[00:00:00] Speaker 04:
Emicals versus United States.

[00:00:34] Speaker 02:
Good afternoon, Your Honors.

[00:00:35] Speaker 02:
May it please the court?

[00:00:37] Speaker 02:
I'd like to take a moment to request to set up a demonstrative, if allowed, that I've provided.

[00:00:42] Speaker 04:
Did you provide us notice of this?

[00:00:44] Speaker 04:
I don't recall.

[00:00:45] Speaker 02:
I did, yes, Your Honor.

[00:00:46] Speaker 02:
I submitted a letter through the ECM for it.

[00:00:50] Speaker 04:
Are these materials that were in the appendix?

[00:00:53] Speaker 02:
They were in the appendix in a much more laid out form.

[00:00:56] Speaker 02:
They're in a more condensed form right now.

[00:00:58] Speaker 04:
Well, has the other side seen it?

[00:01:00] Speaker 02:
Yes, Your Honor.

[00:01:00] Speaker 02:
I have, and I've sent it over to the United States.

[00:01:03] Speaker 04:
Is there any objection to their using it?

[00:01:06] Speaker 02:
No.

[00:01:06] Speaker 02:
OK.

[00:01:06] Speaker 02:
Thank you, Your Honor.

[00:01:12] Speaker 04:
I'll warn you.

[00:01:13] Speaker 04:
Typically, we think demonstratives are a distraction rather than an assistance.

[00:01:17] Speaker 03:
This is a good lesson for you law school students.

[00:01:19] Speaker 03:
Don't use demonstratives.

[00:01:25] Speaker 03:
Maybe he'll convince us otherwise.

[00:01:35] Speaker 02:
I can proceed without it.

[00:01:38] Speaker 03:
I mean, this is just a case about whether you missed a deadline, right?

[00:01:41] Speaker 03:
To an end, Your Honor, that's correct.

[00:01:42] Speaker 03:
What do we need a demonstrative to know a timeline?

[00:01:45] Speaker 03:
You're not going to show us a product or something like that.

[00:01:48] Speaker 02:
No, Your Honor.

[00:01:49] Speaker 02:
The purpose of the demonstrative was throughout the CIT's decision and throughout a lot of the briefings that were done, the timeline of events isn't 100% clear.

[00:01:59] Speaker 02:
It's not?

[00:02:02] Speaker 03:
There was this thing you could request refunds of.

[00:02:04] Speaker 03:
Congress set a date certain that you had to do it by.

[00:02:07] Speaker 03:
You missed it by a number of months, and Customs said you were out.

[00:02:11] Speaker 03:
Well, that's correct, Your Honor.

[00:02:12] Speaker 03:
Our client did miss that.

[00:02:13] Speaker 02:
Are there any incorrect facts on that?

[00:02:16] Speaker 02:
There are not, Your Honor.

[00:02:17] Speaker 04:
So the issue is not that, but it's whether or not they could review it under 1581A, whatever the provision is, right?

[00:02:24] Speaker 02:
That's correct, Your Honor.

[00:02:26] Speaker 02:
And the whole purpose behind

[00:02:28] Speaker 02:
behind the 1581A argument was the 1514, 19 U.S.C.

[00:02:35] Speaker 02:
1514 permits for 180 days after a mistake of fact is found on liquidation, reliquidation, or a customs... Well, let me ask you about that.

[00:02:44] Speaker 04:
Sure.

[00:02:45] Speaker 04:
The statutory language of 1514A references a clerical error, a mistake of fact, right, or other inadvertence.

[00:02:52] Speaker 04:
Do you argue that the statute does not require the mistake to be by customs?

[00:02:58] Speaker 04:
Is your view that the mistake could be by either the importer or questions?

[00:03:02] Speaker 04:
It could be by either of the two.

[00:03:03] Speaker 04:
That's correct.

[00:03:04] Speaker 04:
Do you have any authority for that?

[00:03:06] Speaker 04:
Have been cases?

[00:03:07] Speaker 04:
Have we said that before?

[00:03:08] Speaker 02:
Well, the statute itself actually says that it can be done by an importer.

