[00:00:00] Speaker 03:
Okay.

[00:00:01] Speaker 03:
The first argued case this morning is number 14, 1726, Ford Motor Company against the United States.

[00:00:08] Speaker 03:
Ms.

[00:00:09] Speaker 03:
Jekyllis.

[00:00:11] Speaker 04:
Thank you, Judge Newman.

[00:00:16] Speaker 05:
Ford appeals from the CIT's second dismissal of Ford's claims for the lack of subject matter jurisdiction.

[00:00:22] Speaker 05:
Four years ago, this case came before this court, and the court pressed customs.

[00:00:26] Speaker 05:
What is an importer like Ford to do if customs refuses to liquidate and render a protestable decision, and the importer believes that it's due a refund of its entries?

[00:00:38] Speaker 05:
Customs' answer four years ago was the importer is supposed to wait.

[00:00:42] Speaker 05:
It either has to wait for a protestable decision, that it can bring jurisdiction under 1581A, or it has to wait four full years

[00:00:50] Speaker 05:
and then bring jurisdiction under 1581 I. This court rejected that argument.

[00:00:55] Speaker 03:
Did they actually say you need to wait four years, or you're just saying that that's what happened?

[00:01:01] Speaker 05:
No.

[00:01:01] Speaker 05:
I actually listened to the oral argument from four years ago, and that's literally what happened.

[00:01:06] Speaker 05:
The court said, what's an importer to do?

[00:01:09] Speaker 05:
And Customs said, wait.

[00:01:10] Speaker 05:
And they said, how long?

[00:01:11] Speaker 05:
The panel said, how long should an importer wait?

[00:01:14] Speaker 05:
And Customs says, four years.

[00:01:16] Speaker 05:
And that's what this court held in Kemsall, too, that after four years,

[00:01:20] Speaker 05:
The Board could have brought this claim if Customs still hadn't liquidated.

[00:01:24] Speaker 01:
Yeah, but what about the discretionary dismissal, which is not something that we resolved in the first appeal.

[00:01:30] Speaker 01:
In fact, we specifically left it open.

[00:01:33] Speaker 01:
And under the Supreme Court's decision in Wilton and the earlier cases that Wilton cites, if there is another avenue of relief, another pending proceeding, that's a ground for denying declaratory relief.

[00:01:46] Speaker 01:
So why isn't that?

[00:01:48] Speaker 01:
proper thing to have done here.

[00:01:50] Speaker 05:
The CIT's discretionary dismissal affords claims the first time and then again the second time was based on its decision to dismiss three affords claims for lack of jurisdiction.

[00:02:02] Speaker 05:
Based on that decision, the CIT said the only way to resolve them all at the same time.

[00:02:07] Speaker 01:
No, but we didn't decide the discretionary dismissal issue.

[00:02:10] Speaker 01:
We left it open, right?

[00:02:11] Speaker 02:
Right.

[00:02:12] Speaker 01:
So now we have a discretionary dismissal.

[00:02:15] Speaker 01:
What is wrong?

[00:02:16] Speaker 01:
with that discretionary dismissal under the Supreme Court's decision in Wilton and the cases that Wilton cites, which suggests that you can deny declaratory relief if there is another proceeding pending which gives you an avenue of relief.

[00:02:30] Speaker 05:
What is wrong with the decision is that at the time Ford brought the suit, there was no other available avenue for jurisdiction.

[00:02:37] Speaker 05:
And if customs can divest the court discretionarily of jurisdiction by rendering post-complaint

[00:02:44] Speaker 05:
liquidations, then customs can always divest the court of 1581i jurisdiction.

[00:02:50] Speaker 01:
This court said in my... What case says you can't take into account things that happened after the filing of the complaint?

[00:02:56] Speaker 01:
Correct, but this court said in my... What case says you, in exercising the discretion, that you can't take into account things that happened after the filing of the complaint?

[00:03:08] Speaker 05:
I'm not sure that any court, that any case says you can't take in post-post-complaint actions

[00:03:14] Speaker 05:
in refusing to exercise jurisdiction.

[00:03:17] Speaker 05:
But this court did say in my context that where exercising jurisdiction would be consistent with the Declaratory Judgment Act, then dismissal is rarely proper.

[00:03:27] Speaker 05:
And here, exercising discretion is consistent with the Declaratory Judgment Act, which says that a party can stop waiting for the other side to act and bring its affirmative claim.

[00:03:39] Speaker 05:
It's also inconsistent with the residual jurisdiction provision, which says that

[00:03:45] Speaker 05:
which allows an importer to challenge administration and enforcement.

[00:03:49] Speaker 05:
So basically, Ford is challenging the ongoing administration of Ford's claims at the time it brought its suit.

[00:03:56] Speaker 05:
It's inconsistent with the deemed liquidation provision, which says that an importer should only have to wait one year.

