[00:00:02] Speaker 04:
I am Greg Tufel here on behalf of the Appellant International Custom Products Inc.

[00:00:07] Speaker 04:
I had asked if I made a reserve five minutes for a rebuttal.

[00:00:12] Speaker 02:
Just note the yellow light.

[00:00:14] Speaker 04:
Will do.

[00:00:14] Speaker 04:
Thank you.

[00:00:16] Speaker 04:
So the procedural protections of 19 U.S.C.

[00:00:20] Speaker 04:
section 1625C, they sound great in theory.

[00:00:23] Speaker 04:
Until you realize that as a practical matter, the government's free to disregard them at will, pretty much with impunity,

[00:00:30] Speaker 04:
just so long as the duties that they impose in flagrant disregard of a binding advanced classification ruling are too high for and beyond the ability of the importer to pay.

[00:00:38] Speaker 04:
I mean, it's this unconstitutional and untenable injustice that ICP begs this court to correct.

[00:00:46] Speaker 04:
So the CIT error is dismissing ICP's complaint and in refusing to allow amendment.

[00:00:53] Speaker 04:
This court is all too familiar with the facts of this case, Judge Bryson especially.

[00:01:01] Speaker 04:
Customs failure to understand and apply its own rules led it to persecute an innocent and honest importer and put him out of business for no reason.

[00:01:11] Speaker 02:
Mr. Tuford, you sound like you're talking to a jury.

[00:01:14] Speaker 04:
I don't mean to your own.

[00:01:15] Speaker 02:
You're dealing with law and dealing with a decision from trial court.

[00:01:20] Speaker 02:
And how is that wrong?

[00:01:22] Speaker 04:
Sure, and so the errors that first and foremost we challenge the constitutionality of a jurisdictional statutory scheme that allows the government to effectively deprive ICP in this case or any importer of a property interest in a ruling without due process of law.

[00:01:43] Speaker 04:
they're supposed to provide due process pursuant to 19 U.S.C.

[00:01:47] Speaker 04:
Section 1625C.

[00:01:48] Speaker 02:
You're concerned with the statute that says you have to pay before you can challenge?

[00:01:55] Speaker 04:
Right.

[00:01:55] Speaker 04:
I mean, 28 U.S.C.

[00:01:58] Speaker 04:
Section 2637A is the statute that you referenced that requires the importer to pay before you can bring a protest.

[00:02:06] Speaker 04:
And the way this Court has interpreted the statutory scheme and

[00:02:10] Speaker 04:
routed ICP and any other importer that finds itself in this unfortunate situation.

[00:02:15] Speaker 04:
It's like a maze with no end.

[00:02:17] Speaker 04:
There's no way an importer without enough money can challenge the deprivation of its property interest without due process, the due process that would seem to be guaranteed by 19 U.S.C.

[00:02:28] Speaker 04:
Section 1625C, but is disregarded at will by the government.

[00:02:32] Speaker 04:
So long as you don't have enough money to pay, you can be deprived of your property interest in a ruling without notice, without opportunity to be heard,

[00:02:39] Speaker 04:
Without any process at all.

[00:02:40] Speaker 03:
This is your as applied challenge?

[00:02:42] Speaker 04:
As applied, yes.

[00:02:43] Speaker 03:
So what would you say is the standard for being able to successfully invoke an as applied constitutional challenge in these sorts of cases?

[00:02:54] Speaker 03:
Is it any time someone can't afford it, then it becomes unconstitutional?

[00:03:01] Speaker 03:
What would you say is the legal standard?

[00:03:04] Speaker 04:
So the legal standard, first you have to show that you have a valid property interest.

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

[00:03:09] Speaker 03:
I'm not sure you do, but just getting past that, what is the standard for this kind of as applied challenge?

[00:03:17] Speaker 03:
Obviously, you say your client can't afford to pay the duty up front.

[00:03:22] Speaker 03:
That's OK.

[00:03:23] Speaker 03:
But I mean, is that all that needs to be done to satisfy

[00:03:31] Speaker 03:
holding the statute unconstitutional as applied in the circumstance?

[00:03:36] Speaker 03:
Is that it's because the importer can't afford it?

[00:03:41] Speaker 04:
Well, I think there's, you know, adequate case law is showing that, you know, in situations like the Colorado case that we cite in the reply brief that where a party who only by reason of inability to pay is denied

[00:03:58] Speaker 04:
Any opportunity to be heard, that is considered a denial of due process.