[00:03:11] Speaker 02:
If we turn to the language of the statute, I believe it's been... Okay.

[00:03:14] Speaker 04:
Did you cite it in your brief?

[00:03:16] Speaker 04:
I don't know.

[00:03:16] Speaker 02:
It is cited in the brief.

[00:03:17] Speaker 02:
It is also cited in the appendix, and I'm turning to it right now if you will.

[00:03:21] Speaker 02:
Give me one moment, please, Your Honor.

[00:03:25] Speaker 02:
Nine.

[00:03:27] Speaker 02:
Thank you, Your Honor.

[00:03:30] Speaker 02:
Was that the blue book at brief at nine?

[00:03:32] Speaker 01:
Thank you.

[00:03:41] Speaker 02:
Uh, yeah, so, uh, your honor, it does state that, um, the court, uh, that, uh, sorry, customs allows for, uh, reliquidations while still allowing corrections to be made after, in the time of the statute I was citing, it was 90 days.

[00:03:55] Speaker 02:
It is now 180 days, uh, made by the importer or by the custom service.

[00:04:00] Speaker 04:
Where are we on page nine?

[00:04:01] Speaker 04:
Pardon?

[00:04:02] Speaker 04:
Page nine, did you say?

[00:04:03] Speaker 01:
Yes.

[00:04:04] Speaker 02:
Yeah.

[00:04:07] Speaker 01:
You argue on nine that, that,

[00:04:09] Speaker 01:
Because 1514A allows for a protest to correct an error in the construction of law, even if that error was made by the importer, correct?

[00:04:22] Speaker 02:
That's correct, Your Honor, yes.

[00:04:23] Speaker 01:
Okay.

[00:04:24] Speaker 01:
So are you claiming that industrial chemicals misunderstood the statutory deadline?

[00:04:29] Speaker 02:
Well, Your Honor, actually there's... It's pretty clear, isn't it?

[00:04:31] Speaker 02:
Yes, sir, Your Honor.

[00:04:32] Speaker 02:
The statutory deadline is clear.

[00:04:34] Speaker 02:
However, our mistake of fact argument actually revolves between the relationship between industrial chemicals and their customs broker.

[00:04:42] Speaker 02:
Unfortunately, however, I do not believe that that's a merits question, which is not presently before the court.

[00:04:48] Speaker 02:
Before the court is the question of jurisdiction.

[00:04:50] Speaker 02:
Sure, A versus I. Absolutely, yes sir.

[00:04:55] Speaker 02:
And under A, A solely requires that there be... If you had timely done it, you could have done it under A.

[00:05:00] Speaker 02:
Yes, Your Honor, we could have done it under A. However, we believe... If you can do it under A, you can't do it under I, can you?

[00:05:07] Speaker 02:
No, sir.

[00:05:07] Speaker 02:
This Court has said that if A is available, then there is no point in pursuing under I. And we do believe, however, that there is still grounds to do it under A because of the way that the timing flowed in this proceeding.

[00:05:24] Speaker 02:
Because basically what ended up occurring is that GSP retroactive statute by customs...

[00:05:29] Speaker 01:
What customs have done?

[00:05:32] Speaker 01:
Is there any legal authority that says that customs can exempt importers from a specific congressional GSP request deadline?

[00:05:42] Speaker 02:
Sure, Your Honor, and that statutory provision is 1514, which calls for a mistake of fact, which as you point out is a congressionally authorized exception.

[00:05:51] Speaker 02:
that creates the basis for a protest.

[00:05:54] Speaker 02:
And in our case, once our client had realized that neither they nor the people that they believed were responsible for filing this and that mistake of fact had occurred, they actually had filed a protest right away, which Customs then in turn decided and made a decision to not review and just said that it was not properly filed.

[00:06:17] Speaker 04:
Well, that was right, right?

[00:06:19] Speaker 04:
Are you talking about what was filed after the statutory deadline had expired?

[00:06:24] Speaker 02:
Well, that's correct, Your Honor.

[00:06:25] Speaker 02:
It was filed late, and I understand that it was filed late.

[00:06:28] Speaker 02:
However, our client had then proposed forward a mistake of fact argument in its protest, which the Customs Service had decided not to review.

