[00:00:00] Speaker 02:
American home insurance.

[00:00:03] Speaker 02:
We've got more issues on this one, right?

[00:00:05] Speaker 00:
A lot more issues on this one.

[00:00:08] Speaker 00:
Unless the court has a preference of order, I would like to be going with what we think are the more important issues for our client, which is the 30 entries in case number 311, which the court has found

[00:00:30] Speaker 00:
were waived.

[00:00:32] Speaker 00:
And actually, I start with the statute of limitations.

[00:00:36] Speaker 00:
There were two cases.

[00:00:36] Speaker 00:
So that was the all country rate.

[00:00:42] Speaker 00:
Yes.

[00:00:43] Speaker 00:
There were two exporters which Commerce had initiated administrative reviews on to determine whether or not they were subject to anti-w do's.

[00:00:53] Speaker 00:
They were new shipper exporters of these products to the US.

[00:00:57] Speaker 00:
And for two of them,

[00:00:59] Speaker 00:
Commerce initiated an administrative review to determine whether, in fact, there was an anti-dumping liability for them.

[00:01:07] Speaker 00:
Commerce rescinded those reviews and published notice to that effect in the Federal Register, which in turn notified customs that those entries were ripe for liquidation and that their six-month time period in which to liquidate the entries had run.

[00:01:25] Speaker 00:
For Clipper, which is one of the exporters it had its own previous any dumping rate and so those entries were liquidated at the at their rate for the other Exporter well Ralphing was I'm sorry Ralphing was one had its own Clipper was the exporter who was a new shipper that had never exported products to the us before and had no rate one of the issues

[00:01:54] Speaker 00:
that was raised is that Clipper had waived its right to have a determination made within the six-month deemed liquidation period

[00:02:05] Speaker 00:
from the date of publication of the rescission of the anti-dumping review.

[00:02:12] Speaker 02:
Just because there's so many issues, I want to make sure we're on the same page.

[00:02:16] Speaker 02:
So this is the issue where you're arguing that the statute of limitations is jurisdictional, and hence there could not have been a waiver even though there was.

[00:02:25] Speaker 00:
That's correct, Your Honor.

[00:02:27] Speaker 00:
And we believe that 2415 is a mandatory statute that requires

[00:02:35] Speaker 00:
that it does not allow a company to waive its statute.

[00:02:42] Speaker 02:
And that is because the language in the statute says shall be barred?

[00:02:46] Speaker 00:
Well, that's one thing.

[00:02:48] Speaker 00:
But that kind of language has been used in other cases not related to any dumping.

[00:02:54] Speaker 02:
And has been rejected by the Supreme Court.

[00:02:57] Speaker 00:
But this case, I think, is unique because the difference in this situation is that 2415

[00:03:03] Speaker 00:
is the culmination of a process of entering goods subject to anti-dumping duties.

[00:03:09] Speaker 00:
In 1984, the provisions for 1504D for entering goods were enacted and substantially modified to protect both importers, sureties, and other parties involved to ensure that they received a fair due process proceeding throughout in a whole anti-dumping process.

[00:03:31] Speaker 00:
There were time limits set in that.

[00:03:33] Speaker 00:
There were obligations set in that, all of which have been litigated in some way or another in this case.

[00:03:39] Speaker 00:
But they were all mandatory obligations.

[00:03:43] Speaker 00:
But those provisions are meaningless without 2415, because you can go through the whole process, take two or three years with customs and commerce department and whoever's involved at the appropriate time.

[00:03:58] Speaker 00:
And at the end of it, customs can ask,

[00:04:01] Speaker 00:
and not always nicely, that an importer waive its rights that it's had in this whole process.

[00:04:09] Speaker 00:
They're waiving rights that were established by Congress after a long time, a long period of time, to write the 1504 obligations and time limits into the law.

[00:04:20] Speaker 00:
And at the end of this entire process, if 2415 is not a mandatory obligation

[00:04:26] Speaker 00:
for these entries to actually be liquidated at the end of the process, the whole process is going to be moot.

[00:04:34] Speaker 00:
And so it's going to change and eliminate rights that were created through a long legislative process.

[00:04:43] Speaker 00:
So this is more than just shall be barred and interpreting the language barred, how it applies in one statute compared to this statute.

[00:04:52] Speaker 00:
And our argument is that,

[00:04:55] Speaker 00:
It has to be, in this situation, a mandatory provision because it's the culminating act of the whole administrative process from the entry of goods subject to NAWD orders and the whole process going through it, or those other provisions, or moot.

[00:05:11] Speaker 00:
if this is not a mandatory provision.

[00:05:14] Speaker 02:
So we think this is- Judge Eaton went through all of this.

[00:05:16] Speaker 00:
Pardon me?

[00:05:17] Speaker 02:
Judge Eaton, is that the Court of International Trade Judge?

[00:05:21] Speaker 02:
Yes.

[00:05:21] Speaker 02:
Yeah.

[00:05:22] Speaker 02:
And he rejected.