[00:04:04] Speaker 04:
I don't know that there's a case articulating a standard, but beyond the reasonable ability of the litigant to pay, it can't be a reason for denying a litigant the opportunity to be heard and notice an opportunity to be heard before it's deprived of its property interest.

[00:04:20] Speaker 04:
That's insufficient basis for denying someone their constitutional right to notice an opportunity to be heard pursuant to the Fifth Amendment.

[00:04:27] Speaker 04:
before you deny them a property, it's interesting.

[00:04:30] Speaker 03:
What about the tax cases at the government sites that seem analogous here?

[00:04:36] Speaker 03:
Courts have held that due to the financial hardship of having to first pay the tax before you come into the courts isn't necessarily unconstitutional.

[00:04:48] Speaker 04:
So, actually it was a case of first impression.

[00:04:51] Speaker 04:
I've scoured the cases that the government site

[00:04:55] Speaker 04:
don't actually hold that it's okay to deprive a party of a property interest without notice, without opportunity to be heard, or to impose beyond their ability to pay a financial requirement before you will hear them.

[00:05:08] Speaker 04:
The tax cases, for example, Cheatham, the tax had already been paid.

[00:05:12] Speaker 04:
It wasn't an issue in the case, the Supreme Court case in Cheatham.

[00:05:15] Speaker 04:
It wasn't an issue in the case whether the importer, or yeah, it wasn't the importer, that could afford to pay or not.

[00:05:24] Speaker 04:
In the Flora case, they made passing reference to Cheatham and they didn't treat the issue as having been resolved by the court in Cheatham about whether if a situation presents where the government has set up a statutory scheme where only if you have enough money can you have an opportunity to be heard before your property interest is taken away from you, that that's constitutional.

[00:05:49] Speaker 04:
That actually issue has never been squarely before any court that I could find.

[00:05:57] Speaker 01:
What do you think is the, give me the best statement that you think and the best support you think there is for the proposition that there is a property interest in the initial ruling in this case, initial classification.

[00:06:16] Speaker 04:
Yeah, I would point to the Court of International Trade.

[00:06:20] Speaker 04:
They cited the Board of Regents versus Roth case

[00:06:25] Speaker 01:
Well, Board of Regents against Roth just says if you have a property interest, for example, in employment, where you have a tenured employee, then that's a property interest.

[00:06:35] Speaker 01:
So what I'm looking to you for is not just the general law of property interest to give you grant constitutional protection under the procedural due process principles, but what is your best authority for the proposition that this kind of classification conveys

[00:06:54] Speaker 01:
a property interest on the importer.

[00:06:57] Speaker 04:
I don't think there's a case out there holding specifically that an advanced classification ruling conveys a property interest on the importer.

[00:07:04] Speaker 04:
It's by analogy to all the cases that have found property interest.

[00:07:08] Speaker 04:
We say the government in this case gives you a advanced classification ruling.

[00:07:13] Speaker 04:
You rely on that.

[00:07:14] Speaker 04:
There's a statutory scheme where the government doesn't have unfettered discretion to just revoke it willy-nilly at will.

[00:07:19] Speaker 04:
They have to follow certain procedures.

[00:07:20] Speaker 04:
They have to meet certain standards to revoke

[00:07:22] Speaker 04:
an advanced classification ruling.

[00:07:24] Speaker 04:
That creates a reliance interest on the part of the holder of the ruling, not unlike a welfare recipient, their reliance on their welfare benefits or social security.

[00:07:35] Speaker 01:
Bloomberg against Kelly, though, was very much influenced by the circumstances of the, I guess it was Miss Kelly, where that has not been extended freely into areas of commercial practice.

[00:07:51] Speaker 01:
I mean, for example,

[00:07:52] Speaker 01:
If I go to the IRS and I ask for an advance ruling as to whether a particular asset will be taxed at the income will be taxed at the capital gains or at the ordinary income level and they say capital gains and I rely on that.

[00:08:08] Speaker 01:
I spend the money that I otherwise would have to devote to the taxes and they change their mind and they say no we made a mistake it actually is ordinary income.

[00:08:17] Speaker 01:
I don't suppose that I have a

[00:08:19] Speaker 01:
a property interest in that initial determination by the IRS, do I?

[00:08:24] Speaker 01:
That they would have to go through a notice and hearing process in order to decide.

