[00:00:32] Speaker 04: Okay, our final case this morning is number 18-12-82, Edwin Hymer Group versus United States. [00:00:41] Speaker 04: Mr. Peterson. [00:00:42] Speaker 03: Good morning, Your Honor. [00:00:44] Speaker 03: In more than 200 years of customs jurisprudence, the courts have heard thousands of cases involving denied protests. [00:00:52] Speaker 03: I believe this is the first case that involves an approval. [00:00:56] Speaker 03: But in this case, our client... Yes, Your Honor. [00:01:00] Speaker 05: Let me ask you this question. [00:01:01] Speaker 05: What's the status right now of the protest? [00:01:05] Speaker 03: It is allowed or approved, and it is suspended. [00:01:10] Speaker 03: The allowance of the protest has not been rescinded. [00:01:13] Speaker 03: Okay, it's suspended. [00:01:15] Speaker 03: It's suspended, which is not illegal. [00:01:17] Speaker 05: You have not received a refund? [00:01:19] Speaker 05: No. [00:01:19] Speaker 05: Okay. [00:01:20] Speaker 05: And you have not received a letter of denial? [00:01:22] Speaker 03: No. [00:01:24] Speaker 03: It's suspended. [00:01:25] Speaker 03: It is allowed. [00:01:26] Speaker 03: It was approved. [00:01:27] Speaker 03: And in fact, we received, even though it's not necessary, we and the broker received a mailed notice of the approval of the protest. [00:01:37] Speaker 05: But it is suspended, correct? [00:01:39] Speaker 03: It is. [00:01:40] Speaker 05: Suspended. [00:01:42] Speaker 05: It hasn't been paid. [00:01:43] Speaker 05: I mean, that's the problem. [00:01:44] Speaker 05: It hasn't been paid and it hasn't been denied. [00:01:47] Speaker 05: It hasn't been paid. [00:01:48] Speaker 05: You're waiting for money right now. [00:01:50] Speaker 05: That's right. [00:01:51] Speaker 05: But right now, you could also get a denial. [00:01:54] Speaker 05: I have not. [00:01:56] Speaker 05: But you could. [00:01:56] Speaker 05: To what end? [00:02:01] Speaker 05: Well, to this end. [00:02:01] Speaker 05: I just wonder whether this court has jurisdiction to be here in this case. [00:02:06] Speaker 05: Well, yes, it does, Your Honor, because... And especially under 1581i. [00:02:10] Speaker 05: Why? [00:02:11] Speaker 03: Well, I think the Court of International Trade went into that in great detail. [00:02:16] Speaker 03: The import specialist here made a decision on the merits. [00:02:20] Speaker 03: It's presumed to be correct. [00:02:21] Speaker 03: It's entitled to a presumption of regularity, and it [00:02:24] Speaker 03: It's not reviewable on the merits by a court. [00:02:28] Speaker 05: The CIT has jurisdiction over... If you could get in the mail a letter that says your protest is denied, then you could bring a case against the government at that point, correct? [00:02:42] Speaker 03: But that would be a denial? [00:02:43] Speaker 03: Of a protest. [00:02:44] Speaker 03: Right, but we don't have that. [00:02:46] Speaker 03: We have an allowance. [00:02:47] Speaker 05: Right now, you don't have a denial of a protest, nor have you gotten your money. [00:02:52] Speaker 03: No, but what I do have is I have an allowance of a protest, which is a statutory action in section 515. [00:02:58] Speaker 03: It says the customs shall review a protest and either allow or deny it. [00:03:05] Speaker 03: Now they allowed it, fine. [00:03:07] Speaker 03: And then the statute, it's binary. [00:03:09] Speaker 03: It says if you allow it, refund the money. [00:03:12] Speaker 05: There's a dispute here whether it's been allowed or denied. [00:03:15] Speaker 03: There is no dispute, Your Honor, at all. [00:03:18] Speaker 05: You're claiming that it was allowed. [00:03:20] Speaker 05: It has been allowed, and in fact... Yet you haven't gotten a refund. [00:03:24] Speaker 05: That's correct. [00:03:25] Speaker 05: And you could get a letter tomorrow from Customs saying, deny it. [00:03:28] Speaker 03: No, I could not. [00:03:30] Speaker 03: And the reason for that is Section 515D of the Tariff Act, which was enacted back in 93. [00:03:37] Speaker 03: Prior to that, the decision on a protest was final. [00:03:42] Speaker 03: Customs had no power to change an approval or a denial. [00:03:45] Speaker 03: In 1993, Congress added Section 515D. [00:03:49] Speaker 04: When a protest is... [00:03:50] Speaker 04: But in suspended state, after that happens, there can be a denial of the protest, right? [00:03:58] Speaker 03: No, there cannot, Your Honor. [00:04:00] Speaker 03: Suspension is simply not a statutory or a regulatory term. [00:04:06] Speaker 05: It was suspended because everybody, yourself included, were waiting the outcome of another case. [00:04:13] Speaker 03: The government elected not to wait. [00:04:16] Speaker 03: And that's their prerogative. [00:04:17] Speaker 03: It's not the first protest that's been allowed for this point. [00:04:20] Speaker 05: That's why it's pending. [00:04:22] Speaker 05: That's why it was suspended. [00:04:24] Speaker 05: Because there was another case and