[00:06:38] Speaker 02:
Instead of folk... Would it be a mistake of fact to say, we thought we were right?

[00:06:43] Speaker 02:
I'm not sure I understand, Your Honor.

[00:06:45] Speaker 01:
Well, supposing you said,

[00:06:47] Speaker 01:
We thought that we could file it anytime we wanted to.

[00:06:52] Speaker 02:
No, Your Honor, that would not be the correct interpretation of the law.

[00:06:56] Speaker 03:
In this case, it's more of a... Is it a mistake of fact that you thought somebody else was going to file this for you?

[00:07:01] Speaker 03:
It could be, exactly.

[00:07:02] Speaker 03:
How is that a mistake of fact?

[00:07:04] Speaker 02:
Well, because the relationships between a customs importer and a customs broker is that the broker is supposed to do everything on behalf of the importer, and it's more of a

[00:07:16] Speaker 02:
quasi-agency relationship, and if that relationship exists and you- If that's true.

[00:07:21] Speaker 02:
Pardon?

[00:07:22] Speaker 02:
If that's true.

[00:07:23] Speaker 02:
If that's true, it precludes us from the clerical error argument, but not- But if it's true, it also, if indeed, they are in fact a fiduciary, then you have a cause of action against the broker, no?

[00:07:35] Speaker 02:
Your Honor, I believe that that's an issue aside from the court at hand right now, whether or not our client has a claim against their broker.

[00:07:44] Speaker 02:
And that's also why I chose to use the term quasi-fiduciary, because it's not quite a fiduciary duty.

[00:07:50] Speaker 02:
I mean, as anybody who practices customs understands, I mean, unfortunately, the nature of a customs broker's relationship with their client is actually- You're pointing the finger at your broker now, but suppose you had a hypothetical where you didn't have a broker, and you just blew the deadline.

[00:08:05] Speaker 03:
And your mistake of fact was, oh, well, we forgot to write down the deadline.

[00:08:09] Speaker 03:
Is that a legitimate mistake of fact?

[00:08:10] Speaker 03:
I think that would be a stretch, Your Honor.

[00:08:12] Speaker 03:
Well, aren't you bound by the actions of your broker?

[00:08:15] Speaker 03:
I mean, they did the same thing.

[00:08:17] Speaker 02:
Right.

[00:08:18] Speaker 02:
And exactly, Your Honor, they did do exactly the same thing.

[00:08:20] Speaker 03:
And that's where we believe that there's a... Well, if you can't raise it independently, then how can you raise it because your representative, who you're relying on, made the same mistake?

[00:08:28] Speaker 02:
Well, as we actually pled in our complaint, the problem was that our representative believed they had made the mistake of fact thinking that Industrial Chemicals was going to file it while Industrial Chemicals believed that it was their broker that was going to file it.

[00:08:41] Speaker 02:
And this was not discovered until afterwards when Industrial Chemicals had made the art statement that... What mystifies me is how this is customs problem.

[00:08:51] Speaker 02:
Well, it's customs' problem to an end because customs is supposed to review a discussion of mistake of fact.

[00:08:56] Speaker 02:
What I'm here today to state is when industrial chemicals filed that protest claiming that mistake of fact,

[00:09:05] Speaker 02:
The problem was that they just punted on it saying that they're not going to review it.

[00:09:08] Speaker 02:
And then the CIT punted on it by saying they don't have jurisdiction.

[00:09:11] Speaker 03:
You say they filed a protest, but you can only protest decisions of customs that fit certain categories.

[00:09:18] Speaker 03:
And customs view was our letter saying you're late is not a protestable decision.

[00:09:23] Speaker 03:
Isn't that correct?

[00:09:24] Speaker 03:
That is what customs said.

[00:09:25] Speaker 03:
And you blew the deadline to file a protest to the actual, is it a liquidation decision?

[00:09:30] Speaker 03:
That is the position made by customs, however... You agree with that, though.

[00:09:35] Speaker 03:
You're out for filing a protest to the actual liquidation.

[00:09:39] Speaker 03:
I'm sorry, can you repeat?

[00:09:40] Speaker 03:
You're time barred from filing a protest to the actual liquidation decision that's the normal protest decision.

