      that there was no manifest injustice here. I find that there was manipulation
      by the defendant of a stubbornness of wanting to get his way today to do
      anything to continue his activist motivations including what [trial counsel]
      testified to that the criminal justice system was the number one thing that
      motivated him.

             The criminal justice system in Sumner County Criminal Court has
      been nothing but fair to this defendant. He’s been afforded seven attorneys
      now, six before [trial counsel] got involved, and each one involved
      personality conflict with the defendant. I am thankful for [trial counsel],
      and I am thankful for Mr. Martin that were able to wade through all that
      and get to these particular points.

            Further, the defendant has two federal lawsuits pending that are very
      important to him that enable him to keep his activism fresh and on going.

            I find, that there is a valid guilty plea here. I find that the foot had
      nothing to do with the fact that he pled guilty on that day. It was just a
      convenient situation that he has used to manipulate this Court as in the past.

             Therefore, [Defendant], your motion to withdraw your guilty plea is
      respectfully denied for all those reasons.

It is from this judgment that the Defendant appeals.

                                       II. Analysis

       On appeal, the Defendant asserts that the trial court erred when it did not find a
“fair and just reason” to allow him to withdraw his plea. The State responds that the
record supports the trial court’s finding that the Defendant entered his guilty plea
voluntarily and knowingly and that there is no manifest injustice requiring correction.
We agree with the State.

        Generally, “a criminal defendant who has pled guilty does not have a unilateral
right to later withdraw his plea either before or after sentencing.” State v. Phelps, 329
S.W.3d 436, 444 (Tenn. 2010); see also State v. Turner, 919 S.W.2d 346, 355 (Tenn.
Crim. App. 1995). Although the trial court “‘should always exercise [its] discretion with
caution in refusing to set aside a plea of guilty, to the end that one accused of crime may
                                           -7-
have a fair and impartial trial,’” Phelps, 329 S.W.3d at 444 (quoting Henning v. State,
201 S.W.2d 669, 671 (Tenn. 1947)), “the defendant bears the burden of establishing
sufficient grounds for withdrawing his plea.” Id. (citing Turner, 919 S.W.2d at 355).

       Whether a defendant should be allowed to withdraw his guilty plea is within the
sound discretion of the trial court. State v. Mellon, 118 S.W.3d 340, 345-46 (Tenn. 2003)
(citing Henning v. State, 201 S.W.2d 669, 671 (Tenn. 1947)). On appeal, “[t]he trial
court’s decision ‘will not be reversed unless it clearly appears that there was an abuse of
discretion.’” State v. Crowe, 168 S.W.3d 731, 740 (Tenn. 2005) (quoting Henning, 201
S.W.2d at 671). “An abuse of discretion exists if the record lacks substantial evidence to
support the trial court’s conclusion.” Id. (citing Goosby v. State, 917 S.W.2d 700, 705
(Tenn. Crim. App. 1995)).

      Rule 32(f) of the Tennessee Rules of Criminal Procedure provides the standards
governing the withdrawal of a guilty plea. The rule is as follows:

      (1) Before Sentence Imposed. Before sentence is imposed, the court may
      grant a motion to withdraw a guilty plea for any fair and just reason.

      (2) After Sentence But Before Judgment Final. After sentence is imposed
      but before the judgment becomes final, the court may set aside the
      judgment of conviction and permit the defendant to withdraw the plea to
      correct manifest injustice.

Tenn. R. Crim. P. 32(f) (emphasis added). The rule dictates that one of two standards is
to be applied, and which standard governs depends on whether a defendant moves to
withdraw his guilty plea before or after a sentence is imposed. Crowe, 168 S.W.3d at
740-41. As the Defendant in the present case moved to withdraw his guilty plea after the
sentence was imposed, the latter, more strenuous standard applies. See id. Accordingly,
the trial court should have allowed the guilty plea to be withdrawn only to correct a
“manifest injustice.” See id.; see also Tenn. R. Crim. P. 32(f)(2).

        Tennessee courts have allowed the withdrawal of guilty pleas to prevent manifest
injustice where:

             (1) the plea was entered through a misunderstanding as to its effect,
      or through fear and fraud, or where it was not made voluntarily; (2) the
      prosecution failed to disclose exculpatory evidence as required by Brady v.
      Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed.2d 215 (1963), and this
      failure to disclose influenced the entry of the plea; (3) the plea was not
      knowingly, voluntarily, and understandingly entered; and (4) the defendant
                                           -8-
       was denied the effective assistance of counsel in connection with the entry
       of the plea.