[00:05:22] Speaker 02:
I mean, the standard, which I don't think there's a dispute over, is whether or not, under Supreme Court precedent, there's some clear statement.

[00:05:29] Speaker 02:
Shelby Bard, as you can see, does not know.

[00:05:34] Speaker 02:
So you look at, I guess,

[00:05:36] Speaker 02:
the context of legislative history, what Congress would have intended.

[00:05:39] Speaker 02:
I'm just saying, what's the standard of review, do you think, for our analysis?

[00:05:43] Speaker 02:
I mean, Judge Eaton had a very strong analysis.

[00:05:48] Speaker 02:
Is this question de novo for us?

[00:05:49] Speaker 00:
I think it's de novo application for you, because Judge Eaton's analysis was based on a different statute of limitations.

[00:05:57] Speaker 00:
And I believe it's a statute of limitations when it limited the private party's right to seek an extension.

[00:06:06] Speaker 00:
And he did not analogize this, because I don't believe this issue was actually before him in this manner.

[00:06:12] Speaker 00:
It was before him, but it wasn't argued this way, I believe.

[00:06:15] Speaker 00:
Because the decision he made analyzing any Fujitsu case was different.

[00:06:22] Speaker 00:
The statute was different.

[00:06:23] Speaker 00:
The obligations were different.

[00:06:25] Speaker 00:
And they did not have this underlying historical precedent developed that leads to this final conclusion of parties' rights going up to it.

[00:06:35] Speaker 00:
So he does have an analysis of it, but it's not the analysis of a statute that's like 2415.

[00:06:41] Speaker 00:
It's analysis of another statute that has different obligations at the lower levels where the process is going forward.

[00:06:48] Speaker 00:
And we argue that the 1504 obligations are automatically, it customs its whim really basically, applicable

[00:07:02] Speaker 00:
unless Customs wants to seek a waiver and just vitiate the earlier obligations in the statute.

[00:07:10] Speaker 00:
We argue that 2414 has to also be a mandatory obligation.

[00:07:16] Speaker 00:
And if so, it will keep the entire legislative process intact.

[00:07:21] Speaker 00:
And that analysis, I don't believe, was in Judging's determination.

[00:07:30] Speaker 00:
And then.

[00:07:36] Speaker 00:
There's also the, if in fact this is right, the issue of what is, and the entries are going to be liquidated, the new shipper entries are going to be liquidated, at what rate will they be determined, be liquidated?

[00:07:52] Speaker 00:
The law says that they should be liquidated at the rate asserted by the importer on importation.

[00:07:59] Speaker 00:
The government argues that the bonds that were issued

[00:08:04] Speaker 00:
assert that rate for a new shipper importer because they put in the bond amount the highest rate that's been determined for this case, and just that is the rate asserted by the importer.

[00:08:19] Speaker 00:
But that's not the rate asserted by the importer.

[00:08:21] Speaker 00:
That amount in those bonds is required by the port director in establishing the rate of bond to be put into place.

[00:08:29] Speaker 00:
The customs regulations in 19 CFR 113

[00:08:34] Speaker 00:
state the port director's responsibilities in establishing the amount of bonds to be established.

[00:08:41] Speaker 00:
That is always HESTER, because the port director has to protect the revenue.

[00:08:46] Speaker 00:
And at the time of a new shipper import, that new shipper does not have its own anti-dumping duty rate.

[00:08:52] Speaker 00:
It has to assert its own rate.

[00:08:56] Speaker 00:
The rate that a new shipper will assert is zero.

[00:09:00] Speaker 00:
They don't know their rate.

[00:09:01] Speaker 00:
They don't know what the rate's going to be.

[00:09:02] Speaker 00:
That's why they request commerce to do an anti-dumping review to determine what rate should be applicable to it, if any.

[00:09:13] Speaker 00:
And until that decision is made,

[00:09:16] Speaker 02:
I guess that may be true.

[00:09:17] Speaker 02:
What I'm a little confused about is the district, the CIT judge referred to column 34, where the exporter, going to your point, he asserted the amount of the anti-w duty secured by a bond.

[00:09:32] Speaker 02:
And that was, in fact, the all-country rate that we're talking about.

[00:09:37] Speaker 00:
But that's not the rate asserted by the importer that is due.

[00:09:41] Speaker 00:
That is the rate that's required to be put into that column.

[00:09:44] Speaker 00:
And if you look at those technical entry summaries and the bonds, every one of them has that, but it's got the word bonded in it.

[00:09:55] Speaker 00:
And it shows that that rate was not applied to the importer on importation.

[00:10:01] Speaker 00:
What happens is when the process is completed three or four years later, and if you look at some of the bonds that are in the appendix,

[00:10:09] Speaker 00:
You'll see handwritten changes to the original type entry bond They eliminate the bonded they cross it out because then at that time They're applying the new rates until that time the importer has not asserted any rate although all that information has to be on the customs entry form and because of that the importer wouldn't

[00:10:33] Speaker 00:
Automatically, no importer will automatically declare they owe a 377% dumping due to, you know, products they've never imported in the U.S.