[00:04:02] Speaker 05:
It has now been more than 10.

[00:04:04] Speaker 05:
This case has been pending for six and a half years.

[00:04:07] Speaker 05:
And the 1581A claims, only three of them are pending in the CIT.

[00:04:12] Speaker 05:
The other six are still in customs.

[00:04:14] Speaker 01:
But I'm still having trouble.

[00:04:16] Speaker 01:
You're familiar with Supreme Court's decision of Wilton, right?

[00:04:18] Speaker 02:
Yes.

[00:04:19] Speaker 01:
And the cases that it cites.

[00:04:21] Speaker 02:
Yes.

[00:04:21] Speaker 01:
So what's wrong with what the CIT did here under Wilton in that line of cases?

[00:04:28] Speaker 05:
What's wrong with what the CIT did here is that it's inconsistent with the Declaratory Judgment Act to force an importer who has an affirmative right

[00:04:37] Speaker 05:
now to refund, to not be allowed to have that right heard, and instead force the importer back into a later administrative process.

[00:04:48] Speaker 05:
This court said last time that what Customs was really doing was saying that Ford should have exhausted, that an importer should always have to exhaust and go under 1581A.

[00:04:59] Speaker 05:
And that's what the CIT held again in refusing to exercise its discretionary jurisdiction.

[00:05:05] Speaker 04:
But it didn't.

[00:05:07] Speaker 04:
That's the problem.

[00:05:08] Speaker 04:
It didn't say that you always should have to.

[00:05:10] Speaker 04:
It said in this particular case that

[00:05:13] Speaker 04:
the A jurisdiction would allow all of the claims to be considered together.

[00:05:17] Speaker 04:
And it's the most fulsome opportunity for the court to receive the best amount of information.

[00:05:24] Speaker 05:
And that decision, Your Honor, was based on two assumptions.

[00:05:28] Speaker 05:
First, that the first three claims couldn't be heard under 1581i because the court held them untimely.

[00:05:34] Speaker 05:
And second, that Ford was going to lose all of its claims in this action.

[00:05:38] Speaker 05:
And thus, that the CIT and an A action

[00:05:41] Speaker 05:
would need to reach the merits of the actual liquidation decision.

[00:05:45] Speaker 05:
That's construing the facts against Ford.

[00:05:48] Speaker 01:
But it is correct, is it not, that if you lose on the timing issue, that you are still going to claim that the liquidation was at the wrong rate, correct?

[00:06:01] Speaker 05:
Correct.

[00:06:02] Speaker 01:
So that issue can't be resolved in an I action.

[00:06:07] Speaker 01:
It has to be resolved in an A action.

[00:06:09] Speaker 05:
Correct.

[00:06:11] Speaker 05:
But Ford believes, and I think there's only one fact this court needs to know, to know that Ford wins on its I action, and there is no need to reach the merits in an A action.

[00:06:21] Speaker 05:
And that is that the record shows that between 2006, February, when customs requested internal advice, we say improperly, two importers, or two specialists at customs had already ruled that Ford's valuation were proper, or already stated that

[00:06:40] Speaker 05:
Ford's valuations were proper.

[00:06:43] Speaker 05:
From that decision in 2006 until after Ford brought suit in 2009, over three years, there was no action.

[00:06:51] Speaker 05:
And under this court's decision in the Ford Trade Zone case cited in the brief, that extended period of inaction is unreasonable as a matter of law.

[00:06:59] Speaker 05:
You don't need to get into all the detailed nuances about how the entries were actually valued.

[00:07:05] Speaker 05:
Customs, what this court said in Ford II was that Ford's challenging Customs' right to dispute Ford's valuation.

[00:07:15] Speaker 05:
Ford is saying Customs waived its right to dispute Ford's valuation.

[00:07:20] Speaker 05:
There's no reason to send this case back for discovery in a bench trial and a determination of how Customs valued Ford's claims when the only thing you need to know is that a three year period

[00:07:32] Speaker 05:
of delay for no basis.

[00:07:35] Speaker 05:
There is no reason in the record.

[00:07:36] Speaker 01:
What you're doing is you're asking us to decide the merits when we're addressing the jurisdictional question as to whether the international trade was correct, that it was more efficient to have all these issues resolved in an A action.

[00:07:50] Speaker 01:
And you're saying, oh, well, we don't have to worry about that because we get to the merits and there isn't anything left for an A action.

[00:07:57] Speaker 05:
But wouldn't that always be true?

[00:07:59] Speaker 05:
If an importer could bring an I action and then customs could render a protestable decision post-complaint and then say now you have an action, you can exhaust, you can bring an A action, we'll talk about all the issues you have in the I action plus all the issues that

[00:08:15] Speaker 05:
that you say you never need to reach in an A action, there would be no jurisdiction under I ever, because customs could always defeat jurisdiction with a post-complaint action.

