[00:00:00] Speaker 00:
Our next case is Target Corporation v. U.S.

[00:00:02] Speaker 00:
232274.

[00:00:04] Speaker 00:
Okay, Mr. Gill.

[00:00:11] Speaker 00:
You have zero-five minutes of your time for your bill, correct?

[00:00:14] Speaker 00:
Yes, Your Honor.

[00:00:15] Speaker 00:
Okay.

[00:00:17] Speaker 00:
Good morning, Your Honor.

[00:00:19] Speaker 00:
I'm Patrick Gill of Council of the Infirmary of Samuel, Travis, and Rosenberg, representing the Appellate Target Corporation.

[00:00:29] Speaker 00:
As we bargained throughout our brief, Target appeals the decision of the CIT that it would be liquidation of 40 entries of Target at a rate of 72.29% rather than a rate of 9.4% at which the entries were entered.

[00:00:52] Speaker 00:
The facts are not in dispute in this case, and have not been.

[00:00:56] Speaker 00:
Commerce issued a preliminary anti-dumping determination at a rate of 9.4%.

[00:01:02] Speaker 00:
Commerce issued a final determination of anti-dumping duties at 72.29%, which was by stipulation of the parties, which did not include Target, and issued instructions to seek

[00:01:18] Speaker 00:
to liquidate at 72.

[00:01:21] Speaker 00:
That 72.5 rate, that was a settlement rate, right?

[00:01:25] Speaker 00:
I'm telling you.

[00:01:26] Speaker 00:
The rate that you're talking about, that was a rate that the parties agreed to and settled.

[00:01:32] Speaker 00:
Yeah, the parties were part of the action, yes.

[00:01:40] Speaker 00:
The exporter

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Since hardware.

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That rate that was agreed to is not a review of that rate as it being a final determination from commerce.

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This was a settlement rate.

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But that was ultimately agreed to by all parties.

[00:02:02] Speaker 00:
Yes, OK.

[00:02:03] Speaker 00:
OK.

[00:02:04] Speaker 00:
And Congress, as a result, issued the instructions to customs to liquidate at that rate.

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And that, of course, did not occur, which is why we are all here.

[00:02:14] Speaker 00:
Instead, CBP did not follow those instructions.

[00:02:22] Speaker 00:
And ultimately, the edges were liquidated by Operation of Law six months thereafter.

[00:02:31] Speaker 00:
and under 19 U.S.C.

[00:02:33] Speaker 00:
1504B at the 9.4% rate.

[00:02:38] Speaker 03:
Now despite the failures... And just so I'm clear, the 9.4% rate, was that the cash deposit rate or Commerce's initial... Initial determination.

[00:02:53] Speaker 03:
...administrative review determination.

[00:02:56] Speaker 00:
That was the initial determination, yes.

[00:03:01] Speaker 00:
Despite this fact, the entries long to liquidation, which we have consistently contended, were final and conclusive upon all parties absent from a protest or challenge, which, of course, did not occur.

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When the government, according to the attention of the court,

[00:03:31] Speaker 00:
the CIT wanted the liquidation at the higher rate.

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Target then filed a notice of intervention for reconsideration into the vacay, which were denied in the ultimate decision of the CIT in what we've called Home Products 1 in our briefs.

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Then, Target's appeal of that decision

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under 1581i was dismissed on procedural grounds by this court in what we call HB2.

[00:04:10] Speaker 00:
When the court held, we had both that action under 1581i.

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The court said, you have an avenue of relief under 1581a.

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That's where you have to go if you want to make this challenge.

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And that is, of course, what we did.

[00:04:25] Speaker 00:
And we filed that challenge, and ultimately,

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The court issued the decision below, which was a reacquirmation, really, of its decision in Whole Products 1.

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which reaffirmed its earlier decision.

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And we have submitted consistently that both of those decisions are flatly contrary to the decision in CXSA, the U.S., 34 of Fed 1314.

[00:05:02] Speaker 00:
The unanimous decision of this court in that case affirmed the CIT decision.

[00:05:10] Speaker 00:
that the liquidations were final and conclusive upon all persons, including the United States, under 15-14A.

[00:05:22] Speaker 00:
The operative facts, the operative facts in this case and CNX are literally the same.

[00:05:27] Speaker 00:
You have an initial A-B determination and then a final determination at a higher rate.

[00:05:38] Speaker 00:
liquidation at the lower rate by operation of lower curve, and there was no, even though there was still an opportunity for the government to reverse itself, there was no real liquidation within the language aid period that was afforded to the government under Section 1501.