[00:10:41] Speaker 00:
That's the purpose of the Commerce Review to determine if that's true or not.

[00:10:46] Speaker 00:
And so the customs entry documents have all the information, but they're not that a lot of the information on it initially is not that asserted by the importer of what it assumes its a liability is going to be because it doesn't know at that time.

[00:10:59] Speaker 00:
That's the whole basis of this

[00:11:02] Speaker 00:
a whole new shipper process that's been going on for years.

[00:11:05] Speaker 00:
Once a new shipper comes in, it imports goods.

[00:11:09] Speaker 00:
It's got a bond to cover it if it does owe the all-country rate at the end.

[00:11:14] Speaker 00:
But at the time of that, it doesn't know what its rate's going to be.

[00:11:18] Speaker 00:
Just like in a regular dumping review, when the importer may already have its rate,

[00:11:23] Speaker 00:
It doesn't assert any rate it will assert an old rate if it's got an existing right But it's it's going even though its bond will also have the possibly the ultimate or because it had an earlier view the last review rate and

[00:11:40] Speaker 00:
All that process is done by the importer at the Commerce Department in the Commerce Review.

[00:11:46] Speaker 00:
It's not done by a customs determination to put the existing all country rate at the top of the bond or listed in there until the process is, the administrative review process is completed.

[00:11:58] Speaker 00:
So at this point, the importer, a new shipper importer,

[00:12:03] Speaker 00:
doesn't know what its liability is going to be.

[00:12:05] Speaker 00:
It knows that it may eventually have to pay the amount of the surety, which is the impunity of all country rate.

[00:12:11] Speaker 00:
But it doesn't know that until it's gone through the entire process.

[00:12:15] Speaker 02:
I hate to take your time with this, but I just have a question that isn't on the issue raised.

[00:12:19] Speaker 02:
But there have been so many proceedings in connection with this case.

[00:12:24] Speaker 02:
This is on the notice issue.

[00:12:26] Speaker 02:
And there were some entries where you were the single surety and others where you were continuous.

[00:12:33] Speaker 02:
And in Eaton's 2015 opinion, he rejects

[00:12:38] Speaker 02:
your thing, which I think is on appeal, about the notice and the single transaction, because you haven't shown you were substantially prejudiced.

[00:12:45] Speaker 02:
But on the continuous bond entries, he says there's a question of fact.

[00:12:50] Speaker 02:
We've got to go to trial.

[00:12:51] Speaker 02:
Whatever happened to that issue?

[00:12:52] Speaker 02:
That issue is not on appeal.

[00:12:54] Speaker 00:
Did you prevail?

[00:12:54] Speaker 00:
No, it's not on appeal.

[00:12:56] Speaker 00:
Both parties, the government and we, waived that issue.

[00:13:00] Speaker 00:
And so it was going to require another trial to determine how much might be liable or not be liable.

[00:13:06] Speaker 00:
And it was not an issue that either party wanted to litigate again.

[00:13:10] Speaker 00:
We were so far into this process that it just didn't make sense.

[00:13:14] Speaker 00:
So we didn't have that.

[00:13:16] Speaker 00:
But on the other issue, though, he did... Let me find it here.

[00:13:35] Speaker 02:
Well you're almost into your rebuttal, so if you want to rely on your grace that would be great.

[00:13:54] Speaker ?:
Thank you.

[00:14:00] Speaker 04:
Good morning, Your Honors.

[00:14:01] Speaker 04:
May it please the Court.

[00:14:02] Speaker 04:
If I may, I just want to correct the record briefly.

[00:14:06] Speaker 04:
My recollection, and I confer with someone also who has better memory than I, with respect to the continuous bond, Your Honor is correct, that was left in that opinion as potentially going to trial.

[00:14:18] Speaker 04:
But what happened with continuous bonds, because they run for a period of time and cover all entries that come in, that bond had been used up in another case.

[00:14:28] Speaker 04:
So we went back to the Court and advised the Court that, in fact, Your Honor didn't have to worry about the continuous bond or a trial on it because there was no money left in the continuous bond.

[00:14:37] Speaker 04:
for the consolidated case.

[00:14:39] Speaker 04:
So that's why it went away.

[00:14:40] Speaker 04:
It wasn't that the government wasn't willing to go to trial.

[00:14:43] Speaker 04:
We weren't willing to go to trial for a legitimate issue, but that issue had actually passed on, so it was no longer necessary.

[00:14:52] Speaker 04:
Your Honors, with respect to our cross-appeal, there are two issues.

[00:14:58] Speaker 04:
We believe the trial court erred when it declined to award the government 1677-G interest.

[00:15:05] Speaker 04:
Now there's no dispute that the 1677-G interested issue in the consolidated court number 09491.

[00:15:13] Speaker 04:
that the government wasn't entitled to it.

[00:15:15] Speaker 04:
There was an error that had been made at the time of liquidation.

[00:15:20] Speaker 04:
But the problem is that when an error occurs at the time of liquidation, if that liquidation becomes final and conclusive under 1514, it becomes final and conclusive as to everyone.

[00:15:32] Speaker 04:
And that's what happened here.