[00:08:25] Speaker 01:
I don't think the government is arguing that the Court of International Trade here was required to dismiss the declaratory judgment action, just that the CIT had the discretion to do it.

[00:08:38] Speaker 05:
But the CIT's discretion, Your Honor, was not based on a determination that

[00:08:44] Speaker 05:
if it had all the claims in front of it, that it couldn't efficiently decide the case.

[00:08:50] Speaker 05:
It was based on a determination that the case had to go in two different jurisdictional avenues, 1581A for the 2005 entries and 1581I for the 2006 entries.

[00:09:01] Speaker 05:
that decision is incorrect.

[00:09:03] Speaker 05:
If all nine of them are before the court, and the record is before the court, and both parties have briefed judgment on the administrative record, and both parties believe they're entitled to win, it's not more efficient to say, we're not going to decide, and we're going to send you back five years in the process.

[00:09:20] Speaker 05:
At the time the CIT dismissed board claims on a discretionary refusal to exercise its jurisdiction, the case had already been pending for five years

[00:09:29] Speaker 05:
And Ford's case is about inaction.

[00:09:32] Speaker 05:
It's about that these refunds were due 10 years ago.

[00:09:36] Speaker 05:
And custom shouldn't be allowed to basically manipulate the court's jurisdiction by sending it back to the start again and forcing exhaustion of remedies that weren't available when Ford brought suit.

[00:09:47] Speaker 01:
Let me ask you about, I'm sorry.

[00:09:49] Speaker 01:
Go ahead.

[00:09:50] Speaker 01:
I was going to go on to another subject if you have a question about that.

[00:09:54] Speaker 04:
Well, it somewhat relates to this.

[00:09:56] Speaker 04:
But if we were to agree with you that this discretionary determination is flawed because it had an underlying improper basis, which is that three of the claims had to be dismissed because they were time barred.

[00:10:11] Speaker 04:
If we were to agree with you on that, wouldn't it simply result in a remand for the court

[00:10:19] Speaker 04:
exercises discretion based on a proper assessment of the facts?

[00:10:24] Speaker 05:
Respectfully, we ask that this court just decide the issue, because there is such an easy answer to resolving the case.

[00:10:33] Speaker 01:
I think the question that Judge O'Malley was asking is, is it not fair to assume that if the Court of International Trade has addressed all the claims on the discretionary issue, that it would have reached the same result

[00:10:48] Speaker 01:
with respect to all of the claims.

[00:10:50] Speaker 01:
That is, it would have dismissed as a discretionary matter.

[00:10:55] Speaker 05:
I don't know that that's a fair assumption.

[00:10:59] Speaker 01:
Why is it not a fair assumption?

[00:11:00] Speaker 05:
Because both times the CIT dismissed discretionarily, it did so after having dismissed three affords claims for lack of subject matter jurisdiction.

[00:11:10] Speaker 05:
So both times it refused to exercise jurisdiction.

[00:11:13] Speaker 05:
It was based on the fact that it felt it would result.

[00:11:15] Speaker 01:
Well, not with respect to the claims

[00:11:18] Speaker 01:
order dismissed on the discretionary basis.

[00:11:21] Speaker 01:
There was no statute of limitations issue with respect to those.

[00:11:24] Speaker 05:
No, but the court did say it was concerned about conflicting results.

[00:11:28] Speaker 05:
And I think that the conflicting results statement was because those three entries would be stuck back in the administrative process and it couldn't resolve all nine of them at one time.

[00:11:37] Speaker 05:
So I don't believe that there's evidence that it would have refused to exercise its jurisdiction.

[00:11:42] Speaker 05:
And had it done so, I think under Micron Tech, that would have been a basic discretion.

[00:11:47] Speaker 01:
Why in heaven's name wouldn't it have done the same thing with respect to all the clients?

[00:11:52] Speaker 05:
Because it could have resolved it.

[00:11:53] Speaker 05:
Because both parties had briefed the merits.

[00:11:56] Speaker 05:
Because this court said, if you want to challenge whether Ford's entitled to deemed liquidation, do so on a motion for failure to state a claim or lack

[00:12:05] Speaker 05:
summary judgment, it said, you know, the CIT could decide whether to dismiss for discretionary reasons, but need not.

[00:12:13] Speaker 05:
And so I think that under the facts of this case, with both parties having briefed the merits, it is a waste of judicial resources and it is inconsistent with the deemed liquidation statute, the administrative procedure statute, Your Honor.

[00:12:28] Speaker 05:
says that this court, any court, can compel agency action unreasonably later with help.

[00:12:34] Speaker 01:
Before we run out of time, I want to ask you this other question.