[00:08:29] Speaker 04:
Not an expert on those cases, but if I vaguely recall that there is not in the case of an IRS ruling a property interest created, I think that's what the courts have held in those cases.

[00:08:38] Speaker 04:
I think the most analogous cases out there are probably the license cases, building permit cases, there's a commercial case for you.

[00:08:44] Speaker 04:
where courts have held that you can have a rough property interest in a building permit, and that states can't just willy-nilly revoke a building permit.

[00:08:52] Speaker 04:
So there are analogous circumstances.

[00:08:54] Speaker 04:
It's certainly not limited to individuals.

[00:08:56] Speaker 04:
Corporations can have property interests, and those property interests are entitled to protection under the fifth amendment, just like a welfare recipient's property interests are protected.

[00:09:06] Speaker 04:
So I think the key difference in an IRS

[00:09:11] Speaker 04:
ruling versus an advanced classification ruling.

[00:09:15] Speaker 04:
And the advanced classification rules are designed to create reliance.

[00:09:19] Speaker 04:
They're designed to allow an importer to plan out its activities to decide whether it's even going to import a product, how much it has to charge its customers in the US.

[00:09:27] Speaker 04:
There's all kinds of jobs and plans at stake that get upended if they don't follow that ruling that Congress recognized in enacting 1625C are very important interests to protect and need procedural protection.

[00:09:41] Speaker 04:
Once you give a ruling, you can't pull the rug out from under somebody.

[00:09:46] Speaker 04:
It's a little different when you're seeking a ruling from the IRS as to tax treatment.

[00:09:52] Speaker 04:
Yes, you may spend the money on something else.

[00:09:54] Speaker 04:
I guess there's that level of reliance, but it's not like you're planning out all your activities in foreseeable obvious reliance on a ruling by the IRS in that circumstance.

[00:10:08] Speaker 03:
ultimately did go through the 1625C procedure, right?

[00:10:12] Speaker 03:
It did.

[00:10:13] Speaker 03:
And then ultimately revoked that 1999 ruling letter.

[00:10:17] Speaker 03:
It did.

[00:10:18] Speaker 03:
In 2006.

[00:10:19] Speaker 03:
Correct.

[00:10:20] Speaker 03:
So to what extent does that impact this case?

[00:10:24] Speaker 04:
I don't think it does.

[00:10:25] Speaker 04:
It certainly shows that they're fully capable of following the procedure and should follow the procedure, but that, you know,

[00:10:34] Speaker 04:
That case doesn't impact this one.

[00:10:37] Speaker 04:
The fact that they ultimately got around to trying to follow 1625C doesn't really change the fact they didn't follow it.

[00:10:44] Speaker 04:
In this case, they revoked the ruling improperly and without notice and opportunity to be heard, very importantly.

[00:10:51] Speaker 04:
And then in the instance where they gave notice and an opportunity to be heard before they revoked it, they followed the procedure of 1625C.

[00:11:01] Speaker 04:
We don't have the same kind of problem in that case that we have here.

[00:11:04] Speaker 01:
Is it clear that the revocation applies or should apply, as you see it, equally to all the entries?

[00:11:12] Speaker 01:
That is to say that the lower classification that was ultimately adopted, if you could protest, if you had the assets to protest, it would be a lay down hand.

[00:11:25] Speaker 01:
That you would simply walk in and say, here's the previous ruling and you've revoked.

[00:11:32] Speaker 01:
We're done.

[00:11:33] Speaker 04:
Absolutely.

[00:11:33] Speaker 01:
In fact, in ICP-4... Is there anything about the state of the liquidation of the different entries that makes that a more difficult inquiry, or would the state of the liquidations such that if you could get into court, you would have a summary judgment in effect entered the next day?

[00:11:55] Speaker 04:
Yes, we would, Your Honor.

[00:11:56] Speaker 04:
And in fact, in ICP-4, the case where we won based on one entry, we didn't actually have a sample of that one entry.

[00:12:02] Speaker 04:
The way we proved that that one entry conformed with the ruling was to put evidence of all the entries of white sauce and say they all conformed to the ruling and by, you know, circumstantial inference, this entry also conformed.

[00:12:15] Speaker 01:
And there's never been any suggestion that the different entries are different, consist of different products?

[00:12:21] Speaker 04:
No, not the slightest evidence or suggestion of that ever by the government.

[00:12:25] Speaker 04:
That certainly wasn't the case.