[00:15:34] Speaker 04:
In fact, a act protested the inclusion of 1677-G interest in the demand that had been made on it by the government.

[00:15:43] Speaker 04:
It, however, didn't perfect its rights and then bring an action in front of the CIT.

[00:15:49] Speaker 04:
It waited until the government brought a collection action.

[00:15:52] Speaker 04:
In that scenario, that liquidation became final and conclusive.

[00:15:57] Speaker 04:
For example, if there had been an underbilling in that liquidation, the government couldn't have come back and sought more because it would have been final and conclusive as to the government as well.

[00:16:07] Speaker 04:
So there's parity there.

[00:16:09] Speaker 04:
This court has been very clear about when things become final and conclusive.

[00:16:14] Speaker 04:
In fact, in a very similar case, the United States versus AHAC in 2017, a 2017 opinion by this court, the court found that 1505D interest that AHAC was complaining about, it had become final and conclusive because AHAC didn't preserve its rights by bringing an action before the CIT.

[00:16:36] Speaker 04:
The CIT court,

[00:16:38] Speaker 04:
kind of got a little confused and actually perceived this as an action based in contract.

[00:16:45] Speaker 04:
Now, yes, the customs bond is a contract between the principal, the importer, and AHAC.

[00:16:51] Speaker 04:
I mean, there's no question there was a change of money and there was an agreement as to what was going to occur.

[00:16:55] Speaker 04:
The government's the beneficiary of that bond.

[00:16:58] Speaker 04:
But with respect to raising an affirmative defense to a final and conclusive liquidation, the fact that there is a bond is irrelevant.

[00:17:07] Speaker 04:
The fact is that the rule compels that once it's final and conclusive, you can't raise an affirmative defense that could have been raised as part of the seven factors in 15.

[00:17:19] Speaker 03:
This isn't a question of whether the government is legitimately entitled to 1677-G interest in this case.

[00:17:25] Speaker 03:
They're absolutely not under the statute.

[00:17:27] Speaker 03:
But you're saying they lost the right to challenge that.

[00:17:31] Speaker 03:
What about the Cherry Hill case?

[00:17:32] Speaker 03:
The Cherry Hill case seems to me to suggest that they're not challenging, in this case, the liquidation, but your attempt to collect the AHAC bond after the importer defaulted.

[00:17:45] Speaker 03:
So wouldn't they fall within the Cherry Hill rubric such that they're not prevented from making this assertion at this point?

[00:17:53] Speaker 04:
No, Your Honor, they would not fall within the Cherry Hill rubric.

[00:17:56] Speaker 04:
The Cherry Hill rubric was a scenario where there was a final liquidation and the government sought to reliquidate and correct something.

[00:18:04] Speaker 04:
And that's the point.

[00:18:05] Speaker 04:
There was finality under Cherry Hill.

[00:18:07] Speaker 04:
The government wasn't entitled to relitigate outside of the scope of the time period when it may relitigate.

[00:18:14] Speaker 04:
So it became final and conclusive to the government.

[00:18:16] Speaker 04:
It's final and conclusive to AHAC, and indeed they are challenging the liquidation because they're challenging the 1677-G interest, which was buckled up into the liquidation.

[00:18:28] Speaker 04:
And the rights of assurity sit in the shoes.

[00:18:31] Speaker 03:
They're not challenging the 1677-G interest in the liquidation.

[00:18:36] Speaker 03:
They're challenging your right to collect it from them because the statute doesn't allow you to collect it from them.

[00:18:40] Speaker 03:
It only allows you to collect it from the importer.

[00:18:43] Speaker 04:
Well, Your Honor, the statute allows us to collect it from the importer.

[00:18:46] Speaker 03:
And since the surety- So if this were a case against the importer, 1677-G interest would be perfectly appropriate.

[00:18:54] Speaker 03:
If the importer, and suppose it was even awarded in that case, right?

[00:18:58] Speaker 03:
But then suppose the importer went belly up.

[00:19:02] Speaker 03:
Is the government then, it turns to the surety and says, now you've got to pay.

[00:19:06] Speaker 03:
Is it your view that the surety would have to pay the 1677-G interest as well, even though the statute clearly exempts them from it?

[00:19:13] Speaker 04:
Yes, Your Honor, they would, because they stand in the shoes of the importer.

[00:19:17] Speaker 03:
And so why does the statute distinguish?

[00:19:20] Speaker 03:
Why does the statute pertain only to importers?

[00:19:23] Speaker 04:
Well, Your Honor, it doesn't pertain only to importers.

[00:19:26] Speaker 04:
There may be a misunderstanding here.

[00:19:30] Speaker 04:
There were importers who were permitted to not make a cash deposit, upon which 1677-G runs.

[00:19:37] Speaker 04:
However, and they could do a bond in lieu of that deposit.

[00:19:42] Speaker 04:
But there's also the possibility that a port director, say an importer did do a cash deposit and the port director became concerned and wanted additional collateral and sought a single transaction bond.