[00:12:36] Speaker 01:
There's something that you and the government agree on that I think is wrong.

[00:12:41] Speaker 01:
And that is that the two-year limitations period is jurisdictional.

[00:12:46] Speaker 01:
And under our decision in Sikorsky and a number of recent Supreme Court decisions, it would seem as though the two-year period was not jurisdictional.

[00:12:55] Speaker 01:
Are you familiar with those cases?

[00:12:57] Speaker 05:
I am not.

[00:12:58] Speaker 05:
I do understand that the court had always previously just assumed but not decided that it was jurisdictional.

[00:13:04] Speaker 05:
And I think if this court decides that it's not jurisdictional, it has to assume that the last panel decided it was not jurisdictional because the last panel was expressly called upon to decide the jurisdiction of the lower court and was presented with an argument that the time limit was jurisdictional.

[00:13:22] Speaker 05:
And the court didn't rule otherwise.

[00:13:24] Speaker 03:
If we assume that it's not jurisdictional, that doesn't adversely affect your position.

[00:13:30] Speaker 03:
Correct.

[00:13:31] Speaker 03:
It does not.

[00:13:35] Speaker 04:
It does adversely affect your position that the last panel necessarily decided as a predicate to it.

[00:13:41] Speaker 04:
conclusion that there was subject matter jurisdiction that the last panel had to have decided.

[00:13:46] Speaker 05:
Only if this panel believes the last panel decided it was not jurisdictional and there's no evidence in the case that it found it was not jurisdictional.

[00:13:53] Speaker 01:
There is no evidence one way or the other.

[00:13:56] Speaker 05:
There is no evidence, but Customs did try to raise the argument of timeliness twice in front of this court and this court wasn't interested in the argument probably because it's illogical to say Ford didn't wait long enough and yet waited too long.

[00:14:11] Speaker 05:
I say that I'm, am I in my rebuttal time?

[00:14:14] Speaker 03:
You are, but we'll save your rebuttal time.

[00:14:16] Speaker 03:
You can finish the thought.

[00:14:17] Speaker 03:
Thank you.

[00:14:17] Speaker 05:
Oh, so I think it is inconsistent to say that an importer must wait at least four years, and yet if this court rules otherwise to say, well, the importer had to act within three.

[00:14:28] Speaker 05:
or two, I guess, as the case may be.

[00:14:30] Speaker 05:
I think that the panel didn't address it because it wasn't a compelling argument.

[00:14:36] Speaker 05:
And this panel should hold the same and say, for it properly invoked jurisdiction, and that three years is too long.

[00:14:43] Speaker 03:
Thank you.

[00:14:43] Speaker 03:
Let's hear from the government.

[00:14:45] Speaker 03:
Mr. Miller.

[00:14:51] Speaker 00:
Thank you.

[00:14:52] Speaker 01:
May I please the court?

[00:14:54] Speaker 01:
The trial court's decision.

[00:14:55] Speaker 01:
The two-year period is not jurisdictional, right?

[00:14:58] Speaker 01:
under the Supreme Court's recent cases about jurisdiction under our decision in Sikorsky?

[00:15:05] Speaker 00:
I don't believe that matter has been decided by this court.

[00:15:07] Speaker 01:
No, it hasn't been.

[00:15:08] Speaker 01:
But what I'm saying is it strikes me that under the Supreme Court precedent and our cases, that since the two-year thing is not identified in the statute as being jurisdictional, it is not jurisdictional.

[00:15:24] Speaker 00:
You're correct, Your Honor, that

[00:15:26] Speaker 00:
recent Supreme Court decisions that have to have focused on whether statute limitations are a jurisdictional bar.

[00:15:33] Speaker 00:
The trial court, with respect to this exact issue, in the SKF matter, has decided this issue.

[00:15:38] Speaker 00:
In the NSK matter, it has decided that it is jurisdictional.

[00:15:42] Speaker 00:
Well, that doesn't bind us.

[00:15:44] Speaker 00:
No, Your Honor, it does not bind you.

[00:15:47] Speaker 04:
However, the issue of whether... You have always argued that it's jurisdictional, right?

[00:15:50] Speaker 04:
The last time you were here, before the last panel, you argued that it's jurisdictional.

[00:15:54] Speaker 04:
You argued that it's a question of subject matter jurisdiction before the CIT in the Remand Act, correct?

[00:16:00] Speaker 00:
Yes, Your Honor.

[00:16:01] Speaker 04:
And is it the government's position that the statute of limitations is jurisdictional?

[00:16:05] Speaker 00:
Yes, Your Honor.

[00:16:06] Speaker 00:
It is the government's position that the two-year statute of limitations is jurisdictional.

[00:16:09] Speaker 04:
So what about the language of that statute differentiates it from the things that the Supreme Court considered a Henderson and a Sprogini?