everyone was waiting to see how that case came out in order to make a decision on your case. [00:04:32] Speaker 03: Well, you don't have to wait because the fact of the matter is... I'm saying that's what happened in this case. [00:04:39] Speaker 03: Well, in this case, there was a case on related issues. [00:04:43] Speaker 03: We asked as a matter of administrative convenience that the government postpone its protest decision. [00:04:49] Speaker 05: But in this case, they didn't. [00:04:50] Speaker 05: So it's pending. [00:04:52] Speaker 05: You asked the government to suspend its protest decision, waiting for the outcome of the other case. [00:04:58] Speaker 05: The other case has already been decided. [00:05:01] Speaker 05: But yet you have not received any notice or any decision as to how that outcome affects your case. [00:05:08] Speaker 03: It doesn't. [00:05:09] Speaker 05: So you're in limbo right now. [00:05:12] Speaker 03: No, I don't think I'm in limbo. [00:05:13] Speaker 03: I think what we have is a situation where customs exercised its power to allow protest and then simply said, we're not paying it. [00:05:23] Speaker 03: If they had paid, if they pay you tomorrow, you don't have a case. [00:05:28] Speaker 03: I would hope this court would order them to do that. [00:05:30] Speaker 03: Yes. [00:05:30] Speaker 05: No, but you're not answering the question, counsel. [00:05:32] Speaker 05: I'm not sure I understand. [00:05:33] Speaker 05: If you get paid tomorrow, then you can't protest. [00:05:37] Speaker 05: You can't challenge an allowance. [00:05:40] Speaker 05: I ignore what I want to. [00:05:41] Speaker 05: Right, but you can't. [00:05:43] Speaker 05: Well, what's happened in this case... And if you did, you'd have to do it under another statute, not 1581-I. [00:05:48] Speaker 05: I don't know why I would protest an allowance, Your Honor. [00:05:52] Speaker 05: Correct. [00:05:52] Speaker 05: So you waited to see... Let's wait. [00:05:56] Speaker 05: Let's put this on hold. [00:05:58] Speaker 05: Let's see what's going to happen with the test case. [00:06:00] Speaker 05: You're okay with that because you could come out good. [00:06:03] Speaker 03: The government, Your Honor, had a different view. [00:06:05] Speaker 03: Maybe they felt that the other case had nothing to do with this case. [00:06:08] Speaker 03: It's a different company. [00:06:10] Speaker 03: It's a different vehicle. [00:06:11] Speaker 05: It's a different process. [00:06:12] Speaker 05: The government agreed that your case was going to be suspended until they received the outcome of the other case. [00:06:20] Speaker 03: They apparently did not. [00:06:22] Speaker 03: Without waiting for the outcome of that case, the properly authorized import specialist allowed this protest, which he is within his right to do. [00:06:30] Speaker 03: And the courts do not have jurisdiction or power to review that decision. [00:06:35] Speaker 03: He made that decision on the merits. [00:06:37] Speaker 03: It's an informed decision. [00:06:38] Speaker 03: The appendix will show you that the protest had all the processes. [00:06:43] Speaker 04: Let me ask you a question. [00:06:44] Speaker 04: Sure. [00:06:45] Speaker 04: Let's assume that we agree with you, hypothetically, that there was an approval here. [00:06:51] Speaker 04: OK. [00:06:51] Speaker 04: OK? [00:06:53] Speaker 04: And why doesn't the agency, before the money is paid out, at least, have the authority to reconsider a decision that it thinks is wrong? [00:07:05] Speaker 03: Well, Section 1515D of the Tariff Act, which was enacted in 1993, was new. [00:07:13] Speaker 03: And it gave customs the power to set aside the denial of a protest in certain limited circumstances. [00:07:20] Speaker 03: But it was silent as to setting aside the allowance of a protest. [00:07:24] Speaker 04: OK, but your problem with that is that there's a whole slew of Supreme Court cases saying the fact that the statute gives authority in one circumstance but is silent in another circumstance [00:07:35] Speaker 04: doesn't mean that the second circumstance is not within the agency's authority. [00:07:43] Speaker 04: So putting that to one side, putting that statutory provision that you just referenced to one side, is there any doubt that the agency would have the authority to reconsider the approval before the payment? [00:07:57] Speaker 03: I do not believe they would because there are cases cited in our briefs which indicate, see they're claiming inherent authority. [00:08:04] Speaker 03: They haven't exercised any inherent authority. [00:08:06] Speaker 04: Well, maybe they have. [00:08:08] Speaker 04: We have cases saying that agencies have the inherent authority to reconsider. [00:08:12] Speaker 04: Why wouldn't this agency have the inherent authority to reconsider? [00:08:17] Speaker 03: Because in 200 years of customs jurisprudence, the law is very clear. [00:08:22] Speaker 03: 1515D says, you allow or deny. [00:08:26] Speaker 03: When you make