Crowe, 168 S.W.3d at 742 (citations, footnotes, and internal quotations omitted). The
“manifest injustice” standard “is based ‘upon practical considerations important to the
proper administration of justice.’” Id. at 741 (quoting Kadwell v. United States, 315 F.2d
667, 670 (9th Cir.1963)). While the term “manifest injustice” has not been defined by
statutory or case law, courts have identified on a case-by-case basis circumstances that
meet the manifest injustice standard necessary for withdrawal of a plea. See State v.
Turner, 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). The defendant bears the burden
of establishing that the plea should be withdrawn. Id. at 353.

        The trial court found no reason to allow the Defendant to withdraw his guilty plea
and our review of the record supports the trial court’s decision. The plea submission
hearing transcript indicates that the Defendant understood his sentence and willingly
entered the plea. The Defendant was properly advised of all of his rights. The trial court,
advised him of the sentence, and the Defendant stated that he wanted to plead guilty.
Further, the Defendant confirmed at the motion hearing that, at the time of the plea
submission hearing, he chose to enter the plea to be released from jail on that day.
Moreover, at the motion hearing, the Defendant admitted, again, that he committed the
offenses as provided by the State as a factual basis for the plea. He stated his opinion that
his conduct did not constitute crimes but he agreed that he acted as described by the
State. He also testified that he did not lie to the trial court at the plea submission hearing
when he admitted his guilt. Accordingly, we cannot conclude that the trial court abused
its discretion when it denied the Defendant’s motion.

                                      III. Conclusion

       Based on the foregoing, the judgments of the trial court are affirmed.

                                              ____________________________________
                                                   ROBERT W. WEDEMEYER, JUDGE

                                            -9-


                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT

                            No. 11-4171

UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL CHARLES LEWIS,

                Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (5:10-cr-00147-FL-1)

Submitted:   October 27, 2011             Decided:   November 15, 2011

Before WILKINSON, MOTZ, and DIAZ, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

Stephen Clayton Gordon, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker,
Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Daniel Charles Lewis pleaded guilty to possession of a

firearm    by    a     convicted     felon     in    violation     of    18     U.S.C.

§§ 922(g)(1), 924 (2006).            The district court sentenced Lewis to

324 months’ imprisonment.            Lewis appealed and filed an unopposed

motion to vacate his conviction in light of United States v.

Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).                    We grant the

motion.

            Under 18 U.S.C. § 922(g)(1), it is unlawful for any

person convicted of a crime punishable by imprisonment for a

term    exceeding      one   year   to   possess    a   firearm.        Under    North

Carolina’s structured sentencing regime, Lewis could not have

received a custodial sentence of more than one year for his

previous convictions given his criminal history.                    See N.C. Gen.

Stat. § 15A-1340.17 (c)-(d) (2009).                 Therefore, Lewis lacks the

predicate conviction required to confer guilt under 18 U.S.C.

§ 922(g)(1).         When the district court accepted Lewis’s plea,

this argument was foreclosed by our decision in United States v.

Harp, 406 F.3d 242 (4th Cir. 2005).                  Subsequently, however, we

overruled Harp with our en banc decision in Simmons.                     In view of

our    holding   in    Simmons,     we   grant    Lewis’s   motion,      vacate    his

conviction,      and    remand      to   the     district   court       for   further

proceedings.

                                          2
           We direct the clerk to issue the mandate forthwith.

We   dispense   with   oral   argument   because   the   facts   and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                    VACATED AND REMANDED

                                    3


                           Slip Op. 06-1

            UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
                               :
ESSEX MANUFACTURING, INC.,     :
                               :
          Plaintiff,           :
                               : Before: Richard K. Eaton, Judge
          v.                   :
                               : Court No. 02-00101
UNITED STATES,                 :
                               :
          Defendant.           :
                               :
______________________________:

                              OPINION

[Defendant’s motion for summary judgment granted; Plaintiff’s
cross-motion for summary judgment denied; case dismissed]

                                           Dated: January 3, 2006

     Neville Peterson, LLP (John M. Peterson and Maria E. Celis),
for plaintiff.

     Peter D. Keisler, Assistant Attorney General, Civil
Division, United States Department of Justice; Barbara S.
Williams, Attorney-in-Charge, International Trade Field Office
(Jack S. Rockafellow); Chi S. Choy, Office of Assistant Chief
Counsel for United States Bureau of Customs and Border
Protection, of counsel, for defendant.

     Eaton, Judge:   This matter is before the court on cross-

motions for summary judgment pursuant to USCIT Rule 56.