[00:06:03] Speaker 00:
As a result,

[00:06:05] Speaker 00:
the liquidations.

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At that point, law became formal.

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All parties were bounded by that decision, irrespective of the legalities

[00:06:16] Speaker 00:
on the 15th of May.

[00:06:22] Speaker 03:
Can I ask you this question, which is a follow-up to my question about cash deposit versus initial administrative review?

[00:06:33] Speaker 03:
Yeah.

[00:06:34] Speaker 03:
The rate that was mistakenly applied in

[00:06:40] Speaker 03:
CMEX, is that how one says it?

[00:06:43] Speaker 03:
CMEX was a cash deposit rate, not an annual review rate initially arrived at by Commerce that was later in the CIT corrected to be made higher.

[00:06:59] Speaker 03:
In this case, it's the Commerce

[00:07:03] Speaker 03:
annual review rate that eventually, through CIT litigation, resulted in a settlement that that rate should be higher.

[00:07:13] Speaker 03:
Does that make any difference?

[00:07:15] Speaker 00:
I don't think so, Your Honor.

[00:07:16] Speaker 00:
At the end of the day, this really comes down to a straightforward question of statutes of limitations and harness of the liquidation.

[00:07:29] Speaker 00:
And now that the CIT has not followed

[00:07:33] Speaker 00:
the binding precedent of this court in CMAX, but the decision in HPI 1 and the companion case below repeatedly rated the decision of this court in CMAX.

[00:07:48] Speaker 00:
Quote, it said, the court cannot understand the logic or reading of that result.

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and that's in H.P.R.

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1 and page 13, 7 and 7.

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And H.P.R.

[00:07:58] Speaker 00:
1 finds it difficult to understand its conclusion, which is characterized as unfortunate.

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The decision below is a failed attempt to resuscitate H.P.R.

[00:08:13] Speaker 00:
1 with an argument that the court had equitable power to enforce its initial judgment.

[00:08:20] Speaker 00:
And as we have argued consistently in our briefs, the court

[00:08:24] Speaker 00:
certainly has powers in equity and law, but it has no power to disregard the law by using equitable principles.

[00:08:34] Speaker 00:
And it has no power to disregard a decision of this court using equitable considerations.

[00:08:44] Speaker 02:
At the very end of CMAX, this court suggested that in that particular case, ad hoc

[00:08:54] Speaker 02:
could have and should have moved earlier to have the court ensure that the liquidation was being done properly.

[00:09:07] Speaker 02:
So it sounded like the court was suggesting that the domestic producer in that case did have some avenue of relief.

[00:09:21] Speaker 02:
explain why whatever we were suggesting at the very end of the CMEX opinion couldn't be done under this case, the facts of this case?

[00:09:35] Speaker 02:
No, I'm in a loss of this finish, ultimately.

[00:09:40] Speaker 02:
What happened... Do you understand what I'm referring to, the last two paragraphs of the CMEX opinion?

[00:09:45] Speaker 00:
Yeah, I precisely want one point.

[00:09:48] Speaker 02:
Well, first of all, the opinion, I agree with you, seems to quite strongly say that there's a very clear statutory regime here and therefore ad hoc doesn't really have a right to try to get the entries reliquidated under the correct way.

[00:10:13] Speaker 02:
But then at the very end of the opinion,

[00:10:16] Speaker 02:
says that this seemingly harsh result was not unavoidable because ad hoc could have heeded the repeated warning signs and should have moved the court of the international trade to enforce the judgment in 1998 rather than wait till five years later in 2003.

[00:10:39] Speaker 02:
What it appears we're suggesting here is that the domestic producer in this particular case, the CMEX case, which was ad hoc, could have at some point in time earlier than the time that it did seek a relief from the Court of Benefit Trade, in fact go to the Trade Court.

[00:10:58] Speaker 00:
Yeah, there weren't possibilities existing in this case, but at the end of the day, that did not happen.

[00:11:06] Speaker 00:
And that is the ultimate fact that really governs the resolution of this case.

[00:11:10] Speaker 03:
Just to be clear, and it didn't happen because it didn't happen fast enough.

[00:11:16] Speaker 00:
I don't think the decision hinges on speed.

[00:11:19] Speaker 00:
I don't find that anyone in the opinion.

[00:11:24] Speaker 00:
There was no doubt about it, a little period of time, versus a short period.

[00:11:29] Speaker 03:
I'm sorry, just to... I need to be clearer in my mind about some things.