a decision to allow, it then says thereafter, you refund any monies found to be due in excess. [00:08:32] Speaker 03: They made the first part of that decision. [00:08:34] Speaker 04: I don't think you're answering my question. [00:08:36] Speaker 04: Put aside the statutory provision that allows reconsideration of the denial of a protest. [00:08:42] Speaker 04: That doesn't exist just for the hypothetical. [00:08:46] Speaker 04: Wouldn't the agency have the authority to reconsider the approval of a protest, the grant of a protest? [00:08:53] Speaker 03: They have never done it in over 200 years. [00:08:56] Speaker 03: For what? [00:08:56] Speaker 03: Well, in the American Methil case, which we cited, [00:09:01] Speaker 03: The courts have held that an agency does not have inherent authority when Congress has spoken to the mechanism for rectifying mistake in actions. [00:09:10] Speaker 03: That was the American Methil Pest Congress. [00:09:12] Speaker 04: You're not accepting my hypothetical. [00:09:13] Speaker 04: I'm asking you to put that other statutory provision aside. [00:09:17] Speaker 04: If that didn't exist, isn't it clear that the agency would have the authority to reconsider before the money was paid? [00:09:24] Speaker 03: I don't believe so. [00:09:25] Speaker 03: The problem, well, because what happens if the refund is paid? [00:09:30] Speaker 04: If you take them... You're not accepting my hypothetical. [00:09:33] Speaker 04: My hypothetical is before the refund is paid, wouldn't they have the authority to reconsider? [00:09:41] Speaker 03: There's nothing in the statute suggesting that. [00:09:43] Speaker 03: And they have not reconsidered here, which is important. [00:09:48] Speaker 03: Anything else? [00:09:49] Speaker 03: Any other reason? [00:09:52] Speaker 03: Well, because as far as why they would not have the inherent authority? [00:09:58] Speaker 03: Well, if you take a look at Section 515D, which speaks to... I asked you to put that aside. [00:10:04] Speaker 03: All right. [00:10:04] Speaker 03: I mean, you know, well, there's a fundamental flaw in the lower court's reasoning. [00:10:09] Speaker 03: The court said that the act of reliquidation was an essential part of granting a protest. [00:10:15] Speaker 03: It's not. [00:10:15] Speaker 04: It's a different argument. [00:10:16] Speaker 04: It's a different argument. [00:10:17] Speaker 03: OK. [00:10:19] Speaker 03: Well, Your Honor, if the government has inherent authority to undo a protest once it's been allowed, what's the limit to that? [00:10:29] Speaker 03: Can they come back and say, you know, we allowed your protest five years ago. [00:10:32] Speaker 03: We paid you your money. [00:10:34] Speaker 03: Your Honor, payment is a ministerial act. [00:10:40] Speaker 03: It's a statutory requirement once the protest has been allowed. [00:10:47] Speaker 00: So if the agency makes a mistake in choosing to approve, allow a protest, whatever word you want to use, [00:10:55] Speaker 00: realizes maybe it misread your form, misread your protest, and then realizes, oh, we've made a terrible mistake. [00:11:04] Speaker 00: We need further consideration of this. [00:11:06] Speaker 00: I guess it's your view that having checked that box, that's it. [00:11:12] Speaker 00: There's no more discretion, no more evaluation. [00:11:16] Speaker 00: The calculation of whatever refund according to that protest must be done, and then [00:11:25] Speaker 00: then there must be a refund actually paid. [00:11:27] Speaker 03: Is that your view? [00:11:29] Speaker 03: Yes, your honor. [00:11:29] Speaker 03: I think there has to be a finality of administrative action. [00:11:34] Speaker 03: I think there has to be repose. [00:11:37] Speaker 03: A few years ago in the Hitachi case, the court held that Customs has unlimited time to consider a protest. [00:11:45] Speaker 03: I think Judge Rada in his dissent noted that. [00:11:47] Speaker 03: They've got all the time they want to get it right. [00:11:49] Speaker 03: Now, in this case, they have not proven, they have not alleged any mistake [00:11:55] Speaker 03: Nobody ever said that the import specialist got it wrong. [00:11:59] Speaker 03: Nor is it before this court any record on which you could conclude that the import specialist got it wrong. [00:12:06] Speaker 03: Because what we have is an allowance of a protest. [00:12:11] Speaker 03: All I'm asking for under the Administrative Procedure Act is that you compel the Ministerial Act, which follows that, which is to refund the money. [00:12:20] Speaker 03: What the government is asking you to do is to say, well, they get a second chance. [00:12:25] Speaker 03: And if that was the possibility, speaking to your hypothetical, Judge Dyck, why would the government, when they approve a protest, not sit on it for a long time and say, we're not going to pay the money? [00:12:37] Speaker 03: Because who knows? [00:12:37] Speaker 03: Two or three years from now, a case may come by with a different result, and