Plaintiff Essex Manufacturing, Inc. (“Essex” or “plaintiff”),

challenges the classification of its imitation leather jackets by
Court No. 02-00101                                           Page 2

the United States Customs Service (“Customs”)1 under the

Harmonized Tariff Schedule of the United States (2000)

(“HTSUS”).2   Customs classified the jackets under HTSUS

subheading 3926.20.90 as “Other articles of plastics and articles

of other materials of headings 3901 to 3914: . . . . Articles of

apparel or clothing accessories (including gloves, mittens and

mitts): . . . Other: . . . ” subject to a 5% ad valorem tariff

rate.3   Essex argues that its jackets are properly classifiable

     1
          Effective March 1, 2003, the United States Customs
Service was renamed the United States Bureau of Customs and
Border Protection. See Reorganization Plan Modification for the
Dep’t of Homeland Security, H.R. Doc. 108-32 at 4 (2003).
     2
          With respect to the subsections at issue in this
action, the terms of the Harmonized Tariff Schedule of the United
States in 1999 are identical to those of 2000.
     3
          It is undisputed that Customs properly found in
Headquarters Ruling Letter 963800 of April 17, 2001, that in
order to classify the jackets under plaintiff’s proposed
subheading, HTSUS 3926.20.60, plaintiff had to establish that:

     1. The article in issue is plastic;

     2. The article is “rainwear,” which includes jackets,
     coats, ponchos, parkas and slickers;

     3. The article features an outer shell of polyvinyl
     chloride plastic;

     4. The article may, but need not feature an attached
     hood; and

     5. The article is not valued over ten ($10) dollars per
     unit.

See also Pl.’s Mem. of Points and Auth. in Supp. of Pl.’s Mot.
for Summ. J. at 7. It is also undisputed that defendant concedes
                                                   (continued...)
Court No. 02-00101                                           Page 3

under HTSUS subheading 3926.20.60 as “Plastic rainwear, including

jackets, coats, ponchos, parkas and slickers, featuring an outer

shell of polyvinyl chloride plastic with or without attached

hoods, valued not over $10 per unit,” and, thus, not subject to

any tariff.   By its cross-motion, defendant United States (the

“Government” or “defendant”), on behalf of Customs, maintains

that Customs properly classified the subject merchandise under

HTSUS subheading 3926.20.90, and asks the court to deny Essex’s

motion and dismiss this case.   The court has jurisdiction

pursuant to 28 U.S.C. § 1581(a) (2000).   For the reasons set

forth below, the court denies plaintiff’s motion for summary

judgment, grants the Government’s cross-motion for summary

judgment, and dismisses this case.

                            BACKGROUND

     Plaintiff is an importer of the subject merchandise, which

it identifies as polyvinyl chloride (“PVC”) or “pleather”

jackets.   See Pl.’s Mem. of Points and Auth. in Supp. of Pl.’s

Mot. for Summ. J. (“Pl.’s Mem.”) at 1.    In June, July, and August

of 1999, plaintiff imported these jackets at ports of entry in

Atlanta, Georgia and Los Angeles, California.    See Summons of

     3
      (...continued)
that plaintiff’s jackets meet each of these criteria except so
much of number 2 as requires that the jackets be “rainwear.” See
Def.’s Mem. in Opp’n to Pl.’s Mot. for Summ. J., and in Supp. of
a Trial or Def.’s Cross-Mot. for Summ. J. (“Def.’s Mem.”) at 7.
Court No. 02-00101                                             Page 4

1/17/01.   Customs subsequently liquidated plaintiff’s five

Atlanta entries in November 1999, and the single Los Angeles

entry in June 2000, classifying the merchandise under HTSUS

subheading 3926.20.90.   Id.   Thereafter, plaintiff timely filed

protests challenging Customs’ classification.4    Customs, finding

that plaintiff’s jackets were not “rainwear,” denied the protests

and plaintiff timely commenced the present action.     Id.   Both

parties then moved for summary judgment pursuant to USCIT Rule

56.   After briefing was complete, the court ordered each party to

submit a letter brief addressing the issue of whether there was a

“common or commercial” meaning of the term “rainwear.”       See Pl.’s

Letter of 6/24/05; Def.’s Letter of 6/24/05.     Further, on August

4, 2005, an evidentiary hearing was held.   At the hearing, in

addition to presenting testimony as to the “common or commercial”

meaning of the term “rainwear,” the parties, through their expert

witnesses and various exhibits, also presented evidence as to the

construction, design, and marketing of plaintiff’s jackets and

other garments.   All of the testimony presented by the expert

witnesses was subject to cross-examination by opposing counsel as

well as questioning by the court.