[00:12:27] Speaker 02:
Mr. Weldon, to your rebuttal time.

[00:12:29] Speaker 04:
Oh, I am.

[00:12:30] Speaker 04:
Thank you, Your Honor.

[00:12:31] Speaker 02:
Mr. Blakes.

[00:12:38] Speaker 05:
Good morning, Your Honors.

[00:12:38] Speaker 05:
May the police report.

[00:12:40] Speaker 05:
This is not a case of constitutional dimension, as has been discussed by Appellant's counsel.

[00:12:49] Speaker 05:
He brings up the fact that this is a case of first impression, suggesting that this is not a circumstance that somehow has been implied

[00:12:59] Speaker 05:
that customs lays in wait for unsuspecting importers.

[00:13:03] Speaker 01:
Before you get into the merits of the constitutional argument, let me ask you the same question I asked your opposing counsel, which is if they did have the money to come up with the, they could pony up with however much they would have to put down in order to get this case into the posture of a judicial challenge.

[00:13:24] Speaker 01:
What would your defense be?

[00:13:27] Speaker 05:
At this point, I believe we would not have a defense.

[00:13:31] Speaker 01:
So you basically, what you've got here seems to me, correct me if this is not a fair characterization, is you've got a case in which you would lose if they could get into court, but they can't get into court because they can't pay, in a sense, the entry fee.

[00:13:50] Speaker 01:
Is that a fair statement?

[00:13:51] Speaker 01:
Yes, it is, Your Honor, and if the court will indulge me... Why would this then not be the kind of case, for example,

[00:13:57] Speaker 01:
that the decision, a decision under say, what is it, 1515D, a discretionary decision to reconsider the duty rate would not be, there wouldn't be a compelling argument in favor of that disposition.

[00:14:20] Speaker 05:
And if the court will indulge me for just a few minutes, I'd like to walk through

[00:14:24] Speaker 01:
Sure, but ultimately, I'd like you to address the 1515D question.

[00:14:29] Speaker 05:
Right, and actually, I think it's 1515D is important, so it's 1501, which is the volume that customers can voluntarily reliquidate.

[00:14:41] Speaker 05:
But there are time limits, and there are 100 entries that are affected by these circumstances.

[00:14:52] Speaker 05:
I can dispose of two of them quickly.

[00:14:54] Speaker 05:
Two of the entries don't count here really.

[00:14:58] Speaker 05:
One, because it was not protested at all.

[00:15:00] Speaker 05:
And one, because when it was protested, the protest was untimely and rejected and that was the end of those two.

[00:15:05] Speaker 05:
So there are 98 left.

[00:15:08] Speaker 05:
ICP-4, which has been brought up in the determination by the trial court, affirmed by this court, that Customs had failed to follow 1625C, rendered the

[00:15:22] Speaker 05:
notice of action invalid.

[00:15:25] Speaker 05:
And ICP-4 involved one entry that ICP protested, paid the duties, and brought the court challenge.

[00:15:36] Speaker 05:
And as we've been discussing, one.

[00:15:39] Speaker 05:
About three months after ICP-4 was initially commenced, ICP protested

[00:15:51] Speaker 05:
In a series of protests, not on the same day, but starting about November 29th or 2 days, ICP-4 was filed August 28th, 2008.

[00:16:00] Speaker 05:
By the end of November, into December, into the next year, ICP protested 84 other entries.

[00:16:09] Speaker 05:
Those 84 other entries were suspended pending the outcome of ICP-4.

[00:16:15] Speaker 05:
The 13 entries we have at issue in this case,

[00:16:18] Speaker 05:
were protested the day after ICP-4 was first filed.

[00:16:24] Speaker 05:
Three months later, near the end of November, before ICP started filing the other protests, Customs denied that protest.

[00:16:34] Speaker 05:
Under 1501 and 1515D, there was an opportunity, a 90-day window in which ICP could have come back and either asked Customs to voluntarily

[00:16:47] Speaker 05:
reliquidate or suspend the suspension, or under 1515D, void the denial of the protest.

[00:16:54] Speaker 01:
Now, is that window, that 90-day window statutory or regulatory?

[00:16:57] Speaker 01:
Regulatory.

[00:16:58] Speaker 01:
It's regulatory.

[00:16:59] Speaker 05:
Oh, I'm sorry.

[00:17:00] Speaker 05:
Statutory.