we won't pay. [00:12:43] Speaker 03: And that's the problem, Your Honor. [00:12:44] Speaker 05: At that point, and they don't pay, now you can bring a challenge under 1515 and challenge the denial. [00:12:54] Speaker 03: Well, no, that's exactly what's happened here. [00:12:56] Speaker 03: They approved, they didn't pay. [00:12:58] Speaker 05: But there hasn't been no denial. [00:12:59] Speaker 05: Pardon? [00:13:00] Speaker 05: There is no denial. [00:13:02] Speaker 03: If they issue a denial, that's a different case, but they haven't. [00:13:06] Speaker 03: Right, it's a different case. [00:13:07] Speaker 03: We have finality. [00:13:09] Speaker 03: Right, but nothing in 515 says that once Customs has, well, what 515 says is once Customs issues a decision on a protest, allowance or denial, [00:13:22] Speaker 03: Consequences follow. [00:13:23] Speaker 03: If you allow, refund the money. [00:13:25] Speaker 03: If you deny, send a notice. [00:13:28] Speaker 03: And 1515D says you can undo a denial in certain cases, but never in allows. [00:13:35] Speaker 03: If you hold otherwise, Your Honor, you break the system. [00:13:38] Speaker 05: And our precedent for a long time has been that you cannot use residual jurisdiction of the CIT in order to appeal a protest, a denial. [00:13:49] Speaker 03: Well, that's not what we're doing. [00:13:50] Speaker 03: We're not appealing the protest. [00:13:52] Speaker 03: All we're saying is that the protest was allowed and the record shows that this is an action to compel agency, agency action, unreasonably delayed or unlawfully denied under the Administrative Procedure Act. [00:14:05] Speaker 03: And this court has consistently held that you can bring an I jurisdiction case grounded in the APA, which is exactly what we've done here. [00:14:12] Speaker 03: It's no different than many other I cases, Your Honor. [00:14:16] Speaker 03: Not one. [00:14:16] Speaker 03: We're not, we're not asking for the protest decision. [00:14:20] Speaker 03: to be touched, it's been made. [00:14:22] Speaker 03: All we want is the ministerial thereafter part of 515D, which is pay the money. [00:14:28] Speaker 00: Is the ministerial part of paying the money necessarily following the allowance? [00:14:34] Speaker 00: Because as I understand the language of 1515A, it talks about after the duties, charge, or exactions found to be assessed shall be remitted or refunded. [00:14:50] Speaker 00: So to me, it sounds like there has to be a calculation done before the shell of the refund be kicking in. [00:14:57] Speaker 03: Well, this protest said all the money comes back, and the import specialist agreed with that. [00:15:02] Speaker 00: So the calculations... The interest has to be calculated, right? [00:15:04] Speaker 03: Yeah, but that's ministerial. [00:15:06] Speaker 00: That's ministerial. [00:15:07] Speaker 00: I guess the point is the refund hadn't truly been calculated at that point. [00:15:12] Speaker 03: I can tell you to the penny what it is. [00:15:14] Speaker 03: If I take a look at the entry papers, all the money comes back plus interest. [00:15:18] Speaker 03: And it's important, the lower court said that reliquidation was an essential part of the process. [00:15:23] Speaker 03: It's not. [00:15:24] Speaker 03: You could have a lot of protests, like an exclusion protest, with no reliquidation. [00:15:29] Speaker 03: Even when a protest results in a refund of money, you don't need reliquidation. [00:15:32] Speaker 03: The Swisher case in this court some years ago, on harbor taxes, about a billion dollars was paid back on protest without a reliquidation. [00:15:42] Speaker 03: Your Honor, as I've seen, I've used my time. [00:15:45] Speaker 03: I will give you two minutes. [00:15:46] Speaker 03: Thank you, Your Honor. [00:15:56] Speaker 02: Good morning. [00:15:56] Speaker 02: May it please the court. [00:15:58] Speaker 02: In this appeal, Erwin Hymer did not receive an allowed protest under 1515. [00:16:03] Speaker 02: The record shows that the protest was prematurely sent to Erwin Hymer. [00:16:11] Speaker 05: What's the status of the protest right now? [00:16:14] Speaker 02: The protest is now suspended. [00:16:16] Speaker 02: It's pending. [00:16:17] Speaker 05: It's pending. [00:16:18] Speaker 02: Yes. [00:16:18] Speaker 02: Customs cannot act on it. [00:16:20] Speaker 05: How can the CIT have jurisdiction over a pending protest under 1515? [00:16:25] Speaker 05: under this statute, under the residual jurisdiction statute. [00:16:28] Speaker 02: It was our position below that the court did not have jurisdiction, because we had argued that the true nature of plaintiff's or Irwin Hymer's case was that they were challenging whether customs allowed the protest. [00:16:44] Speaker 02: And our position was that if Irwin Hymer wanted jurisdiction, they should go ahead and file a request for accelerated disposition. [00:16:53] Speaker 02: then get a denial, and then challenge all of the information, all the decisions that rolled up