      4
          Plaintiff filed its protest concerning the Atlanta
entries on December 22, 1999, and the Los Angeles entry on June
12, 2001. See Summons of 1/17/01.
Court No. 02-00101                                            Page 5

                          STANDARD OF REVIEW

     This court may resolve a classification issue by means of

summary judgment.     See Bausch & Lomb, Inc. v. United States, 148

F.3d 1363, 1365 (Fed. Cir. 1998).    Summary judgment is

appropriate “if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact . . . .”    USCIT R. 56(c).   Summary judgment of a

classification issue “is appropriate when there is no genuine

dispute as to the underlying factual issue of exactly what the

merchandise is.”     Bausch & Lomb, 148 F.3d at 1365; Rollerblade,

Inc. v. United States, 112 F.3d 481, 483 (Fed. Cir. 1997).     Where

jurisdiction is predicated on 28 U.S.C. § 1581(a), Customs’

interpretation of an HTSUS tariff term, a question of law, is

subject to de novo review.     See 28 U.S.C. § 2640(a)(1); see also

E.T. Horn Co. v. United States, 27 CIT __, __, slip op. 03-20 at

4 (Feb. 27, 2003) (not published in the Federal Supplement)

(quoting Clarendon Mktg., Inc. v. United States, 144 F.3d 1464,

1466–67 (Fed. Cir. 1998)).

                              DISCUSSION

     The court employs a two-step process when analyzing a

classification issue: “[F]irst, construe the relevant

classification headings; and second, determine under which of the
Court No. 02-00101                                           Page 6

properly construed tariff terms the merchandise at issue falls.”

Bausch & Lomb, 148 F.3d at 1365 (citing Universal Elecs. Inc. v.

United States, 112 F.3d 488, 491 (Fed. Cir. 1997)).    Here, the

court finds, and the parties agree, that the subject merchandise

should be classified within HTSUS chapter 39, which provides for

classification of “plastics and articles thereof.”    Furthermore,

there is no disagreement that the subject merchandise should be

classified within heading 3926, which provides for “Other

articles of plastics and articles of other materials of headings

3901 to 3914.”   The parties differ, however, as to the

appropriate classification subheading.    Plaintiff argues that the

subject merchandise should be classified under subheading

3926.20.60 as “Plastic rainwear, including jackets . . .

featuring an outer shell of polyvinyl chloride plastic . . .

valued not over $10 per unit.”    See Pl.’s Mem. of Points and

Auth. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n”) at 1–2

(emphasis added).    Defendant, on the other hand, claims that,

because it is not rainwear, the subject merchandise is properly

classified under subheading 3926.20’s “basket” provision, i.e.,

“Other articles of plastics . . . Articles of apparel . . . ,

Other . . . ” under subheading 3926.20.90.    See Def.’s Mem. in

Opp’n to Pl.’s Mot. for Summ. J., and in Supp. of a Trial or

Def.’s Cross-Mot. for Summ. J. (“Def.’s Mem.”) at 7.    Where goods

are capable of being classified under two or more headings, the
Court No. 02-00101                                            Page 7

General Rules of Interpretation5 (“GRI”) direct that the “most

specific description shall be preferred to headings providing a

more general description.”   GRI 3(a).   Under the GRIs, then, if

this court finds that the jackets constitute “rainwear,”

plaintiff’s more specific proposed subheading would trump

defendant’s general provision.   Therefore, because “[t]he meaning

of [a] tariff[] term is a question of law,” the classification of

plaintiff’s jackets is, in accordance with the two-step process,

initially dependent upon this court’s construction of the word

“rainwear.”   See E.M. Chem. v. United States, 20 CIT 382, 386,

923 F. Supp. 202, 206 (1996) (citing E.M. Chem. v. United States,

920 F.2d 910, 912 (Fed. Cir. 1990)).

I.   HTSUS 3926.20.60 is a Principal Use Provision

     For plaintiff to prevail in its proposed classification, its

jackets must be shown to be rainwear.    Both parties contend that

“rainwear,” as contained in subheading 3926.20.60, is a use

provision.    See Pl.’s Opp’n at 16–17; Def.’s Mem. at 1.   As such,

the term is properly read in the subheading as “plastic apparel

     5
          Classification of goods under the HTSUS is governed by
the General Rules of Interpretation (“GRI”). See Carl Zeiss v.
United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999) (citing
Baxter Healthcare Corp. of P.R. v. United States, 182 F.3d 1333,
1337 (Fed. Cir. 1999)). If the proper classification cannot be
determined by reference to GRI 1, it is then necessary to refer
to the succeeding GRIs in numerical order. See N. Am. Processing
Co. v. United States, 236 F.3d 695, 698 (Fed. Cir. 2001)
(citation omitted).
Court No. 02-00101                                            Page 8

used as rainwear.”     See United States v. Hillier’s Son Co., 14

Ct. Cust. App. 216, 222 (1929) (“Obviously, the test of use must

be applied to a preparation in order to determine whether it is

to be classified as a medicinal preparation, although the word

‘use’ does not appear in paragraph 5.”); see also Stewart-Warner

Corp. v. United States, 748 F.2d 663, 667 (Fed. Cir. 1984)

(stating that “[d]og food is a tariff item which, like smokers’

articles, household utensils, tableware, and other

classifications too numerous to detail, is a use classification.