[00:16:20] Speaker 00:
I would just note that this is the initial threshold determination that would allow a claim to proceed within the Court of International Trade under its residual jurisdiction provision.

[00:16:31] Speaker 00:
And in that respect, it's the fundamental gatekeeping capacity for a jurisdiction.

[00:16:37] Speaker 00:
But I don't believe this panel has to reach the question as to whether the two-year statute of limitations is jurisdiction or not.

[00:16:43] Speaker 04:
Well, if it is jurisdiction, then by definition, the prior panel

[00:16:47] Speaker 04:
had to have at least implicitly resolved the question.

[00:16:52] Speaker 04:
Otherwise, it could not have reversed the finding that there was a lack of subject matter jurisdiction.

[00:16:58] Speaker 00:
Correct?

[00:16:59] Speaker 00:
Well, I respectfully disagree, Your Honor, for two basic reasons.

[00:17:03] Speaker 00:
One, the facts upon which the date of a cruel issue needs to be reviewed in order to be decided was not before the trial court or the appellate court at the time of the 2011 appeal.

[00:17:15] Speaker 04:
Well, you argued before the appellate court that it was.

[00:17:18] Speaker 00:
From the government's perspective, we measured the date of accrual from the day of the emigratation.

[00:17:22] Speaker 00:
We advanced a legal argument.

[00:17:24] Speaker 00:
However, from Ford's perspective, they measured the date of accrual from February 2009 when customs did not respond to certain correspondence that it had submitted.

[00:17:34] Speaker 00:
It did not advance that argument.

[00:17:36] Speaker 00:
The underlying document supporting that argument, the administrative letters, as well as a declaration from

[00:17:43] Speaker 00:
from Ford's counsel was not before the appellate court or the trial court at that time, because the administrative record was not filed in this matter until January 25th of 2013.

[00:17:53] Speaker 04:
But you argued in the prior case, both below and up here, that in fact, you would assume that the facts were favorable to Ford, and you would therefore argue that even under those facts, they were time barred.

[00:18:08] Speaker 04:
And then you asked the lower court to conclude that there was lack of subject matter jurisdiction, and the court did, partially on the basis of the time bar.

[00:18:16] Speaker 04:
And when you came up here, you asked that this court affirm the absence of subject matter jurisdiction.

[00:18:22] Speaker 04:
And rather than do that, we reversed.

[00:18:25] Speaker 00:
Yes, Your Honor.

[00:18:25] Speaker 00:
We certainly, the government advanced a legal argument with respect to the date of accrual as an alternative to our primary arguments with respect to jurisdiction.

[00:18:33] Speaker 00:
But in order for the trial court or this panel to fully consider

[00:18:37] Speaker 00:
the issue of the statute of limitations, which requires the court to ascertain the date of accrual, one would assume you'd have to look at both parties' arguments.

[00:18:45] Speaker 00:
And Ford's arguments have an issue of fact related to them, an issue of fact that has underlying documents and declarations that were before this court during the first appeal.

[00:18:56] Speaker 03:
But there's no dispute, I gather, particularly after discovery and the administrative record was filed.

[00:19:03] Speaker 03:
I gather there's no dispute.

[00:19:05] Speaker 03:
But that the government agreed that these refunds were owed to Ford and that they hadn't been paid for four years.

[00:19:14] Speaker 03:
I mean, this is what is really troubling about this case.

[00:19:18] Speaker 03:
We keep arguing and arguing about this and that.

[00:19:22] Speaker 03:
We resolved the technical objections last time the case was up here.

[00:19:27] Speaker 03:
The court of international trade did not follow our instruction.

[00:19:31] Speaker 03:
Apparently with the prodding of the government, we'll have to get to that.

[00:19:36] Speaker 03:
But on the merits, on the substance, assuming that we reach it because the merits must be reached by somebody.

[00:19:46] Speaker 03:
You can't just refuse to respond and say, nevermind, we're not going to give you your money back.

[00:19:54] Speaker 03:
How does the government justify this action when Ford filed that they had underpaid?

[00:20:01] Speaker 03:
The government agreed and accepted their additional payment.

[00:20:04] Speaker 03:
When Ford filed that they had overpaid, the government agreed and refused to make a refund.

[00:20:11] Speaker 03:
What is the justification for our great government treating citizens in this manner?

[00:20:19] Speaker 00:
Well, Your Honor, the government disagrees with Ford on the merits with respect to their seven claims of the Second Amendment complaint.

[00:20:24] Speaker 03:
There's no argument of entitlement, I gather.

[00:20:27] Speaker 00:
Pardon, Your Honor?

[00:20:28] Speaker 03:
There is no argument of entitlement.

[00:20:30] Speaker 03:
to the refund entitlement.

[00:20:33] Speaker 00:
Oh, no, the government would disagree that Ford is entitled to a refund and we didn't matter of quantum.