[00:17:00] Speaker 01:
1501 and 1515D.

[00:17:01] Speaker 01:
1501 and 1515.

[00:17:02] Speaker 01:
All right.

[00:17:04] Speaker 05:
Yes.

[00:17:04] Speaker 05:
Now, what's important here is that when ICP filed the protest that involved the 13 entries we're dealing with here, the day after ICP-4 was filed in court,

[00:17:16] Speaker 05:
ICP didn't alert customs that this protest was related to the cause of action in ICP-4.

[00:17:24] Speaker 05:
It didn't alert customs at any point during the next three months while ICP was considering the protest and ultimately denied it.

[00:17:32] Speaker 05:
After customs denied the protest, ICP did not alert customs to the fact that, oh, that protest is just like the other ones that have been suspended.

[00:17:43] Speaker 05:
It's related to what's going on in ICP-4.

[00:17:46] Speaker 05:
It didn't do anything within the statutory 90-day window to ask customs or to make a motion, a request under 1515D for the process to be voided.

[00:17:58] Speaker 05:
It eventually became final and conclusive under 1514 and customs was left with nothing else to do.

[00:18:08] Speaker 05:
So what remained to ICP, there were plenty of opportunities for ICP to get itself out of this situation.

[00:18:15] Speaker 05:
But at that point, once the time had run, the only thing left for ICP to do was to bring a 1581 challenge in the Court of International Trade.

[00:18:26] Speaker 05:
Then we get to 2637 and the requirement that in order to do that, you have to pay the duties first.

[00:18:33] Speaker 05:
That's a requirement, long-standing requirement as is discussed in our recent trial court's decisions and previously in some of this court's decisions.

[00:18:42] Speaker 05:
That's a situation that has always been part of the customs process in this country.

[00:18:48] Speaker 05:
It has consistently been recognized as a valid condition of the waiver of sovereign immunity, as has been discussed previously this morning.

[00:18:59] Speaker 05:
Importers do not have a substantive right to import, a substantive due process right to import.

[00:19:08] Speaker 05:
importation is subject to the terms and conditions placed upon importation by the government.

[00:19:13] Speaker 01:
Well, I don't know that that's ICP's argument today that there's a right to import.

[00:19:19] Speaker 01:
It's a right that attaches, as I understand their argument, to the advance ruling so that when they rely on that they are relying potentially to their prejudice in the way that they

[00:19:36] Speaker 01:
work out their business if customs without due process revokes the ruling on which they rely.

[00:19:46] Speaker 01:
So it's not quite the same as saying we have a right to import that's saying we have a right to rely on a determination which is made by customs and a right to rely on that unless the proper procedures are followed.

[00:20:04] Speaker 05:
To the extent that's a distinction from what they're arguing, as I understand it, and that is that they're claiming their due process rights failed when they can't come up with the money to make the 2630 statute.

[00:20:18] Speaker 01:
Oh, that's right.

[00:20:19] Speaker 01:
That's where the problem arose.

[00:20:22] Speaker 01:
But they're saying the reason they have a due process right, as I understand them, is because they have a property right in the ruling, as opposed to a property right to import.

[00:20:33] Speaker 01:
I mean, I don't have a property right

[00:20:35] Speaker 01:
to a job as a teacher.

[00:20:37] Speaker 01:
But once I have a job as a teacher, I have a property right to have, if I have tenure, I have a property right to have the due process procedures for firing me.

[00:20:51] Speaker 05:
I'm sorry.

[00:20:52] Speaker 05:
And here, as again has been discussed, an importer also does not have a substantive due process right to any particular classification or rate of duty.

[00:21:02] Speaker 05:
And so, yes, there is a process by which an importer can come in and ask customs for an advance ruling.

[00:21:10] Speaker 05:
Perhaps even less onerous on the importer than Your Honor's previous example about the tax case because in the tax case you actually, the IRS essentially knows all of the facts and maybe makes a mistake in its judgment.

[00:21:24] Speaker 05:
Here, the advance ruling is based upon ICP's description of the product.

[00:21:31] Speaker 05:
It is always

[00:21:32] Speaker 05:
customs responsibility duty to when a product actually comes in, it can examine the product and see whether the product actually fits the description that was addressed in the advance ruling.

[00:21:47] Speaker 05:
Now, I realize we've already been through the 1625 processes in ICP-4, and I know what the rulings are there.