[00:09:45] Speaker 02:
Absolutely, Your Honor, yes.

[00:09:46] Speaker 02:
But the thing with the GSP statute, however, though,

[00:09:49] Speaker 02:
Is there anything in that statute that suggested customs

[00:10:03] Speaker 03:
failure to make a refund under that was a protestable decision under A?

[00:10:09] Speaker 02:
What the statute actually said was that for the purpose of the statute, anything that had entered during that two-year period would be treated as if it had been entered forward.

[00:10:18] Speaker 02:
And so once it had made that decision,

[00:10:21] Speaker 02:
The decision actually to not offer a liquidation or a reliquidation based on the statute would then in that end be considered more of an exaction, which is once again a protestable decision by customs.

[00:10:35] Speaker 02:
And that's where we're kind of seeing the issue being is that at the end of the day, once they filed their protest, albeit on a late filed request, the problem was that the custom service did not make any review of whether or not the underlying claim was valid.

[00:10:55] Speaker 02:
And all they did was they just punted it.

[00:10:57] Speaker 02:
And then the CIT said, we don't have jurisdiction to review it.

[00:11:00] Speaker 01:
Wait a minute.

[00:11:01] Speaker 01:
Before all my time to ask you a question goes away.

[00:11:04] Speaker 01:
I'm clear that you've given up on the I arguments, right?

[00:11:09] Speaker 02:
Actually, Your Honor, I mean, I believe that I does exist in the alternative.

[00:11:13] Speaker 01:
Wait, wait, wait, wait.

[00:11:14] Speaker 01:
I asked you about A, and you said no, A, not I. OK, let me take a step back then, Your Honor.

[00:11:20] Speaker 02:
I believe that A is the primary form of jurisdiction in this case, because we did file a timely protest.

[00:11:27] Speaker 01:
However, in the ultimate- You failed to raise I before the CIT.

[00:11:30] Speaker 01:
Pardon?

[00:11:30] Speaker 01:
Is that correct?

[00:11:31] Speaker 01:
Pardon?

[00:11:32] Speaker 02:
eighteen of the read by the government says you failed to raise the issue of fifteen eighty one i before the c i t that's correct your honor yes sir and the reason behind that was uh... at the time i was not the attorney of record on that case however at the time wait wait i'm sorry i meant your client failed to raise it before the senate that in sure here are uh... so what what ended up what ended up occurring in that situation however is

[00:11:56] Speaker 02:
We had so firmly believed that A was the proper venue that they had not... You can't raise I now on appeal.

[00:12:04] Speaker 03:
I mean, your client has to be bound by its choices, not of its representatives.

[00:12:10] Speaker 03:
Sure.

[00:12:11] Speaker 03:
But Your Honor, I... The fact that it gets a different representative doesn't make it get to come forward with a different argument.

[00:12:17] Speaker 03:
Well, so... Or the fact that its representative screwed up and didn't file a

[00:12:23] Speaker 03:
refund request when they should have doesn't excuse them somehow as a mistake.

[00:12:28] Speaker 02:
I do agree your honor with the fact that the rules of the CIT do preclude you from raising I if you did not do it based on rule three that says that if you file your summons and complain at the same time if you're filing under I however this court granted has not

[00:12:45] Speaker 02:
that I have found been able to, at any point in time, say otherwise that this court can raise it to a sponte.

[00:12:51] Speaker 02:
However, jurisdictional issues can always be raised by a court at any time.

[00:12:56] Speaker 02:
And there's plenty of Supreme Court precedent that says that.

[00:12:58] Speaker 03:
Isn't that usually when there's a jurisdictional problem, not when you're coming up with an alternative theory of jurisdiction?

[00:13:07] Speaker 02:
Yes, your honor.

[00:13:08] Speaker 03:
However, I do believe that that would be where somebody said no jurisdiction in the appellate court comes up and said, well, maybe there's this alternative theory.

[00:13:15] Speaker 03:
You should go check on it that you never raised.

[00:13:16] Speaker 02:
Well, so in the Golden Bridge case, actually, there it wasn't 100% similar.