[00:11:34] Speaker 03:
The last, Judge Shen was just talking about the very, very important last paragraph of CMAX, which said Ad Hoc could have done something about this.

[00:11:44] Speaker 03:
What it could have done is, even though it wasn't, right, what it could have done is gone back to the Court of International Trade and moved to enforce the original judgment.

[00:11:56] Speaker 03:
Could have done that in 1998.

[00:11:59] Speaker 03:
That's within the relevant time period.

[00:12:04] Speaker 03:
So that seems to suggest that that party, the domestic challenger, could in fact go to the, quote, an international trade when it sees that there has been an incorrectly low liquidation.

[00:12:26] Speaker 00:
It could do so if it was still within the time frame.

[00:12:30] Speaker 03:
That's what I mean, it being the timing point.

[00:12:33] Speaker 00:
Yeah.

[00:12:33] Speaker 00:
So the problem is, for the domestic industry in both of these cases, is it didn't happen within the time period under the law.

[00:12:45] Speaker 00:
And at the end of the day, statutes of limitations are there for the finality.

[00:12:51] Speaker 00:
You know, the liquidations and everything else that goes up there.

[00:12:54] Speaker 00:
Any time there's a statute of limitations,

[00:12:57] Speaker 00:
Someone's going to be complaining that they didn't get what they were looking for.

[00:13:01] Speaker 00:
That's part of the deal.

[00:13:03] Speaker 00:
But when you look at this case, we had the initial litigation that started in 2006.

[00:13:11] Speaker 00:
We know we had the decision in 2012, HP1.

[00:13:16] Speaker 00:
And then we go on through the subsequent litigation up until today.

[00:13:21] Speaker 00:
We're talking about a long period of time.

[00:13:23] Speaker 00:
And that doesn't even take into consideration

[00:13:26] Speaker 00:
the more administrative period that the case was under consideration by Congress.

[00:13:33] Speaker 00:
So what we're talking about is laws that are enacted by Congress that say there's finality.

[00:13:39] Speaker 00:
And once we decide these things have to happen within a certain time, that's it.

[00:13:46] Speaker 00:
And it's not for the court or anyone else to upset that.

[00:13:52] Speaker 00:
There's a law that this case involves a preliminary injunction

[00:13:55] Speaker 00:
Whether that was all over the map.

[00:13:58] Speaker 00:
I don't think so.

[00:14:01] Speaker 03:
Just to be clear, I mean, was there an injunction in this case, or just an order, the CIT's final order on the agreement of the parties that the correct rate was, what, 70% or something?

[00:14:19] Speaker 00:
No, 72.29.

[00:14:21] Speaker 00:
But there was a preliminary injunction that was still in place, right?

[00:14:25] Speaker 00:
And that stays in place until

[00:14:28] Speaker 00:
We have liquidation, sure.

[00:14:30] Speaker 00:
And the way the court properly uses exactly the power of that room period of time where it decided the case to enjoy liquidation until it solved the case.

[00:14:43] Speaker 03:
And I think, tell me if I'm remembering incorrectly, I think that commerce instruction to customs has a little one-line paragraph saying there is not any longer an injunction on your proceeding.

[00:14:58] Speaker 00:
I don't recall that, but it may be the case.

[00:15:01] Speaker 00:
That would be kind of normal, right?

[00:15:10] Speaker 00:
the appellee's arguments, citing to other cases which it believes are distinguishable from sumac's, it relies primarily on the shimei case.

[00:15:24] Speaker 00:
But I'll address that in my talk, because I see my time undirected is up.

[00:15:29] Speaker 00:
Thank you, Counselor.

[00:15:35] Speaker 01:
Your honors, may I please the court?

[00:15:37] Speaker 01:
Van Der Weene?

[00:15:38] Speaker 01:
Van Der Weene.

[00:15:38] Speaker 01:
Van Der Weene.

[00:15:40] Speaker 01:
That's the Americanized version.

[00:15:42] Speaker 01:
The Dutch version is funnier.

[00:15:43] Speaker 01:
But I don't believe it's that.

[00:15:46] Speaker 01:
Your honors, may I please the court?

[00:15:48] Speaker 01:
When CBP in November of 2019 reliquidated Target's entries at the correct 72.29% rate that was ordered by the court in the home products litigation,

[00:16:03] Speaker 01:
CBP did not make a protestable decision that could be challenged by a target and obtain relief.