[00:21:55] Speaker 05:
But as a matter of fact, if the product that's being imported, when customs looks at it,

[00:22:00] Speaker 05:
customs believes does not match the product described for which the advance ruling applies.

[00:22:09] Speaker 05:
There is no prohibition on customs saying, no, that's not a proper ruling.

[00:22:15] Speaker 05:
And the proper classification of this product is something else.

[00:22:19] Speaker 05:
And then there is the process, the protest process, the 1581A process, in order to challenge that classification if you want to.

[00:22:28] Speaker 05:
which ICP has done in yet another case after this one.

[00:22:34] Speaker 05:
And so the fact that an importer has no substantive due process right to a particular ruling indicates that the ruling itself doesn't give them a property interest.

[00:22:48] Speaker 05:
It's simply an advanced ruling suggesting what the classification will be if the product that's imported actually matches the product that the ruling applies to.

[00:22:57] Speaker 01:
This may cover ground that you've already covered.

[00:23:01] Speaker 01:
So you can short-circuit it if it does.

[00:23:02] Speaker 01:
But if you had been in the position of trying to tell ICP what to do at the time, way back when, in 2007, 2008, when these entries were being made, and you knew that your client did not have the money to file the requisite duties, what would the course of action

[00:23:27] Speaker 01:
that you would have recommended, Ben, if you also knew that it had already either been adjudicated or that you had a very high likelihood of winning on the claim that the revocation of the advance ruling was invalid?

[00:23:44] Speaker 05:
Knowing what we know, which of course is not, presumably not everything that was affecting ICP at the time, I would have, and not to second guess counsel and say, but

[00:23:57] Speaker 05:
I would have gotten to ICP-4 in ICP-1.

[00:24:03] Speaker 05:
I would have explained that in order to make this challenge, you need to bring an action under Section 1581A.

[00:24:12] Speaker 05:
And in order to do that, you're going to have to be able to pay the duties.

[00:24:16] Speaker 05:
Now you said they can't pay the duties.

[00:24:17] Speaker 05:
Maybe they can't pay them on all of the entries.

[00:24:20] Speaker 05:
So they pay on one entry.

[00:24:21] Speaker 05:
They pay on one entry.

[00:24:22] Speaker 01:
They get the ruling that they ultimately got in ICP-4.

[00:24:25] Speaker 01:
But what I'm really trying to get at is if we have a scheme here which has an answer, it may be that the answer didn't emerge in this particular case because of a confluence of events.

[00:24:40] Speaker 01:
But if there is an answer, if there is a route to relieve, that makes the scheme at least less constitutionally suspect.

[00:24:48] Speaker 01:
If there is no possible route to relieve, then that places the burden more on

[00:24:54] Speaker 01:
the government to show why it's reasonable to effectively deprive people of an opportunity for judicial review.

[00:25:03] Speaker 01:
So is there a mechanism by which, let's say starting off with getting one entry, paying the duty on one entry, getting a ruling in your favor,

[00:25:16] Speaker 01:
Is there a way to adjudicate the rest of the entries without having to pay all of the duties on all of the other entries?

[00:25:23] Speaker 01:
And if so, what would it have been at that point?

[00:25:26] Speaker 01:
1501, 1515D, or what?

[00:25:29] Speaker 05:
Well, before we even get there, as what happened with the other 84 entries relative to ICP-4, they can be suspended.

[00:25:39] Speaker 05:
When they were protested, the protest

[00:25:43] Speaker 05:
were suspended by Customs because Customs was aware that those protests raised the same issue that was being raised in ICP-4.

[00:25:54] Speaker 05:
What happened here, the breakdown with respect to this particular protest and the 13 injuries involved, is that no one alerted Customs that this protest was related to ICP-4.

[00:26:10] Speaker 05:
ICP had done that, it most likely would have been suspended just like the other 84 entries.

[00:26:16] Speaker 05:
What happened to the 84 entries?

[00:26:18] Speaker 05:
They were ultimately liquidated at the lower rate as dictated by ICP 4, the ruling of the trial court in this court.

[00:26:26] Speaker 01:
And had there been a suspension of the 13, what would have been the procedural mechanism by which there would have been adjudication of the right rate?

[00:26:38] Speaker 05:
As with the other 84, they would have just, following the finality of ICP-4... Questions would have just said... Okay, we know what they should be liquidated at and we will liquidate them at the lower rate.