[00:19:55] Speaker 04:
In that scenario, even though that 1677G has nothing to do,

[00:20:00] Speaker 04:
with respect to a bond in lieu of.

[00:20:03] Speaker 04:
The fact is that once something is inside of a final liquidation,

[00:20:09] Speaker 04:
The surety is required to bring in a protest, which they did, and then they have to bring in action before the CIT.

[00:20:18] Speaker 04:
If you sit on your rights, when you are capable of bringing them, you cannot then be heard to bring them as an affirmative defense, because you're simply being asked to pay the bill that the importer due.

[00:20:30] Speaker 03:
The government has conceded in its yellow brief that 1677G interest only applies to cash deposits by an importer not to bonds posted by a surety.

[00:20:38] Speaker 03:
That's correct, right?

[00:20:39] Speaker 04:
That is correct.

[00:20:41] Speaker 03:
Why isn't this an action over whether or not the government can nonetheless collect 1677-G interest?

[00:20:50] Speaker 03:
in the form of a bond posted by a surety.

[00:20:53] Speaker 03:
I don't understand.

[00:20:54] Speaker 04:
Yes, Your Honor, because there are two things occurring here.

[00:20:58] Speaker 04:
The surety is standing in the shoes of the importer and has a final liquidation.

[00:21:02] Speaker 04:
It could have protected itself against the final liquidation and been able to raise this as a defense.

[00:21:08] Speaker 04:
Well, it would have actually brought the action itself and would have raised it affirmatively in its own action against the government saying, that demand I don't have to pay because I don't have to pay the 1677.

[00:21:17] Speaker 03:
That's why I tried to give you the hypothetical where it was actually an action against the importer, where it would have been properly assessed.

[00:21:23] Speaker 03:
If there was a cash deposit by the importer, the 1677-G interest would have been properly assessed.

[00:21:27] Speaker 03:
And then suppose the importer goes belly up.

[00:21:29] Speaker 03:
The government has every right to collect then against the surety, but the surety has a bond posted.

[00:21:34] Speaker 03:
It seems that the surety ought to be allowed at that point, since it had not been the defendant – I don't know if it's technically the defendant – but it hadn't

[00:21:43] Speaker 03:
If the surety had been litigated not litigating earlier right if it was the importer the government was going after and the surety steps in at that late date after 1677 G interest is already on the table.

[00:21:55] Speaker 03:
I feel like they should have a right to say, no, under the statute, it can't be sought from us.

[00:21:59] Speaker 04:
Well, actually, under that hypothetical, Your Honor, with the importer who blows up, the government then turns to the surety for payment.

[00:22:09] Speaker 04:
At that point in time, there would be a demand that's sent out.

[00:22:12] Speaker 04:
And then the surety, because that's what triggers everything with the surety, surety comes back, files a protest, says, hey, you have 1677G in here.

[00:22:20] Speaker 04:
I'm not paying it.

[00:22:21] Speaker 04:
And we say, yay or nay, if we deny that protest, the Shorty says, fine, I'll see you in the CIT.

[00:22:26] Speaker 04:
And unquestionably, based on Judge Eaton's decision, unquestionably.

[00:22:32] Speaker 03:
So you're saying, in my hypothetical, they wouldn't be stuck with the 1677G because they'd have an opportunity thereafter to contest it.

[00:22:38] Speaker 04:
That's correct, Your Honor.

[00:22:39] Speaker 04:
It's the finality issue under 1514 that's driving this.

[00:22:43] Speaker 04:
Because the 1677G is a charge or exaction.

[00:22:46] Speaker 04:
Erroneously or not, it nevertheless is a charge or exaction.

[00:22:50] Speaker 04:
And AHAC had the ability to prevent that problem from arising.

[00:22:55] Speaker 04:
And they failed to do so.

[00:22:57] Speaker 01:
Your Honor, secondarily.

[00:22:58] Speaker 01:
Council, this is very interesting.

[00:23:01] Speaker 01:
Listening to the argument and the rigor of the government's position

[00:23:06] Speaker 01:
Makes me really wonder why the statute of limitations shouldn't also be sufficiently rigorous.

[00:23:14] Speaker 04:
Your Honor, statute of limitations should be sufficiently rigorous.

[00:23:18] Speaker 01:
However... And not waivable.

[00:23:20] Speaker 01:
You're saying that all of these other actions are final.

[00:23:23] Speaker 01:
It's over.

[00:23:25] Speaker 04:
Well, Your Honor, statutorily under 1514, you end up with final and conclusive events.

[00:23:31] Speaker 04:
With respect to waiver of statute of limitations, a statute of limitations would be a final event for the government, but for a waiver.

[00:23:40] Speaker 04:
And the Supreme Court has said, the only time you can't waive is when it goes to the jurisdiction of the court, because parties are not entitled to tell the court what its jurisdiction is.

[00:23:51] Speaker 04:
So when there's a scenario where if someone, say the government were to receive a waiver and the provision is one that absolutely no one cares, it doesn't care how many waivers you have, it is a jurisdictional provision, the statute of limitations is almost like a statute of repose, it's a locked door, you can't move it, and that's that.