[00:16:11] Speaker 01:
In order for there to be a protestable decision, there has to be a decision by customs.

[00:16:18] Speaker 01:
The finality provisions of 1514A hinge on the fact that there's a decision of the custom service that's adverse to the importer.

[00:16:27] Speaker 01:
But when a court orders customs to reliquitate in conformance with its order, there is no decision-making authority on behalf of customs to ignore that court order.

[00:16:38] Speaker 03:
It has to minister.

[00:16:40] Speaker 03:
I'm sorry, but why does that help you?

[00:16:44] Speaker 03:
The safety valve referred to in the last paragraph of CMX was not filing a protest.

[00:16:51] Speaker 03:
It was within a short period of time going back to the trade court.

[00:16:55] Speaker 01:
Because in CEMEX, whatever it may be, there was a protestable decision that the court found in CEMEX.

[00:17:06] Speaker 01:
So in CEMEX, customs decided that the entries had deliquidated by operational law, even though they didn't.

[00:17:14] Speaker 01:
And it acted upon that decision by posting a bulletin notice.

[00:17:18] Speaker 01:
The court found that because there was that protestable decision, now we're in the realm of finality of 1514A.

[00:17:25] Speaker 01:
And 1514A requires that a protest be filed.

[00:17:30] Speaker 03:
And just, am I remembering right?

[00:17:33] Speaker 03:
protestable decision was the 2001 acknowledgement of its 1998 action.

[00:17:41] Speaker 01:
Yes, the court found that to be a protestable decision because even though it was an incorrect interpretation by treating the entries as de-liquidated, even though they had it, but by treating as such and posting that bulletin notice,

[00:17:55] Speaker 01:
In CEMEX, that became a protestable decision.

[00:17:58] Speaker 01:
And now we have a protestable decision under 1514A.

[00:18:01] Speaker 03:
Not protestable by ad hoc?

[00:18:06] Speaker 01:
It can't be protestable by ad hoc because it's a domestic industry.

[00:18:11] Speaker 01:
Only importers have the protest rights.

[00:18:14] Speaker 01:
The domestics didn't.

[00:18:16] Speaker 01:
So in that case, domestic couldn't have protested that.

[00:18:21] Speaker 01:
Only an importer could have protested that bulleted notice.

[00:18:25] Speaker 02:
But the distinguishing... And then the CMEX opinion goes on and says there's also no ability to go through 1516 or 1516A.

[00:18:34] Speaker 02:
Right.

[00:18:35] Speaker 02:
Right, because... In other words, the opinion opines that domestic producers like ad hoc just don't have

[00:18:47] Speaker 02:
any means of relief once a customs decision, a customs liquidation goes final?

[00:18:54] Speaker 01:
Once it becomes final, until we get to the end of the semics decision where the semics court says that it should have brought the issue to the trial court's attention and moved to enforce the judgment at the first signs of the issues going wrong with the liquidations.

[00:19:09] Speaker 02:
And maybe that was because the 1516A action had not yet concluded in 1998?

[00:19:17] Speaker 01:
Well, there's an argument to be made that a 1516A proceeding doesn't end until the reliquidations are made in accordance with the court's order.

[00:19:28] Speaker 01:
That's what the statute says.

[00:19:30] Speaker 02:
Well, that clearly wasn't the way the CMex

[00:19:34] Speaker 02:
court who had understood the law, right?

[00:19:37] Speaker 02:
Right.

[00:19:37] Speaker 01:
That's true.

[00:19:38] Speaker 02:
So, I mean, CMEX basically forecloses any theory like that.

[00:19:42] Speaker 01:
But CMEX, remember, there's a protestable decision in CMEX, and the court found out that there's a disposer for triggering the finality provisions and when a protest needs to be filed to challenge that decision by customs.

[00:19:57] Speaker 01:
Here,

[00:19:58] Speaker 01:
There is no decision by customs.

[00:20:00] Speaker 01:
It's only ministerially implementing the court's order.

[00:20:04] Speaker 01:
If there's no decision by customs, then those finality provisions of 1514A don't apply.

[00:20:10] Speaker 01:
We're not under just these hard and fast like time limits.

[00:20:14] Speaker 01:
Don't liquidations count as decisions?

[00:20:16] Speaker 01:
Liquidations can count as a decision when it's customs at the administrative level that is deciding the rate and classification of duty, appraising the merchandise, all of those decisions.

[00:20:29] Speaker 02:
I keep running back to CMEX.

[00:20:33] Speaker 02:
I have to follow precedent here.