[00:13:21] Speaker 02:
But in the Golden Bridge case, they did say that there is a ability to deviate from the rule of the standard rule and have a court raise an issue.

[00:13:30] Speaker 02:
Suis Ponte on this.

[00:13:31] Speaker 04:
That was a claim construction question, right?

[00:13:34] Speaker 04:
That was a claim construction case.

[00:13:35] Speaker 02:
That's correct, Your Honor.

[00:13:37] Speaker 02:
And in the Forshee case, the Supreme Court said that with few notable exceptions, such as jurisdiction issues, then those sorts of issues are generally not raised suespante by a court.

[00:13:48] Speaker 02:
However, they do, you know, posit that it is theoretically possible that you could raise those issues upon appeal.

[00:13:57] Speaker 01:
You say

[00:13:58] Speaker 01:
on page 12 of this admirably slim brief that, keeping in mind we have to read everything two or three times, that because industrial chemicals still has a right to protest CPB's denial, and CPB completely disregarded this right, this court has a basis for jurisdiction under I-4 as it relates to 1581A.

[00:14:22] Speaker 01:
Yes, sir.

[00:14:25] Speaker 01:
Can you cite any legal authority to support that statement?

[00:14:29] Speaker 02:
I can't find any at the time, Your Honor.

[00:14:32] Speaker 02:
I'm not aware of any.

[00:14:33] Speaker 02:
Me neither.

[00:14:34] Speaker 02:
That was a construction of the statutory provisions that we found with regards to the administration of the review of the protest.

[00:14:49] Speaker 02:
If Your Honors have no further question, I'd like to reserve the remainder of my time for rebuttal.

[00:14:53] Speaker 02:
Thank you.

[00:14:59] Speaker 00:
Good afternoon, Your Honors.

[00:15:01] Speaker 00:
May it please the Court.

[00:15:02] Speaker 00:
I'm Gaia, and I'm here with Customs Counsel, Yelena Slipak.

[00:15:07] Speaker 00:
Your Honors, the Customs notification of March 11, 2016 was a non-protestable event.

[00:15:14] Speaker 00:
Customs had no discretion to act here.

[00:15:18] Speaker 01:
Congress was being pretty generous.

[00:15:20] Speaker 00:
Congress, as you're on the notes, was passing a retroactive GSP benefit with a clear deadline.

[00:15:29] Speaker 03:
But what if, hypothetically, they'd filed within the deadline and said, we're entitled to a refund, and Customs factually gets it wrong and says, oh, well, you didn't actually pay this and denies the refund request.

[00:15:42] Speaker 03:
Is that a protestable decision?

[00:15:44] Speaker 00:
I think that would be a different, that would likely be a 1581A.

[00:15:48] Speaker 03:
That's because it's an actual customs decision on whether or not they're due a refund, not you're out because you're late.

[00:15:56] Speaker 00:
That would be, I think the way that we would think about that is that that would be the, customs would have had discretion in that case and would have been under a mistaken belief that it couldn't act, but it actually had authority to act.

[00:16:07] Speaker 00:
And in that case there would be the protest mechanism to correct that mistaken belief and if not there would be review in the court.

[00:16:13] Speaker 00:
In this case, Customs had no authority to act and therefore there was no protestable event and therefore there was no jurisdiction at the CIT.

[00:16:25] Speaker 00:
uh... and unless you're on it any further questions the government will rest on its brief you going for the record that's not the record i've seen the record before

[00:16:41] Speaker 02:
Your honors, I would just like to just point out really quickly that in this instance, we are here on the jurisdictional question, not on the merits question of whether or not a mistake of fact existed.

[00:16:50] Speaker 02:
We're here just to decide whether or not a valid protest had been filed, which had been denied by customs, and thus gives rise to jurisdiction under A. If your honors have any questions about that, I would like to answer any questions that you have as to whether or not that was a valid protest, else I would also rest on my briefs with regards to the points made therein.

[00:17:10] Speaker 04:
Thank you.

[00:17:12] Speaker 04:
We thank both sides.

[00:17:13] Speaker 04:
The case is submitted.

[00:17:14] Speaker 03:
That concludes our proceedings for this afternoon.