[00:20:37] Speaker 03:
You're arguing about timeliness and filing and what seems liquidated and what isn't not as, as I understand the record as to the amount of the overpayment.

[00:20:50] Speaker 00:
Before the trial court, we disputed the merits of Ford's claim.

[00:20:54] Speaker 00:
We moved to dismiss, and then the alternative, we moved for judgment on the agency record.

[00:20:57] Speaker 03:
We disputed the merits, but not as a matter of quantum, as I understand it.

[00:21:02] Speaker 00:
You mean the exact amount of the refund that is due to Ford?

[00:21:05] Speaker 03:
The amount that was overpaid.

[00:21:06] Speaker 03:
The record is full of one customs inspector after another agreeing with Ford's valuation.

[00:21:16] Speaker 00:
We've never reached that question yet, Your Honor, in terms of, with respect to each of Ford's seven substantive claims.

[00:21:21] Speaker 03:
We've never reached the question.

[00:21:23] Speaker 03:
And how many years have transpired?

[00:21:26] Speaker 00:
Ten?

[00:21:27] Speaker 00:
Your Honor, this case was filed in 2009, yes.

[00:21:30] Speaker 03:
Okay.

[00:21:31] Speaker 00:
The government does dispute each of the merits of Ford's claim, and before the trial court, each of those claims were briefed.

[00:21:39] Speaker 00:
The trial court did not reach the merits, though, however, when it decided the case.

[00:21:43] Speaker 00:
and dismissed it both for discretionary reasons, and then with a limited number of claims, with respect to five claims for only three entries, it dismissed on this timeliness issue with the remainder of the claim.

[00:21:53] Speaker 04:
You would agree, though, that the trial court's discretionary decision in large measure was predicated upon its conclusion that it couldn't reach those three claims that it found to be untimely under I. Isn't that correct?

[00:22:08] Speaker 00:
No, Your Honor.

[00:22:10] Speaker 00:
What the trial court was saying when it was saying, for purposes of judicial economy, why it would prefer to leave the entire case for the A action, goes to Judge Newman's point, is that there's two different elements to this case.

[00:22:21] Speaker 00:
There's the actual liquidation, where once the actual accounting is done, Ford would be able to challenge those actual liquidations, which would arise in the A case.

[00:22:29] Speaker 00:
But that's not the merits of Ford's case with respect to this case.

[00:22:33] Speaker 00:
This case, the merits, Ford argues that its entry is de-moliquidated.

[00:22:37] Speaker 00:
because customs purportedly did not take some action.

[00:22:41] Speaker 04:
But the lower court's opinion is not very long.

[00:22:43] Speaker 04:
And it said, I begin with the proposition that three of these claims can't be considered in the context of I. And so the only way we can consider them all together is if we put them under A. Isn't that, in fact, one of the basic predicates for the court's exercise of its discretion?

[00:23:02] Speaker 04:
And if that first predicate was wrong,

[00:23:05] Speaker 04:
Say we disagree with you on the statute of limitations issue.

[00:23:08] Speaker 04:
If that first predicate was wrong, what do we do?

[00:23:10] Speaker 04:
Do we remand for it to reconsider its discretionary determination?

[00:23:15] Speaker 04:
Or can we do as Ford says and say, even if that discretionary determination was based on improper facts, we can decide the question right now?

[00:23:29] Speaker 00:
With respect to each one of those questions, first,

[00:23:32] Speaker 00:
The trial, the appellate court could not reach the merits in this case because the trial court has not reached the merits in the first instance.

[00:23:39] Speaker 00:
If the trial court decides that the underlying foundation of those three claims, as you've just identified, was an improper determination, there's nothing in the record, if it were remanded, to show that... No, I think the question is this.

[00:23:50] Speaker 01:
I think the question is whether the discretionary dismissal that was made by the Court of International Fright on the remand was affected by its view

[00:24:01] Speaker 01:
that some of the claims were untimely.

[00:24:05] Speaker 00:
I don't believe it was affected by its view, Your Honor, because the three bases for its discretionary dismissals are unrelated to this timeliness issue.

[00:24:13] Speaker 00:
The three bases by which the trial court dismissed the lion's share of the claims of this action are, one, that 1581A is a perfectly suitable form to resolve both the de-liquidation issue and the issue of whether notices were actually sent.

[00:24:27] Speaker 00:
Two, because of the fact-intensive nature of Ford's claims, the trial court would benefit from the development of a judicial record as opposed to an administrative record, because under an A case, the parties would be able to engage in discovery, depositions would be taken, documents would be exchanged.

[00:24:43] Speaker 03:
That's fine.

[00:24:43] Speaker 03:
Send it back.

[00:24:44] Speaker 03:
We ordered them to decide the merits.