[00:20:36] Speaker 02:
And it felt like to me that in CMEX, whether it was deemed

[00:20:43] Speaker 02:
liquidated or otherwise, what we have here is a decision by commerce, I'm sorry, by customs, that as i.e.

[00:20:54] Speaker 01:
the liquidation.

[00:20:57] Speaker 01:
But in CMEX, the decision was the decision to post the Bolton notice to treat the entries other than how they actually are liquidated by treating them as deliquidated.

[00:21:08] Speaker 01:
Here, there was no decision.

[00:21:10] Speaker 01:
That's the distinguishing factor between this case and CMEX.

[00:21:14] Speaker 01:
There was no decision by customers.

[00:21:17] Speaker 03:
I thought customs read the instructions and said the way we read the relationship between paragraph 2 and paragraph 5 is such that these units actually are not covered by the new 72.29% rate.

[00:21:38] Speaker 01:
In this action, no, there was, it was, custom was just made in a ministerial error.

[00:21:44] Speaker 01:
It liquidated hundreds of entries at the correct negotiated rate of 72.

[00:21:48] Speaker 03:
Right, two and five, one is about exporting, five is about producers, and then there's a question, I guess, about, I don't think I'm,

[00:21:57] Speaker 03:
Am I just making this up entirely?

[00:21:59] Speaker 03:
I thought there was some reason to think that customs thought that the producer only provision, which didn't require the 72.9%.

[00:22:13] Speaker 01:
Customs definitely made an error in implementing those instructions incorrectly.

[00:22:20] Speaker 03:
But isn't a misinterpretation a decision?

[00:22:24] Speaker 01:
But that's not a misinterpretation here.

[00:22:25] Speaker 01:
This is just a clerical error.

[00:22:27] Speaker 01:
This is a clerical error, a mistake.

[00:22:29] Speaker 03:
It's not clerical.

[00:22:31] Speaker 03:
They're misreading the instructions.

[00:22:33] Speaker 01:
But there's no interpretive function there.

[00:22:35] Speaker 01:
Customs doesn't have the authority

[00:22:39] Speaker 01:
to change Congress's instructions.

[00:22:41] Speaker 01:
It doesn't have the authority to contest the court's order into home products.

[00:22:47] Speaker 02:
Did you make this, I don't know, interpretive argument about the meaning of decision?

[00:22:52] Speaker 01:
we didn't address it as head-on as in retrospect.

[00:22:56] Speaker 01:
This is what you're saying now, I guess.

[00:22:58] Speaker 02:
I feel like I'm hearing new things that I don't remember reading in your book.

[00:23:02] Speaker 02:
This is a more... I don't remember Jeff Gordon going on and on about decision in his underlying opinion here.

[00:23:11] Speaker 01:
But it is a key factor that distinguishes Cenex from this case.

[00:23:16] Speaker 01:
Because without a decision, the finality

[00:23:20] Speaker 02:
Provisions of 1514 a don't apply and remember anything and I'm just confused just based on the statute I don't know you know there's a lot of decisions the customs service apparently does trip appraise value of merchandise classification and weight and then you know

[00:23:37] Speaker 02:
liquidation or reliquidation of an entry.

[00:23:39] Speaker 01:
Correct.

[00:23:40] Speaker 01:
And that's when we're at the administrative level where Customs is making those determinations.

[00:23:45] Speaker 01:
Here, they're making a reliquidation in response to a court order.

[00:23:49] Speaker 01:
The court said, Customs, this is the rate that you need to liquidate at.

[00:23:54] Speaker 01:
Customs Service has no discretion or authority to disobey that order.

[00:23:59] Speaker 01:
You can't take an Article III court's order and then at the administrative level say what you need to ignore.

[00:24:06] Speaker 02:
Erroneous liquidation by Customs and CMAX.

[00:24:09] Speaker 01:
Well, but remember, that was a decision.

[00:24:11] Speaker 01:
That was treated as a decision in CMEX to post that bulletin notice and treat the entry other than it was.

[00:24:19] Speaker 01:
It made a conscious choice to treat it in one way or not.

[00:24:22] Speaker 01:
That's what the court found in CEMEX.

[00:24:24] Speaker 01:
Can you explain?

[00:24:24] Speaker 03:
I thought that you all, when you noticed the improperly low rate of liquidation of these units,

[00:24:38] Speaker 03:
concluded that you couldn't do anything about it on your own.

[00:24:42] Speaker 03:
How does that square with your newish point about there wasn't actually a decision?