into that denial. [00:17:00] Speaker 02: And that was our position below. [00:17:02] Speaker 04: What's your position here? [00:17:05] Speaker 02: It's the same position. [00:17:07] Speaker 04: But we didn't argue that in the brief. [00:17:08] Speaker 02: Because we prevailed. [00:17:11] Speaker 02: So we sort of indicated it at the end when we made a mention of accelerated disposition. [00:17:17] Speaker 02: We felt that it wouldn't be proper to raise jurisdiction because we succeeded. [00:17:24] Speaker 04: What happens internally in terms of these protests? [00:17:28] Speaker 04: There's a form which says approved, but it doesn't say allowed. [00:17:33] Speaker 04: Once the form is checked, what happens internally? [00:17:37] Speaker 04: Then is the protest forwarded to somebody to make the calculation? [00:17:44] Speaker 04: How does it work? [00:17:46] Speaker 02: Once the protest is sent to the import specialist or the review team, the import specialist reviews the protest [00:17:52] Speaker 02: And if the import specialist believes it should be allowed or approved, it makes a recommendation. [00:17:58] Speaker 02: And that recommendation is supposed to go to the supervisory import specialist, along with a computation of the duties owed. [00:18:05] Speaker 02: And that's the process. [00:18:07] Speaker 02: Then after that, if the supervisor... So what do we have? [00:18:09] Speaker 04: What's the form here? [00:18:10] Speaker 04: How does the form that we have here, check approved, fit into that process? [00:18:14] Speaker 02: It's sort of the first level of review. [00:18:17] Speaker 02: It's a recommendation to the second level, to the supervisor. [00:18:20] Speaker 04: Why is a recommendation to a second level supervisor then forwarded to the import? [00:18:27] Speaker 02: It was forwarded by mistake. [00:18:29] Speaker 02: It was forwarded inadvertently. [00:18:31] Speaker 02: It was supposed to actually go, as the record shows, there's a lot of communication about the missing. [00:18:36] Speaker 04: So what happens if a proper procedure, in your view, were followed? [00:18:39] Speaker 04: How is the importer notified? [00:18:42] Speaker 04: Does it get the same copy, the same form? [00:18:45] Speaker 02: Yes, the importer is notified. [00:18:47] Speaker 04: So the importer will just receive this form after the proper review has been completed that said it's true? [00:18:55] Speaker 02: The issue would be the timing. [00:18:56] Speaker 02: According to customs procedures, the entries are supposed to be set for reliquidation and then the form goes out. [00:19:03] Speaker 02: The form doesn't go out before the reliquidation. [00:19:06] Speaker 02: It's set for reliquidation and then the form goes out. [00:19:09] Speaker 04: So would the form then include the amount of the refund? [00:19:13] Speaker 02: The form does not include the amount of the refund. [00:19:15] Speaker 02: The importer would know that they received the refund when they got a notice of liquidation and received the money. [00:19:22] Speaker 04: So basically they get the money for it? [00:19:24] Speaker 02: Yes. [00:19:25] Speaker 04: Well, they get the form first that said approved, right? [00:19:29] Speaker 02: Well, we would hope that they get the money first or the money in the form would come close in time. [00:19:35] Speaker 02: The way the liquidation cycles work. [00:19:37] Speaker 04: But there are two separate mails, is what you're saying. [00:19:40] Speaker 04: One is that this form, after proper review, is forwarded to the importer, notifying the importer that the protest has been allowed. [00:19:51] Speaker 02: The entries are set for liquidation, and then the form is supposed to go out. [00:19:58] Speaker 02: So I don't know which would hit first, only because liquidations go on a two-week cycle, from what I've been told. [00:20:04] Speaker 04: So it's possible, I guess, in some instances you might get the form first, but they would know definitively that they had a refund, especially if they... But, regardless of which comes first, the normal process, the proper process, would be this particular form, checked approved, would be given to the importer, and then in a separate document there would be a check in the amount of the refund. [00:20:34] Speaker 02: Be it check or electronic, I think they might deposit them. [00:20:38] Speaker 00: And you're also saying that in the normal course, this form with the box approval checked would not be sent out and transmitted to the importer until after the reliquidation calculation occurred? [00:20:54] Speaker 00: Yes, after the reliquidation calculation. [00:20:56] Speaker 00: So here it was just a mistake, I guess, for number one. [00:21:00] Speaker 00: According to you, a supervisory import specialist needed to also approve it, not just import specialist Fawaz. [00:21:08] Speaker 00: And then in addition to that, another mistake occurred, which was this form went out before any reliquidation calculation occurred. [00:21:19] Speaker 