[00:24:46] Speaker 03:
They decided, they announced that they were not going to follow our order.

[00:24:50] Speaker 03:
It seems to me that courts have not only the authority, but perhaps also the obligation to see

[00:24:57] Speaker 03:
that untimely litigation, punitive interactions are brought to an end by resolving the issues.

[00:25:07] Speaker 03:
And we have been asked to do so.

[00:25:09] Speaker 03:
Then what, in your view, prevents a court from resolving issues?

[00:25:18] Speaker 03:
If there are factual disputes as to quantum,

[00:25:20] Speaker 03:
I don't believe there are.

[00:25:22] Speaker 03:
You say there are.

[00:25:23] Speaker 03:
That might raise another question.

[00:25:26] Speaker 03:
However, we ordered the Court of International Trade to resolve those disputes.

[00:25:32] Speaker 00:
Yes, Your Honor.

[00:25:32] Speaker 00:
I believe the Court of International Trade was following the Court's instruction on page 19 of the 2011 appeal that invited it to review this discretionary issue and determine whether based upon... They didn't review it.

[00:25:42] Speaker 03:
They followed the government's view that they had no authority to do so.

[00:25:49] Speaker 00:
With respect to only those four claims of three entries, with the lion's share of the case, the trial court took the invitation of the appellate court and reviewed the discretionary factors that allow it not to exercise jurisdiction under the Declaratory Judgment Act, notwithstanding the fact that jurisdiction may be available.

[00:26:07] Speaker 00:
Under the Wilton case, as the court has previously identified, the trial court has unique and substantial discretion in deciding whether to declare

[00:26:15] Speaker 00:
the rights of litigants, and the trial court in this instance considered three factors, that the 1581A is an appropriate forum to resolve the full scope for its challenges, that the trial court would benefit from discovery in this case as opposed to reviewing an administrative record, and then finally in the interest of judicial economy and efficiency, by allowing all of the issues to be raised in these A cases, it would foreclose the possibility of piecemeal litigation, because if in fact the appellate court would reverse the trial court's dismissal.

[00:26:44] Speaker 00:
and send it back.

[00:26:45] Speaker 00:
And the government were to prevail on the merits for deemed liquidation claims.

[00:26:50] Speaker 00:
And that's the crux or essence of the second amended complaint in this matter.

[00:26:54] Speaker 00:
Then Ford would be permitted, once customs affirmatively liquidated the entries, which it has, to challenge the actual calculations of those entries in a later A case.

[00:27:02] Speaker 00:
So even we have this circumstance where there could be two litigations that result from the processing of these entries.

[00:27:10] Speaker 00:
And the trial court was trying to forego that

[00:27:13] Speaker 00:
possibility by allowing all issues to be raised in one action, the 1581A action, which is consistent with the congressional intent of the 1581 statute for the trial court.

[00:27:25] Speaker 00:
In essence, Ford's challenge here is to the extension of liquidation.

[00:27:29] Speaker 00:
But presumably, if in fact that is resolved in the government's favor and that the government did properly extend liquidation, Ford will likely challenge the eventual liquidation.

[00:27:39] Speaker 00:
And that would be the subsequent A case.

[00:27:41] Speaker 00:
that the trial court was referring to and is trying to prevent the peaceful litigation aspect of it.

[00:27:47] Speaker 00:
First, deciding this issue of deemed liquidation in the context of 1581-I, and then second, deciding the actual calculations with respect to liquidation in the 1581-A case.

[00:27:58] Speaker 04:
I know that you argue that the statute of limitations is jurisdictional and you have strong basis for doing that, but it's also somewhat inconsistent with your argument that

[00:28:10] Speaker 04:
that it wasn't necessarily decided by the prior panel.

[00:28:13] Speaker 04:
And if, in fact, it's not jurisdictional, which would allow it to be reconsidered below, then there would have had to have been an analysis of equitable towing, which didn't occur in this case.

[00:28:25] Speaker 04:
Is that right?

[00:28:26] Speaker 00:
No, Your Honor.

[00:28:27] Speaker 00:
And I would point the court to page 6 and page 15 to 16 of this court's prior decision.

[00:28:34] Speaker 00:
On those two pages, it framed the jurisdictional question.

[00:28:37] Speaker 00:
And on page 6,

[00:28:39] Speaker 00:
of the court's decision, it said, the first question presented by this appeal is whether the trial court correctly applied its own jurisdictional statute, 1581.

[00:28:47] Speaker 00:
We are specifically concerned with the interactions between the enumerated grants of jurisdiction set forth in subsections A through H of the statute and the grant of residual jurisdiction in subsection I. But our job as a court of appeals is to assess the scope of our own jurisdiction and to assess the scope of the lower court's jurisdiction.