[00:24:11] Speaker 04:
The scenario we have here with 2415 is exactly not that.

[00:24:16] Speaker 04:
It uses the language Shelby Bard, which the Quefan case has reviewed.

[00:24:21] Speaker 04:
And indeed, this court in Ford versus the United States in 2016 went through a complete analysis of what it is.

[00:24:30] Speaker 04:
There's a structure here.

[00:24:32] Speaker 04:
When are statute limitations jurisdictional so that it doesn't matter if you're sitting with what you think is the golden ticket to a waiver, it doesn't matter.

[00:24:42] Speaker 04:
It's jurisdictional.

[00:24:43] Speaker 04:
You can't waive jurisdiction.

[00:24:45] Speaker 04:
It went through that analysis and found that statutes similar to the one here, and I'm unaware of any case, and I believe this will be the first case that will weigh in on this, with respect to 2415A in this context.

[00:25:00] Speaker 04:
But in the Federal Tort Claims Act, which uses similar language as the Quaffon analysis.

[00:25:06] Speaker 02:
But do you think the answer here is compelled by the Supreme Court precedent?

[00:25:10] Speaker 04:
Yes, Your Honor, I do.

[00:25:11] Speaker 04:
And I also believe it's compelled by this court's precedent adopting Quayfond in the Ford versus United States, and indeed some other cases that this court has ruled on.

[00:25:21] Speaker 04:
So yes, I believe this court is consistent with the Supreme Court, and that when it comes to the type of claims processing language that is found in 20- But your friend made an argument here and in the briefs that, yes, I mean,

[00:25:34] Speaker 02:
The Supreme Court hasn't absolutely foreclosed it.

[00:25:37] Speaker 02:
It just says you need a clear statement.

[00:25:39] Speaker 02:
And now it's up to us to figure out what kind of statement is sufficiently clear.

[00:25:44] Speaker 02:
So your friend makes an argument that the circumstances of this statute and everything else going on here makes sufficiently clear to be a jurisdictional statute.

[00:25:54] Speaker 02:
So what's your response to that?

[00:25:56] Speaker 02:
I mean, there is wiggle room here.

[00:25:58] Speaker 04:
Right, Your Honor.

[00:25:59] Speaker 04:
My response to that is that it is absolutely not jurisdictional.

[00:26:03] Speaker 04:
There are other issues in this case that clearly AHAC is passionate about, but the fact of the matter is that AHAC had an opportunity to address all of those issues in the front position as a plaintiff, and it chose not to.

[00:26:18] Speaker 04:
It also had the right to say to the government, you know what, thanks but no thanks on the

[00:26:24] Speaker 04:
I think due process and compelling issues with respect to ADD entries coming in and having them de-liquidate, I think all of that is so important, I am not going to waive that.

[00:26:36] Speaker 01:
They didn't do that.

[00:26:37] Speaker 01:
This is a very difficult issue because

[00:26:40] Speaker 01:
As far as I can tell, no statute of limitations has ever been cited, and I haven't found any, which says, however you can waive the statute of limitations.

[00:26:50] Speaker 01:
Just get, for whatever reasons here, they say that there was a certain subtle pressure for waiver, that the statute of limitations can be waived.

[00:27:00] Speaker 01:
And yet we have a particular case on particular facts, where on the equities, it was held waivable.

[00:27:07] Speaker 01:
But you're saying that

[00:27:09] Speaker 01:
Any statute of limitations doesn't mean what it says.

[00:27:13] Speaker 01:
As long as you can persuade someone for whatever reason, or for no reason, or ignorance, to waive it, that can't go that far.

[00:27:24] Speaker 04:
Sure, Your Honor, it absolutely can, because the only thing that stops it is if it's jurisdictional, because no one can tell the court what to do.

[00:27:32] Speaker 04:
However, a party can enter into any rights that it wants to enter into, and when one waves the statute of limitations,

[00:27:40] Speaker 04:
All one is saying is, if and when you sue me and you sue me too late, I can't raise that as an affirmative defense.

[00:27:48] Speaker 04:
That's a waivable defense under the rules.

[00:27:51] Speaker 04:
If you forgot to raise it in the first instance, it's waivable.

[00:27:57] Speaker 03:
So I understand the Supreme Court case, and whether I like it or not, I'm stuck with it, right?

[00:28:03] Speaker 03:
You can't have liked it because the government was completely opposed to the position the Supreme Court ultimately adopted.

[00:28:08] Speaker 03:
It favors you here.

[00:28:09] Speaker 03:
But it was not a position the government thought correct in the Supreme Court briefing.

[00:28:14] Speaker 03:
That being said, in that case, it was even worse.

[00:28:17] Speaker 03:
Didn't it say forever barred?

[00:28:19] Speaker 03:
Am I remembering it right, the word forever?

[00:28:21] Speaker 03:
Forever barred.

[00:28:23] Speaker 03:
And the Supreme Court nonetheless concluded that was not a clearly expressed intent by Congress for it to be jurisdictional.

[00:28:28] Speaker 03:
Forever barred.