00: So there's all kinds of mistakes going on here. [00:21:22] Speaker 04: And your argument is that you are entitled to correct the mistake. [00:21:29] Speaker 02: Yes, we are entitled to correct. [00:21:31] Speaker 04: This can't be the first time this has happened. [00:21:34] Speaker 02: No, it isn't. [00:21:35] Speaker 02: This is the first time it's been challenged in court. [00:21:38] Speaker 02: But there are customs rulings where customs has advised importers that the approval that they have sent has been rescinded or revoked, whatever. [00:21:49] Speaker 00: As a result of a mistake. [00:21:50] Speaker 02: As a result of a mistake. [00:21:52] Speaker 00: Is there some kind of manual that explains all of this? [00:21:55] Speaker 00: There is. [00:21:56] Speaker 02: There is. [00:21:56] Speaker 02: And I'd like to take the court back just a little bit [00:21:59] Speaker 02: This case was brought under 1581-I. [00:22:02] Speaker 02: So in terms of like the facts that we were allowed to show, we're confined to the administrative record. [00:22:09] Speaker 02: So the emails are all we can rely on. [00:22:12] Speaker 02: But yes, there is a handbook out there. [00:22:13] Speaker 02: If this was brought under 1581-A, a lot of the facts underlying what happened here would have come out. [00:22:20] Speaker 04: What does the handbook say? [00:22:22] Speaker 02: The handbook, it's a protest, I think it's a protest review handbook. [00:22:28] Speaker 02: or something similar to that, but it discusses the processing of a protest from the time it enters, customs receives it until the end. [00:22:36] Speaker 04: Is that available online? [00:22:39] Speaker 02: It is. [00:22:40] Speaker 02: If you search the internet, it is available online. [00:22:42] Speaker 02: It's not disseminated by customs, but it is out there. [00:22:46] Speaker 02: Portions of it are redacted. [00:22:47] Speaker 02: It's really an internal document. [00:22:54] Speaker 02: The other thing I wanted to mention was that [00:22:57] Speaker 02: We just discussed the computation of duties. [00:23:00] Speaker 02: It's not a ministerial act. [00:23:02] Speaker 02: There's actually a computation. [00:23:04] Speaker 02: And in this case, it wouldn't simply be zero computation. [00:23:09] Speaker 02: Customs is required to give back interest. [00:23:11] Speaker 02: So there would be some sort of computation of the duties and interest if there's anything else owed on the money. [00:23:17] Speaker 02: The other thing I wanted to mention was that [00:23:24] Speaker 02: With respect to the inherent power to reconsider, our position is that customs does have the inherent power to reconsider up into reliquidation. [00:23:32] Speaker 02: At that point is when the importers or protestants duties, I mean rights attached. [00:23:38] Speaker 02: At that point, they have a concrete decision, they have an amount, and if they want to challenge all of the reasons for customs's decision, they can do that then. [00:23:47] Speaker 00: So you're saying if customs [00:23:49] Speaker 00: realizes that they made some kind of mistake after they have done the reliquidation calculation, customs would be stuck with that mistake? [00:23:57] Speaker 02: Yes, customs is stuck with that. [00:23:59] Speaker 02: That is the self-imposed rule because that's when the... But is that measured by the payment? [00:24:03] Speaker 04: I mean, can't reconsider after the payment is made? [00:24:06] Speaker 02: After, yes, after reliquidation, after the payment's made, there's no way... But reliquidation's not the same thing as payment, is it? [00:24:12] Speaker 02: It's reliquidation and refund. [00:24:14] Speaker 02: I think reliquidation is most likely [00:24:18] Speaker 02: the calculation and maybe some sort of computer. [00:24:21] Speaker 02: I always think of it together, reliquidation and refund. [00:24:25] Speaker 00: But as a matter of fact, they're two separate actions, right? [00:24:31] Speaker 00: Reliquidation is the calculation. [00:24:32] Speaker 01: Yes. [00:24:33] Speaker 00: We owe somebody $1.4 million. [00:24:35] Speaker 00: Yes, absolutely. [00:24:36] Speaker 00: Refund is the actual payment of $1.4 million. [00:24:39] Speaker 02: Yes, I agree. [00:24:40] Speaker 05: Yes. [00:24:42] Speaker 05: Reliquidation is an official [00:24:44] Speaker 05: term that signifies the closing of the customs transaction. [00:24:49] Speaker 05: So once you reliquitate, you don't really have another step that you go to, correct? [00:24:54] Speaker 05: I mean, the reliquidation is reliquidation. [00:24:58] Speaker 02: Right, reliquidation and then refund. [00:25:01] Speaker 05: In this case, is there a chance that the plaintiff could get a refund? [00:25:08] Speaker 02: Given the court's decision in a pleasurable way, it's unlikely. [00:25:13] Speaker 02: It's unlikely. [00:25:15] Speaker 02: It still does. [00:25:15] Speaker 05: Why then has this not been closed and the protest denied? [00:25:21] Speaker 02: Because