[00:26:51] Speaker 01:
But it's because these 13 were not suspended that they ultimately were liquidated, that that puts the case in a different posture as you see it.

[00:27:00] Speaker 05:
Right, they ultimately became final and conclusive at the administrative level.

[00:27:05] Speaker 05:
such that there wasn't anything else customs could do about it.

[00:27:08] Speaker 05:
ICP did eventually ask customs to suspend the protest in this liquidation, but it was well past the 90 days.

[00:27:16] Speaker 05:
The 90 days had run near the end of February.

[00:27:20] Speaker 05:
They didn't ask until May of 2008.

[00:27:23] Speaker 05:
And the other circumstance here was in ICP-4, ICP also asked the trial court in April of 2008.

[00:27:35] Speaker 05:
well after this protest had been adjudicated and become final at the administrative level.

[00:27:41] Speaker 05:
In April of 2008, ICP asked the trial court for a temporary restraining order and a preliminary injunction on all of the other entries, which would have included these 13.

[00:27:52] Speaker 05:
That was denied.

[00:27:54] Speaker 05:
The trial court correctly found that it didn't have jurisdiction over all of the other entries.

[00:27:58] Speaker 05:
Shortly after that, ICP asked Customs, would it be able to suspend

[00:28:05] Speaker 05:
the protest on these 13 entries.

[00:28:08] Speaker 05:
Customs, it's final.

[00:28:10] Speaker 05:
It's well past the window for asking us to do that.

[00:28:13] Speaker 05:
We have no statutory or regulatory authority to do that.

[00:28:17] Speaker 05:
ICP then commenced this case and that's where we are.

[00:28:23] Speaker 01:
One final question really quickly.

[00:28:26] Speaker 01:
If there were a new entry tomorrow, what rate would customs apply to it?

[00:28:30] Speaker 05:
The, if you will, the higher rate because as was previously mentioned, customs

[00:28:37] Speaker 05:
2005, Customs actually did do the 1625C process and changed the classification.

[00:28:44] Speaker 01:
Okay, so it has fixed the problem prospectively.

[00:28:50] Speaker 05:
Yes, that is in litigation right now.

[00:28:54] Speaker 01:
But for purposes of Customs position.

[00:28:58] Speaker 05:
New entries are subject to the new ruling.

[00:29:02] Speaker 03:
Is there anything in the record that explains what happened to the 84 entries and why

[00:29:07] Speaker 03:
And also, facts to establish that timing of these 13 entries, it wasn't properly lumped in with the 84?

[00:29:17] Speaker 05:
The record is, let me phrase it, as far as I know, the Joint Appendix is the entire record.

[00:29:27] Speaker 05:
And as Your Honor is probably aware, it is populated essentially with the filings with the

[00:29:35] Speaker 05:
because this was all decided on motions.

[00:29:39] Speaker 05:
The timeline is there.

[00:29:42] Speaker 05:
The timeline is in the Statement of Facts and Hour Brief.

[00:29:48] Speaker 05:
Page 10 identifies the four categories of entries that I mentioned, the two that don't really matter here.

[00:29:56] Speaker 05:
The one for ICP-4, the 13 in this case, and the other 84.

[00:30:02] Speaker 05:
Those other 84, there's

[00:30:05] Speaker 05:
As far as I know, there's nothing in the record about their subsequent reliquidation because that occurred after this case was finished at the trial court and there wasn't anything in the record.

[00:30:16] Speaker 05:
That is, so I think in terms of if you were looking, for example, for the customs documents that say these entries have been liquidated, that's not in the record.

[00:30:31] Speaker 05:
But the timeline is discussed.

[00:30:33] Speaker 05:
in most of the filings and in our brief.

[00:30:37] Speaker 02:
Thank you, Mr. Blades.

[00:30:38] Speaker 02:
As you can see, your time has expired.

[00:30:41] Speaker 02:
Mr. Tufo, we'll give you your full five minutes because we've had added time for Mr. Blades.

[00:30:48] Speaker 02:
Thank you so much.

[00:30:50] Speaker 04:
Okay.

[00:30:50] Speaker 04:
So I want to direct first, directly at this issue of, well, gosh, if they'd only asked us to suspend the entries, they could have solved all their problems.

[00:30:59] Speaker 04:
We didn't specifically ask for suspension of the 84 entries.

[00:31:03] Speaker 04:
They knew darn well because of everything ICP did, they were far from sitting on their hands and sitting on their rights.