[00:28:31] Speaker 03:
I mean, if I talk that way to my children and they turn around and did something thereafter, I mean, I just can't imagine what the consequences in my household would be.

[00:28:39] Speaker 03:
My former law clerk could probably tell you how that would go over in our chambers.

[00:28:44] Speaker 04:
Not good.

[00:28:44] Speaker 04:
It's not good.

[00:28:45] Speaker 04:
I think with respect to forever barred, because it's limited to activities by a party and has nothing to do with the court.

[00:28:55] Speaker 04:
See, because it doesn't say in that the court shall forever bar it.

[00:28:59] Speaker 04:
It says, the claim shall be forever barred.

[00:29:02] Speaker 04:
And that's the distinction.

[00:29:05] Speaker 04:
And unless Congress chooses to marry... So what would be the magic language?

[00:29:10] Speaker 03:
I'm just curious because I didn't get it out of the Supreme Court opinion.

[00:29:13] Speaker 03:
If forever barred isn't enough to make it jurisdictional and

[00:29:17] Speaker 03:
what the Supreme Court said in that case was has to be clearly stated.

[00:29:21] Speaker 03:
I'm not sure what it means, because I'm struggling in my own mind to come up with a clearer way to state it than to use the term forever barred.

[00:29:29] Speaker 03:
And what made me think of this was Judge Newman's question.

[00:29:31] Speaker 03:
Are you saying that in order for something to be jurisdictional, Congress would have to say this is forever barred and this is jurisdictional or forever barred, and that means you can't waive it?

[00:29:39] Speaker 03:
I mean, is that the kind of statement that is now required in light of the Supreme Court?

[00:29:44] Speaker 04:
I believe a statement somewhere in that neighborhood, something in the provision that says the court can't hear it.

[00:29:54] Speaker 04:
The court cannot accept it.

[00:29:57] Speaker 04:
In that sense, the court must dismiss it.

[00:30:01] Speaker 04:
Those types of language in that type of a statute of limitations heading, I believe that would convey congressional intent that this is not waivable and it's inextricably intertwined to what the court does.

[00:30:15] Speaker 04:
Because what we're dealing with right now is just what the parties are doing.

[00:30:18] Speaker 04:
And of course, the one thing the parties can't do, for example, if you bring your action after a protest is denied,

[00:30:26] Speaker 04:
on 181st day.

[00:30:29] Speaker 04:
There's no jurisdiction, because that's a jurisdictional predicate, and the United States government doesn't waive that.

[00:30:34] Speaker 04:
And so that is a scenario where that doesn't happen.

[00:30:37] Speaker 04:
But I believe that language actually in the statute of limitations provision.

[00:30:41] Speaker 03:
What about in this case?

[00:30:43] Speaker 03:
I may not remember the facts right, but I thought that this statute of limitations was actually in the section conferring jurisdiction, wasn't it?

[00:30:51] Speaker 03:
It was actually within the rubric of the section that confers jurisdiction.

[00:30:56] Speaker 03:
by implication, or is that not enough because it's not a clear statement, even though it's in the jurisdiction section?

[00:31:02] Speaker 04:
Well, this is not within the jurisdiction section.

[00:31:05] Speaker 04:
OK, but if it had been, I understand it wasn't.

[00:31:06] Speaker 04:
So for example, our jurisdiction for the CIT is 28 U.S.C., 1581 A, and the whole family, A from J. Well, suppose it had been in that section, the header of which was jurisdiction, and then this thing said Shelby Vard with nothing else.

[00:31:23] Speaker 04:
It's unclear, but one of the things that the case law seems to suggest is that when Congress has designed a scheme where jurisdiction is in one area and statute of limitations is in another, that that is an indication that this is a waivable defense.

[00:31:41] Speaker 04:
And so I think you would have to marry the two.

[00:31:45] Speaker 04:
I got it.

[00:31:47] Speaker 02:
Kind of odd here, I presume this statue was enacted long before the Supreme Court's opinion in 2015.

[00:31:55] Speaker 02:
So it wasn't a circumstance where Congress was aware of what the Supreme Court was about to require of them in terms of clarity, right?

[00:32:03] Speaker 04:
Well, that's in Kueifan.

[00:32:04] Speaker 04:
But I believe that I can't tell you that there are Supreme Court cases prior to that.

[00:32:10] Speaker 04:
But Congress is expected to know what all of its courts are doing.

[00:32:15] Speaker 04:
And so the Kueifan case would have worked its way up.

[00:32:17] Speaker 04:
And if even before it got to the Supreme Court,

[00:32:20] Speaker 04:
I mean, Congress could have said, ooh, maybe this is a little too ambiguous.

[00:32:23] Speaker 04:
We don't like the way we've drafted it.

[00:32:24] Speaker 04:
Let's change this in that scenario, perhaps.

[00:32:27] Speaker 04:
But unfortunately, I would be guessing, and I don't want to speculate to you, Your Honor.

[00:32:35] Speaker 02:
But we are way over time.

[00:32:37] Speaker 02:
I'm sorry.