they filed a case in the trial court. [00:25:24] Speaker 02: Once an importer files a case in the trial court, it divests customs of any jurisdiction to act on it. [00:25:31] Speaker 02: So I can't speak for customs, but given pleasure way, it's most likely that's the way the decision, the protest will be decided. [00:25:43] Speaker 00: So is there jurisdiction here or not in the government's view? [00:25:47] Speaker 02: Our position is no. [00:25:48] Speaker 02: There is no jurisdiction. [00:25:50] Speaker 02: The trial court sort of put the cart before the horse where the trial judge presumed that there was an allowance. [00:26:00] Speaker 02: And if there's an allowance, there's jurisdiction. [00:26:02] Speaker 02: And then if there's jurisdiction. [00:26:04] Speaker 00: Maybe the trial court has jurisdiction to determine whether, in fact, there was an allowance. [00:26:09] Speaker 00: Because if there was an allowance, [00:26:13] Speaker 00: and you weren't actually paying the refund with the allowance, then they would have some right of review on that. [00:26:24] Speaker 02: Agreed. [00:26:25] Speaker 02: Agreed. [00:26:26] Speaker 02: If it was found that there was an allowance and customs did not provide a refund, we would agree most likely there would be jurisdiction. [00:26:36] Speaker 05: There would be under 1550, not under 1581i. [00:26:40] Speaker 05: Then they're challenging the denial of the protest. [00:26:44] Speaker 02: If it's a denial, it's 1581A. [00:26:46] Speaker 02: Right. [00:26:46] Speaker 04: But if there was a... Suppose we were to say that there was no jurisdiction here. [00:26:53] Speaker 04: Yes. [00:26:54] Speaker 04: Because the ruling is suspended and there's no final decision on the protest. [00:27:02] Speaker 04: Does that mean that once there's denial of the [00:27:06] Speaker 04: protest based on this earlier decision, that they then can start a new proceeding and come up here again? [00:27:14] Speaker 02: Yes. [00:27:15] Speaker 02: If there's a denial, they do have a right to challenge the denial in the trade court. [00:27:24] Speaker 02: But then it would be a different posture. [00:27:27] Speaker 02: I think if we did that right here, we're on a record. [00:27:30] Speaker 02: If we denied it, they would have to actually go ahead and prove the merits. [00:27:35] Speaker 02: We're not here on the merits. [00:27:36] Speaker 02: So it would be sort of a different proceeding. [00:27:39] Speaker 04: Are you saying they wouldn't be able to raise their allowance argument? [00:27:42] Speaker 02: They could raise the allowance argument, but it would be de novo. [00:27:46] Speaker 02: So we would be able to look at, if they want to raise the allowance argument, they could. [00:27:50] Speaker 02: But we would actually look at the substance of the protest. [00:27:54] Speaker 02: In this action, we're not looking at the substance of the protest. [00:27:58] Speaker 04: The argument would be, if we say we don't have jurisdiction, it has to go back, the argument [00:28:03] Speaker 04: One argument would be the same argument that they're making now, that the protest had been allowed and that they should receive their money regardless of the merits of the protest, correct? [00:28:15] Speaker 02: Yes, they most likely would make that argument. [00:28:18] Speaker 04: And we could consider that? [00:28:21] Speaker 02: Yes, most likely you could consider that argument. [00:28:24] Speaker 02: It's made. [00:28:27] Speaker 02: But again, it would be a different case because we'd be litigating the substance. [00:28:34] Speaker 02: at least two issues, the allowance approval issue as well as the substance. [00:28:38] Speaker 02: And if the Erwin Hymer is entitled to the money that they want, then they should be able to prove it at the trial court if under 1581A. [00:28:49] Speaker 02: Here, there's really been no decision as to whether they're entitled to the money. [00:28:56] Speaker 02: This is sort of a mistake that's being, for lack of a better term, taken advantage of. [00:29:02] Speaker 02: Erwin Hyman is truly entitled to the duties. [00:29:06] Speaker 02: They can file accelerated disposition. [00:29:08] Speaker 00: If we were to dismiss the appeal hypothetically on the ground that there was just no final decision on the protest, the protest remains suspended. [00:29:20] Speaker 00: And we reach that conclusion necessarily because we determined that whatever was argued as being an allowance was never really an allowance or [00:29:31] Speaker 00: the customs was permitted to reconsider that allowance and then put the protest into suspension. [00:29:39] Speaker 00: And so therefore, there was no jurisdiction. [00:29:41] Speaker 00: We would have necessarily reached a conclusion about the merits of Erwin Hymer's allowance theory. [00:29:49] Speaker 00: And then would they be collaterally a stop from raising that after the denial eventually comes down the pike on the protest? [00:29:58] Speaker 02: Yes, if this court actually [00:30:01] Speaker 02: renders a decision on the issue of allowance under 1515, a legal decision, a legal issue, yes, they would be precluded just by virtue of this being an appellate court. [00:30:16] Speaker 05: But again, assuming hypothetically we find that there is no jurisdiction, then the plaintiffs can raise the same issue they brought to us before. [00:30:26] Speaker 05: They can raise it once they receive a denial if they get one. [00:30:29] Speaker 05: Yes. [00:30:31] Speaker 05: And then they have the day in court there. [00:30:33] Speaker 05: And there's nothing that's collaterally has stopped at that point, because we just never did have jurisdiction to begin with. [00:30:43] Speaker 02: I guess it really depends. [00:30:44] Speaker 02: If the court actually makes a determination, like a legal ruling, and interprets 1515, and then makes a decision that the court doesn't have jurisdiction. [00:30:54] Speaker 05: But we couldn't do that. [00:30:55] Speaker 05: I mean, if we have no jurisdiction, we can't make a ruling on 1515. [00:30:59] Speaker 05: We have jurisdiction and we don't. [00:31:02] Speaker 02: OK. [00:31:02] Speaker 02: So under those circumstances, yes, if this court found that there was no jurisdiction and an accelerated disposition was filed, there was a denial, then all the issues can be raised in an action. [00:31:21] Speaker 04: OK. [00:31:21] Speaker 04: All right. [00:31:22] Speaker 04: Thank you, Ms. [00:31:23] Speaker 04: Powell. [00:31:25] Speaker 02: Thank you. [00:31:27] Speaker 04: Mr. Peterson, we have two minutes. [00:31:29] Speaker 03: Thank you. [00:31:32] Speaker 03: Two points briefly. [00:31:33] Speaker 03: First of all, there seems to be a supposition that there's something wrong with this allowance on the merits. [00:31:39] Speaker 03: There's not. [00:31:40] Speaker 03: And the court, with all respect, does not allow to assume that there is. [00:31:44] Speaker 03: It's an allowed protest. [00:31:46] Speaker 03: There are allowed protests that occur in this country every day. [00:31:50] Speaker 03: And because they are allowed instead of denied, they never come before the courts. [00:31:55] Speaker 03: And that is also why the CIT had I jurisdiction here, because I was dealing with an allowed protest. [00:32:00] Speaker 03: Now, Judge Raina is correct where he says, you can't use I jurisdiction to get around something you could do with A jurisdiction. [00:32:09] Speaker 03: But A jurisdiction only deals with the denied protest. [00:32:12] Speaker 03: So I had no path to court through A. And if they were to come back and deny this protest and I filed a new protest, my first ground would be that the second decision is invalid because the first decision, this allowance governs. [00:32:25] Speaker 03: Very important, you can't assume there's anything wrong with what import specialist for WAD did. [00:32:30] Speaker 03: Nor can you assume that the Pleasure Way case changes that. [00:32:34] Speaker 03: Because in 1927, the Supreme Court in US versus Stone and Downer told us there's no race judicata in these cases. [00:32:42] Speaker 03: Every case stands along on its own facts. [00:32:45] Speaker 03: So regardless of what the decision was in Pleasure Way, it makes it neither more nor less likely that this decision was correct. [00:32:52] Speaker 03: This is rendered as just not judicially reviewable. [00:32:55] Speaker 03: And that's important. [00:32:57] Speaker 03: My second point is during her presentation, my learned colleagues started arguing that the term approved on the protest was like approved to go ahead to some supervisor. [00:33:09] Speaker 03: Well, there's nothing in the record about that. [00:33:11] Speaker 03: And in fact, if you take a look at paragraph 13 of their answer, they admit that the protest was allowed using the statutory language. [00:33:20] Speaker 03: Now they talk about the form. [00:33:22] Speaker 03: The form uses the word approved instead of allowed. [00:33:25] Speaker 03: But earlier this year, in a Tissenkrupp case, this court was called upon to interpret form language that didn't match the statutory choices. [00:33:34] Speaker 03: That was language that said, rejected as non-protestable. [00:33:38] Speaker 03: And the government took the position, oh, that means the protest is still pending. [00:33:43] Speaker 03: This court said, no, it means that protest was denied. [00:33:47] Speaker 03: So you breathed statutory meaning into that box on the form. [00:33:51] Speaker 03: And as the protest form stands now, the only box that doesn't have a statutory match is that approved box. [00:33:58] Speaker 03: And I think this court has to hold that that means allowed and this protest was allowed. [00:34:03] Speaker 03: Thank you. [00:34:03] Speaker 04: Thank you, Mr. Peterson. [00:34:05] Speaker 04: Thank you, Ms. [00:34:05] Speaker 04: Bell. [00:34:05] Speaker 04: The case is submitted. [00:34:06] Speaker 04: That concludes our session for this morning. [00:34:09] Speaker 04: Thank you.