It means food that is used to feed dogs.”).    Moreover, in

completing the first step of the two-step process, the court is

required to reach a conclusion as to the principal use of the

subject merchandise.    Under the Additional U.S. Rules of

Interpretation (“AUSRI”),

     1. In the absence of special language or context which
     otherwise requires–

          (a) a tariff classification controlled by use
          (other than actual use) is to be determined
          in accordance with the use in the United
          States at, or immediately prior to, the date
          of importation, of goods of that class or
          kind to which the imported goods belong, and
          the controlling use is the principal
          use . . . .

AUSRI 1(a) (emphasis added).    Principal use is “the use ‘which

exceeds any other single use.’”     Lenox Collections v. United

States, 20 CIT 194, 196 (1996) (not reported in the Federal

Supplement) (emphasis in original).    Thus, the court must decide
Court No. 02-00101                                             Page 9

if plaintiff’s jackets belong to the class or kind of goods

principally used as rainwear.

     A.   Proper Meaning of Rainwear under the HTSUS

     “Where a tariff term is not defined in either the HTSUS or

its legislative history, the term is given its common meaning,

which is presumed to be the same as its commercial meaning.”

Intercontinental Marble Corp. v. United States, 381 F.3d 1169,

1173 (Fed. Cir. 2004) (citing Rocknel Fastener, Inc. v. United

States, 267 F.3d 1354, 1356 (Fed. Cir. 2001); Carl Zeiss, Inc. v.

United States, 195 F.3d 1375, 1379 (Fed. Cir. 1999)).    “To

ascertain the common meaning of a term, a court may consult

dictionaries, scientific authorities, and other reliable

information sources and lexicographic and other materials.”     Id.

(internal quotation marks omitted).

     Here, both parties cite various reference sources in support

of their positions.   Plaintiff presents the following definitions

of the term “rainwear”:   “Clothing and accessories that are

waterproofed or water-repellant,” Fairchild’s Dictionary of

Fashion 301 (2d ed. 1998); and “waterproof or water-resistant

clothing,” Merriam-Webster Online Dictionary.6    Likewise,

defendant presents the following definitions of the term

     6
          See wwww.m-w.com/dictionary/rainwear.
Court No. 02-00101                                             Page 10

“rainwear”: “garments suited for wearing in rain,” XIII The

Oxford English Dictionary 133 (quot. 1953) (2d ed. 1989); and

“waterproof or water-resistant clothing (as a raincoat) for bad

weather wear,” Webster’s Third New International Dictionary of

the English Language, 1877 (1993).    In like manner, at the

evidentiary hearing held in this matter, the parties’ experts

testified as to the definition of rainwear.7   Plaintiff’s witness

defined the term as “an article of clothing that is worn to

protect you against the elements - - of warmth8 and keeping you

dry and . . . water-resistant.”    Tr. of Civ. Cause For Evid.

Hearing (“Tr.”) at 19:12-14.   Defendant’s witness defined the

term as having the “primary function of protecting the wearer

from the rain.”   Tr. at 95:4–5.   In other words, the parties are

in substantial agreement that “rainwear” means a garment that

keeps the wearer dry in the rain.    The question then arises as to

     7
          On June 13, 2005, prior to the evidentiary hearing,
this court ordered the parties to submit letter briefs
addressing, among other things, whether the term “rainwear” had a
common or commercial meaning within the trade. See Order of
6/13/05. Neither party claimed that “rainwear” had any special
meaning within the garment trade. See Pl.’s Letter of 6/24/05 at
2 (arguing that “the common meaning of rainwear does not include
any of the limitations posited by Customs . . . .”); see also
Def.’s Letter of 6/24/05 at 1 (contending that, despite not
having a special meaning, the common meaning of the term should
be limited).
     8
          It is worth noting that, at various times, plaintiff
seeks to introduce the notion that rainwear is worn not only to
ward off the rain, but also to keep the wearer warm. See, e.g.,
Pl.’s Opp’n at 17 (“purchasers use [the] merchandise to stay dry
and warm in inclement weather.”) (emphasis added).
Court No. 02-00101                                          Page 11

whether all garments that are waterproof or water-resistant and,

therefore, provide some protection from the rain, are rainwear in

their principal use.