[00:31:11] Speaker 04:
They were making as loud a noise as possible that they were protesting and not happy with the way the customs was handling their entries of white sauce.

[00:31:20] Speaker 04:
They knew darn well that it was related to this case.

[00:31:23] Speaker 04:
They shouldn't have needed some special notification

[00:31:26] Speaker 04:
from the importer that it's related to the same white sauce, same importer as all the other cases.

[00:31:34] Speaker 04:
So the other thing is, I think they're wrong on the law.

[00:31:37] Speaker 04:
1515D doesn't put a time limit on when customs can void a denial of a protest.

[00:31:44] Speaker 04:
The time limit they're talking about in 1501, I believe, points to something else.

[00:31:48] Speaker 04:
I wish I had the statutes right in front of me to tell you more on that.

[00:31:51] Speaker 04:
I didn't quite realize that was going to be as big an issue as it is here.

[00:31:55] Speaker 04:
And in addition, of course, the government could refuse to suspend.

[00:31:59] Speaker 04:
So that's hardly much of a strong remedy.

[00:32:02] Speaker 04:
They were kind enough to suspend 84 entries.

[00:32:05] Speaker 04:
Thank you.

[00:32:06] Speaker 04:
But 13, inexplicably, they did not.

[00:32:09] Speaker 04:
Their only explanation for why they didn't is, oh, gosh, you didn't tell us.

[00:32:12] Speaker 04:
You wanted those suspended too.

[00:32:13] Speaker 04:
And that's pretty outrageous.

[00:32:16] Speaker 04:
They were notified six ways Sunday that ICP had problems with this.

[00:32:21] Speaker 04:
There's no formal procedure ICP could have invoked to more

[00:32:24] Speaker 04:
loudly proclaimed how upset it was.

[00:32:27] Speaker 04:
They'd already been told by a court by that time that what they'd done was in contradiction of a binding advanced ruling.

[00:32:35] Speaker 04:
This court had overturned that ruling, but only on jurisdictional grounds.

[00:32:38] Speaker 04:
The writing was on the wall.

[00:32:40] Speaker 04:
They had every reason to know and didn't give any relief in respect to the 13 entries.

[00:32:51] Speaker 04:
So that leaves importers where we were and where we are, which is the government can, in the future, flagrantly disregard 1625C without any warning, without notice, an opportunity to be heard.

[00:33:08] Speaker 04:
They can effectively revoke an importer's ruling.

[00:33:14] Speaker 04:
And unless an importer has enough money to pay all the relevant entries,

[00:33:19] Speaker 04:
you can't get complete relief from that action.

[00:33:22] Speaker 04:
Under the statutory scheme, it all works together as applied.

[00:33:26] Speaker 04:
There's no route.

[00:33:27] Speaker 04:
There's no way to guarantee relief.

[00:33:30] Speaker 04:
You can rely on the government's good graces, potentially, to voluntarily suspend the entries, but that doesn't really satisfy the requirements of the Fifth Amendment, in my opinion.

[00:33:43] Speaker 04:
You have to have a right to an opportunity to notice, an opportunity to be heard, and

[00:33:48] Speaker 04:
a statutory scheme that does not give parties a clear path to relief is inadequate under the Fifth Amendment.

[00:33:56] Speaker 04:
It's not a simple matter of, well, the government gets to define the terms under which it consents to be sued.

[00:34:04] Speaker 04:
The Fifth Amendment says otherwise.

[00:34:05] Speaker 04:
The Fifth Amendment says the government shall not deprive you right to property without due process.

[00:34:14] Speaker 04:
self-effectuating.

[00:34:15] Speaker 04:
If the statutory scheme fails to effectuate that, it's up to the court to effectuate that.

[00:34:21] Speaker 04:
And Congress wasn't free to design a statutory scheme that really leaves an importer at the mercy of customs in whether they do or don't follow notice and comment procedures like 1625C.

[00:34:33] Speaker 04:
So for all the reasons we indicated in the brief, if there are no other questions, Your Honors, we ask that this court reverse and remand

[00:34:43] Speaker 04:
to the Court of International Trade to reinstate the complaint on the grounds that there is jurisdiction under 1581 I to hear ICP's claims because there has to be jurisdiction somewhere to hear a claim of denial of our right to due process without notice and opportunity to be heard.

[00:35:02] Speaker 02:
Thank you.