[00:29:05] Speaker 04:
If there was no subject matter jurisdiction over those claims because they were time barred, then we couldn't have even assessed this 1581 I question, could we?

[00:29:17] Speaker 00:
No, Your Honor.

[00:29:17] Speaker 00:
I believe that's exactly what occurred.

[00:29:19] Speaker 00:
I believe that the appellate court's analysis was focused on this threshold determination of whether it's A jurisdiction or I jurisdiction.

[00:29:26] Speaker 00:
What is the nature of this claim?

[00:29:28] Speaker 00:
And in this court's decision in Kemp's law, it engaged in that exact same analysis.

[00:29:31] Speaker 00:
It looked to the nature of the importer's claim and determined which of the subparagraphs of 1581 is the appropriate subparagraph to resolve those claims.

[00:29:41] Speaker 00:
And in this decision, this court's prior 2011 decision, it determined that 1581i is available to board to resolve this deem liquidation issue.

[00:29:50] Speaker 04:
However, it did not get there if we don't have jurisdiction over the case.

[00:29:54] Speaker 00:
I believe your honor, my time is running short.

[00:29:56] Speaker 00:
May I answer your question?

[00:29:58] Speaker 00:
I believe the court never just reached that secondary issue is once we have decided the jurisdictional question under 1581, turning to the next jurisdictional statute, 2636, of whether then are those claims timely under 2636?

[00:30:12] Speaker 00:
There's two different jurisdictional statutes at times.

[00:30:15] Speaker 04:
How can we ignore that?

[00:30:17] Speaker 04:
How could we as a court of appeals ignore either our jurisdiction or the lower court's jurisdiction over the very case before us?

[00:30:25] Speaker 00:
Well, I believe this court was solely focused on that initial threshold determination based upon the language of the trial.

[00:30:32] Speaker 04:
You think the court just made a mistake?

[00:30:34] Speaker 00:
In the initial determination?

[00:30:36] Speaker 04:
In the prior appeal?

[00:30:38] Speaker 00:
Well, clearly the government had a different position than the outcome of the court, but the government's not here to relitigate what has been previously decided by this panel.

[00:30:48] Speaker 03:
Thank you.

[00:30:49] Speaker 03:
Anything else for Mr. Miller?

[00:30:51] Speaker 03:
Thank you, Mr. Miller.

[00:30:53] Speaker 03:
Mr. Douglas?

[00:30:58] Speaker 05:
on why this court should reach the determination now and not remand again.

[00:31:03] Speaker 05:
The case has been pending for six and a half years.

[00:31:06] Speaker 05:
Ford's request for a refund was filed more than 10 years ago.

[00:31:09] Speaker 05:
Under 28 U.S.D.

[00:31:10] Speaker 05:
2106, the appellate court may direct the entry of an appropriate judgment.

[00:31:16] Speaker 05:
And this court in Oswald said that there is no purpose served on remand where the record was fully developed.

[00:31:22] Speaker 05:
Under 5 U.S.D.

[00:31:23] Speaker 05:
706, the scope of review for an agency action under 1581 I

[00:31:28] Speaker 05:
That statute says, to the extent necessary to a decision and when presented, the court shall decide on a review of the whole record and the court shall compel agency unlawfully withheld or unreasonably delayed.

[00:31:42] Speaker 05:
and shall hold unlawful and set aside agency action and conclusions that are arbitrary, capricious, and abusive discretion.

[00:31:49] Speaker 05:
And as Judge Newman noted, when Ford filed entries for its Volvo subsidiary and Ford owed more money, Customs accepted those liquidations and took them more money.

[00:32:00] Speaker 05:
But when Ford filed entries for its Jaguar subsidiary and said, we paid too much at entry and we're entitled to the refund, Customs sat on that for four years

[00:32:09] Speaker 05:
And in fact, for the 2006 entries that the court acknowledged jurisdiction over, Customs delayed liquidations of those for a full year after Ford filed suit based on no explanation.

[00:32:21] Speaker 05:
It had already, according to Customs, decided that Ford wasn't entitled to refund and still didn't liquidate and still delayed Ford's ability to bring a protestable action.

[00:32:31] Speaker 05:
So under this court's precedent, under the policies,

[00:32:36] Speaker 05:
ruling in Ford's favor is consistent with the Declaratory Judgment Act, and refusing to rule is improper.

[00:32:42] Speaker 05:
That's what Ford is saying, and that's why this court should decide and not remand for another four years of litigation of whether Ford's entitled to his three funds.

[00:32:52] Speaker 05:
If this court has no further questions.

[00:32:54] Speaker 03:
Okay.

[00:32:55] Speaker 03:
Thank you, Ms.

[00:32:56] Speaker 03:
Sackler.

[00:32:56] Speaker 03:
Thank you both.

[00:32:57] Speaker 03:
The case is taken under submission.