     B.   Principal Use of the Subject Merchandise

     As previously noted, the principal use of an article is that

“use . . . which exceeds all others.”   Sports Graphics, Inc. v.

United States, 24 F.3d 1390, 1394 (Fed. Cir. 1994); see also

Lenox Collections, 20 CIT at 196; Automatic Plastic Molding, Inc.

v. United States, 26 CIT 1201, 1205 (2002) (not published in the

Federal Supplement); Int’l Custom Prods., Inc. v. United States,

29 CIT __, __, 374 F. Supp. 2d 1311, 1332 (2005).    This court

customarily employs the several factors first referenced in

United States v. Carborundum Co., 536 F.2d 373, 377 (C.C.P.A.

1976) (“Carborundum Factors”), to decide whether an article is

included in a particular class or kind of merchandise.

Specifically,

     Factors which have been considered by courts to be
     pertinent in determining whether imported merchandise
     falls within a particular class or kind include [1] the
     general characteristics of the merchandise, [2] the
     expectation of the ultimate purchasers, [3] the
     channels, class or kind of trade in which the
     merchandise moves, [4] the environment of the sale, [5]
     the use, if any, in the same manner as merchandise
     which defines the class, [6] the economic practicality
     of so using the import, and [7] the recognition in the
     trade of this use.

Carborundum, 536 F.2d at 377 (internal citations omitted); see
Court No. 02-00101                                           Page 12

also Bousa, Inc. v. United States, 25 CIT 386, 389 (2001) (not

reported in the Federal Supplement); Simon Mktg., Inc. v. United

States, 29 CIT __, __, 395 F. Supp. 2d 1280, 1289 (2005).

     1.     General Characteristics of the Merchandise

     Plaintiff argues that its jackets have the characteristics

of a garment that would keep the wearer warm and dry in inclement

weather.    To that end, plaintiff describes the merchandise as

     below-waist-length “stadium” rainwear jackets, which
     feature the logos and colors of National Football
     League (NFL), National Basketball Association (NBA),
     Collegiate Licensing and Major League Baseball (MLB)
     teams. The outer shell of each jacket is constructed
     of a thick layer of polyvinyl chloride (PVC) plastic
     bonded to a tricot knit “scrim” fabric, which is
     composed 65% by weight of polyester and 35% of cotton.
     The jacket features a full front heavy zipper with long
     sleeves and elasticized cuffs. The collar is folded
     down and the bottom of the jacket features an
     elasticized waist. . . . The jackets are designed to
     be worn out of doors, in rainy or inclement weather.
     For example, they might be worn to football games or
     other sporting events (hence the name “stadium”
     jackets).

Pl.’s Opp’n at 2–3.    For plaintiff, these physical

characteristics place its jackets in the rainwear class or kind

of garment.    “[T]he subject merchandise is used in the same

manner which defines the rainwear class.    Like rubber slickers,

the subject pleather jackets are intended to be used in the rain

or snow to prevent rain from reaching the wearer.”     Pl.’s Opp’n

at 17–18.
Court No. 02-00101                                           Page 13

     Customs disputes plaintiff’s assessment of the subject

merchandise’s physical characteristics.   Specifically, Customs

argues that

     common experience has taught us that many outerwear
     garments which are primarily used or intended to be
     used for warmth and/or fashion may also have some
     water-repellant qualities. But those qualities alone
     do not qualify an article of clothing as belonging to
     the class or kind of merchandise known as rainwear.
     Rather, the principal purpose of rainwear is to keep
     the wearer dry in the rain. The primary function of
     [plaintiff’s] PVC jacket is as [a] substitute
     leather . . . varsity jacket, rather than functioning
     primarily as rainwear.

Def.’s Mem. at 1 (emphasis omitted).   Customs bases this

assertion on its observation that the jackets at issue “do not

have any underarm vents, back vents, or chest vents . . . are

‘waist’ length . . . .   The outside pockets . . . do not have

flaps, buttons, zippers or velcro fasteners . . . [and] there is

no fabric flap covering the zipper . . . .”9   Def.’s Mem. at 2–3.