[00:32:40] Speaker 02:
Thank you, Your Honor.

[00:32:47] Speaker 00:
I just go back to what I said originally.

[00:32:51] Speaker 00:
In this particular situation, 2415 is intricately connected to the import procedures under 1504 that were established by Congress to protect sureties, to protect importers, and to protect the government.

[00:33:05] Speaker 00:
And if 1504, 2415 is not a mandatory requirement for jurisdiction, to give the court jurisdiction,

[00:33:14] Speaker 00:
And it shall be barred.

[00:33:16] Speaker 00:
It's depriving the government jurisdiction to have a case that it has extended improperly beyond the statutory timeline.

[00:33:24] Speaker 02:
Can I just ask you a side question with regard to that?

[00:33:26] Speaker 02:
And that's to the whole waiver notion, which the government referred to.

[00:33:29] Speaker 02:
I mean, we're here because somehow you felt that you didn't have a choice, right?

[00:33:36] Speaker 02:
And that you had to waive it.

[00:33:39] Speaker 02:
I mean, otherwise, you come in, you have a choice.

[00:33:41] Speaker 02:
You sort of have to live with the consequences.

[00:33:47] Speaker 02:
Take your word for the fact that you were worried about what the government might do in another circumstance, so you were sort of involuntarily required to waive it?

[00:33:57] Speaker 00:
Well, I've been representing clients for a long time in this area.

[00:34:01] Speaker 00:
And I know every time one of them is faced with a decision where the government is trying to impose something on them or asking them to waive something so they can have a little more time to do it, every time they acquiesce to it because

[00:34:16] Speaker 00:
They're concerned that if they don't, it's going to precipitate a more quick decision against them.

[00:34:24] Speaker 00:
And so it's not an impractical thing.

[00:34:26] Speaker 00:
It's not in the law.

[00:34:27] Speaker 00:
I just know from practice that it happens consistently.

[00:34:31] Speaker 02:
I appreciate that.

[00:34:32] Speaker 02:
I just don't know what we're supposed to do with that.

[00:34:34] Speaker 00:
Well, I think what you do with it is you look at the context of the anti-dumping procedures, the timing involved.

[00:34:41] Speaker 00:
the obligations of all the notice obligation you mentioned which a Hack did provide notice Arguments which they didn't the government didn't didn't address so they waived their opportunity to do that, but the Point is that was a long process to create a

[00:35:02] Speaker 00:
And get all the parties and the government to create the 1504 procedures that are mandatory.

[00:35:07] Speaker 00:
You can't waive a failure to liquidate within six months when an administrative review is final.

[00:35:15] Speaker 00:
But you can waive the right, the six-year period, but when the customs comes and asks you to it, to file a lawsuit against them for the part that they couldn't waive.

[00:35:28] Speaker 00:
My point is that

[00:35:29] Speaker 00:
That process that was created over several years of congressional consideration is now totally irrelevant if, in fact, 2415 in this situation is not also mandatory to prevent the government from filing a lawsuit when it's gone through all that other process that Congress has established.

[00:35:52] Speaker 02:
Thank you.

[00:35:54] Speaker 02:
Well, I guess technically you've got

[00:35:57] Speaker 02:
You've exceeded your time.

[00:35:58] Speaker 04:
Technically, I owe you time, I believe.

[00:36:01] Speaker 04:
I'm sorry.

[00:36:02] Speaker 02:
Just briefly on the cross appeal.

[00:36:04] Speaker 04:
Just on the issue that was just raised with respect to 1504 procedures.

[00:36:08] Speaker 04:
That's correct.

[00:36:09] Speaker 04:
No one can change a statute.

[00:36:12] Speaker 04:
But you can waive statute of limitations.

[00:36:14] Speaker 04:
But more significantly, 2514 is not just limited to custom statutes.

[00:36:19] Speaker 04:
Is this the cross appeal?

[00:36:20] Speaker 04:
Sorry?

[00:36:20] Speaker 04:
Are you talking about the cross appeal?

[00:36:22] Speaker 04:
No.

[00:36:22] Speaker 03:
You're limited to the cross-appeal.

[00:36:24] Speaker 03:
You don't get the last word on the appeal.

[00:36:26] Speaker 04:
She made that clear.

[00:36:26] Speaker 04:
Oh, I'm sorry.

[00:36:28] Speaker 04:
Well, that's just the way actually litigation works.

[00:36:30] Speaker 04:
Forgive me, Your Honor.

[00:36:31] Speaker 04:
I actually misheard what we said.

[00:36:32] Speaker 04:
I thought you had said, it's OK just to talk to this.

[00:36:35] Speaker 02:
No.

[00:36:36] Speaker 04:
OK.

[00:36:36] Speaker 04:
Thank you.

[00:36:37] Speaker 04:
Thank you, Your Honors.

[00:36:38] Speaker 04:
I've said all I needed to say on my cross-appeal.

[00:36:40] Speaker 02:
Thank you.

[00:36:42] Speaker 02:
We thank both sides.

[00:36:43] Speaker 02:
And both cases are submitted.