Customs maintains that although the jackets may be waterproof or

water-resistant, the absence of these features prevents the

merchandise from effectively keeping the wearer dry in the manner

that would allow their principal use to be as rainwear.     That is,

without these features, the jackets cannot have as their “use

that exceeds all others” the protection of the wearer from the

     9
          Plaintiff agrees that the subject merchandise lacks the
above mentioned features; however, plaintiff disagrees that the
presence or absence of those features is determinative of whether
the subject merchandise can be properly classified as rainwear.
See generally Pl.’s Opp’n at 14–18.
Court No. 02-00101                                           Page 14

rain.

     Based on the undisputed facts and the court’s own

examination of plaintiff’s jackets, it is apparent that they lack

the characteristics of garments whose principal use is as

rainwear.   First, the jackets fail to protect the lower half of

the body from getting wet in the rain.10   Indeed, the jackets are

designed with an elasticized waistband over which the jacket

blouses, which, as this court observed when a jacket was worn in

open court, tends to make the jacket ride up to the waist.    As a

result, the wearer’s buttocks and legs would be subject to the

soaking effects of rain.   See Tr. at 103:22-24.   Further, the

scrim tricot fiber material that lines the jackets is intended to

provide warmth, see Tr. at 28:11–13; Tr. at 109:19, an

unnecessary feature of a garment principally designed to keep the

wearer dry in the rain irrespective of the outside temperature.

Rather, this feature is typical of a jacket whose purpose is to

provide warmth whether it is raining or not.    See Def.’s Resp. to

Pl.’s Facts at 2; Tr. at 108:10–13.   Here, the subject

merchandise is constructed of non-breathable PVC material with no

means of ventilation.   See Tr. at 49:17–19.   The absence of any

     10
          As the Federal Circuit has noted, “the merchandise
itself is often a potent witness in classification cases.” Simod
Am. Corp. v. United States, 872 F.2d 1572, 1578 (Fed. Cir. 1989).
Court No. 02-00101                                           Page 15

ventilation, such as grommets or breathable fabric,11 along with

the scrim tricot lining, will cause the wearer to perspire if the

jacket is worn in the rain for any length of time.    See Tr. at

108:15–16, 20–21 (explaining, through testimony of defendant’s

expert, that some type of ventilation is needed for “comfort and

wearability”); see also id. at 55:1–9, 10–13 (admitting, through

the testimony of plaintiff’s expert, that vents might help to

carry away perspiration).    Thus, the general characteristics of

the jackets indicate that they are not of the class or kind of

merchandise whose principal use is as rainwear.

     2.     Expectations of the Ultimate Consumer

     The second of the Carborundum Factors, the expectations of

the ultimate consumer, does little to support plaintiff’s

position.    According to defendant, it is difficult to see how a

consumer can expect plaintiff’s jackets to be used as rainwear

when the “primary function . . . is as a substitute leather

(“pleather”) varsity jacket . . . .”    Def.’s Mem. at 1.   Indeed,

plaintiff’s own expert repeatedly referred to the subject

merchandise as a “stadium jacket,” not as rainwear.    See Tr. at

     11
          The experts for both parties testified that the PVC
material that constitutes the subject merchandise is not
breathable, while at the same time acknowledged that breathable
fabrics, such as Gortex or Microfiber, are often used to
construct garments that are intended to be worn in the rain. See
Tr. at 48–49, 107:15–17.
Court No. 02-00101                                              Page 16

44:5–7.   Specifically, plaintiff’s expert stated that the subject

merchandise was “an all-purpose garment that could be used for

[both] rainwear and activewear.”     Id.   Plaintiff’s expert further

asserted that the type of individual who would purchase the

subject merchandise is “someone that wants to be noticed . . . to

be with their peers and . . . wants to feel part of the whole

sports thing.”   Id. at 37:11–13.    Such evidence leads the court

to conclude that a purchaser would not primarily buy the subject

merchandise for protection from the rain, but instead would

purchase the jacket for wear in any cool weather conditions.

Thus, the expectations of the ultimate purchaser provide support

for Customs’ classification.

     3.   Channels of Trade

     Third among the Carborundum Factors is the channels of trade

in which the merchandise moves.     In arguing that their jackets

move in the same channels of trade as merchandise included in the

class or kind of rainwear, plaintiff claims that “the licensing

agreements and sales sheets [for the production and sale of the

merchandise] show that the merchandise moves in particular sales

environments and channels of trade belonging to rainwear and is

recognized in the trade as rainwear.”      Pl.’s Opp’n at 18.   An

examination of these documents, however, reveals that they

provide, at best, equivocal evidence for plaintiff.      While the
Court No. 02-00101                                           Page 17

sales sheets (some of which appear to be with a related

manufacturer) refer to the merchandise as rainwear, the licensing

agreements do not.   For instance, the licensing agreement with

NBA Properties, Inc. refers to “Adult sized synthetic leather

jackets for mass retail distribution only,” see Letter from NBA

to William Baum of 9/3/1998 at 2, and that of The Collegiate

Licensing Company to “Water Repellant PVC Jacket (Pleather),” see

The Collegiate Licensing Company Specification Sheet at 1.    Thus,

the documents plaintiff cite as support for its proposed

classification are of little use for that purpose.

     4.   Environment of Sale

     The fourth Carborundum Factor is the environment in which

the merchandise is sold.   Despite plaintiff’s contention in its

brief that “the merchandise moves in particular sales

environments . . . as rainwear,” Pl.’s Opp’n at 18, nothing

indicates that the subject merchandise was ever specifically

promoted, advertised, or sold as rainwear.   To the contrary, as

plaintiff’s expert testified and Customs’ expert agreed, given

the “mass-market” character of the subject merchandise, the

stores that would ultimately purchase the jackets for retail and

in which the jackets would be sold, i.e., Sears, Wal-Mart, or

Target, “don’t . . . have specific departments that say

rainwear . . .,” Tr. at 33:16–19 (testimony of plaintiff’s
Court No. 02-00101                                           Page 18

expert), and “[the purchaser] almost ha[s] to do the shopping

[herself] in those kind of stores.”   Id. at 47:4–5; see also Tr.

at 113:9–12, 20–25 (concurring testimony of defendant’s expert).

Thus, it appears that the environment of sale does not aid

plaintiff.

     5.   Use, Economic Practicality, Recognition in the Trade

     The remaining Carborundum Factors, (a) use of the subject

merchandise in the same manner as merchandise which defines the

class; (b) the economic practicality of so using the import; and

(c) the recognition in the trade of this use, merit brief

examination.   First, while there was no direct evidence of the

jackets being actually used to prevent the wearer from getting

wet, there is no dispute that the jackets are waterproof or

water-resistant.   Thus, nothing would preclude the jackets from

having some utility as protection if worn in the rain.     That is,

while they may not afford the more complete protection of other

garments, the court finds that one of the uses of the jackets

could be to provide the wearer some protection from the rain.

Next, while there was no direct evidence of the economic

practicality of using the jackets as rainwear, at an imported

price of under $10 per jacket, there would appear to be little

economic impediment to the jackets being purchased by many

consumers.   Finally, there is no evidence on the record
Court No. 02-00101                                            Page 19

indicating that the jackets would be recognized in the trade as

rainwear.    Both experts consistently referred to the jackets as

something other, i.e., “stadium jackets,” Tr. at 118:5–15,

“varsity jackets,” id., and “outerwear jackets,” id. at 45:12–13,

115:13–14.    Indeed, plaintiff’s expert stated that the jackets

would not be found in a “rainwear” section because the stores

simply “[do not] really have specific departments that say

rainwear anymore.”    Tr. at 33:23–24.   Thus, to the extent that

evidence is on the record, it does not support a finding that the

jackets are recognized in the trade as rainwear.

     Having applied the Carborundum Factors to the subject

merchandise, it is apparent they do not indicate that the

jackets’ “use which exceeds any other single use” is to keep the

wearer dry.    Thus, the jackets are not principally rainwear.

Chief among the reasons for this conclusion is that the general

physical characteristics of the jackets are not in accord with

their principal use being rainwear.      In addition, the remainder

of the Carborundum Factors would not compel a different

conclusion.    As a result, the court rejects plaintiff’s proposed

classification.    This being the case, the court finds that the

defendant has demonstrated that the proper classification12 of

     12
          In a classification case, this court is “required to
decide the correctness not only of the importer’s proposed
                                                   (continued...)
Court No. 02-00101                                           Page 20

the merchandise is the basket provision under HTSUS subheading

3926.20.90, “Other articles of plastics and articles of other

materials of headings 3901 to 3914: . . . Articles of apparel and

clothing accessories (including gloves, mittens and mitts): . . .

Other . . . .”

                           CONCLUSION

     Therefore, the court denies plaintiff’s motion for summary

judgment, grants the Government’s cross-motion for summary

judgment, and dismisses this case.   Judgment shall be entered

accordingly.

                                            /s/ Richard K. Eaton
                                              Richard K. Eaton

Dated:    January 3, 2006
          New York, New York

     12
      (...continued)
classification but of the government’s classification as well.”
Jarvis Clark Co. v. United States, 733 F.2d 873, 874 (Fed. Cir.
1984). Indeed, this court “must consider whether the
government’s classification is correct, both independently and in
comparison with the importer’s alternative.” Id. at 878.