[00:24:50] Speaker 01:
Well, Your Honor, that's a good point.

[00:24:52] Speaker 01:
What happened was once the issue came to light, when the domestics found that certain entries weren't being liquidated correctly, that there was an error in how customs implemented that liquidation order and instructions from commerce.

[00:25:07] Speaker 01:
there is a window under 19 USC 1501 that on its own customs can make a voluntary reliquidation within a 90 day window that 90 day window of a liquidation and that's not dependent on decision so there's an argument to be made that that window doesn't apply when we're when

[00:25:29] Speaker 01:
calmer i mean i'm sorry not commerce when customs is tasked with implementing the court's order correctly the court ordered it it needs to be liquidated at this duty rate so there's an argument to be made that that window doesn't apply but because that's sort of that's an unsettled area

[00:25:46] Speaker 01:
what customs did in this situation is in an abundance of caution.

[00:25:50] Speaker 01:
It said, we're not going to take that action, but we want to bring it to the court's attention.

[00:25:54] Speaker 01:
And so once it became part of the court's attention.

[00:25:58] Speaker 03:
Just tell me if I'm wrong about this.

[00:25:59] Speaker 03:
I guess my recollection is that there was something

[00:26:02] Speaker 03:
is more definitive along the lines of, we cannot do this on our own.

[00:26:08] Speaker 03:
We need you, the court, to force us to do it.

[00:26:11] Speaker 01:
That was in the status report to the court in home products, yes.

[00:26:14] Speaker 03:
So that's very odd, right, that a court is now

[00:26:21] Speaker 03:
ordering the parties to do something that the statute would otherwise bar.

[00:26:26] Speaker 01:
Well, I don't think it's that the statute would otherwise bar.

[00:26:29] Speaker 03:
Because according to the status report statement.

[00:26:32] Speaker 01:
But the status report statement was just saying, we can't voluntarily do it as an agency.

[00:26:38] Speaker 01:
Right?

[00:26:39] Speaker 03:
I don't understand why those words are any different from, we can't do it voluntarily as an agency because the statute prohibits us from doing it.

[00:26:50] Speaker 01:
your honor i agree with you i think that the customs shouldn't be barred by that statute within the ninety-day window or otherwise of reliquiting in accordance with the court's order the court has to do with doing something it could have done it at any point i don't think that the ninety-day window binds it i'm just walking back to what the agency was thinking at that time the whole product's litigation the way the case comes to us

[00:27:14] Speaker 03:
is as a case in which it's accepted, it was accepted at least until oral argument, that the statute prohibited customs from reliquidating at this point.

[00:27:32] Speaker 03:
And the court said,

[00:27:34] Speaker 03:
But we can force you to do that even though you can't do it by statute on your own.

[00:27:43] Speaker 03:
What prior example is that?

[00:27:47] Speaker 03:
Is there of a court having that power?

[00:27:50] Speaker 03:
And I don't mean just the trade court.

[00:27:53] Speaker 03:
The trade court has a constitutional overlay, obviously.

[00:27:57] Speaker 01:
When we look at, we said it in our brief in Peacock and in Heartland, it's just that the court has ancillary jurisdiction.

[00:28:03] Speaker 01:
There's an inherent power to enforce its judgments.

[00:28:05] Speaker 03:
Contrary, even when doing so at that time would be contrary to a statute?

[00:28:10] Speaker 01:
But there's nothing contrary to the statute here, though.

[00:28:14] Speaker 01:
Because remember that the statute

[00:28:16] Speaker 01:
only requires that the statute of 1514A about finality has to do with a protestable decision on custom's part.

[00:28:25] Speaker 01:
If there's no protestable decision by customs, we're out of the realm of 1514A.

[00:28:30] Speaker 01:
And what's left to be done is to reliquitate those entries in conformance with the court's order.

[00:28:37] Speaker 01:
That's how 1514A preceding court included.

[00:28:39] Speaker 02:
1514 would recognize other statutory exceptions, like 1501, which is

[00:28:44] Speaker 02:
Customs can within 90 days after a liquidation do a reliquidation on its own.

[00:28:48] Speaker 02:
It also talks about the rest of 1514, talks about 1516A, 1516.

[00:28:56] Speaker 02:
There's other statutorily designed exceptions to finality, but outside of those exceptions, the statute very clearly says

[00:29:07] Speaker 02:
the liquidation shall be final and conclusive upon all persons, including the United States.

[00:29:12] Speaker 02:
That's correct.

[00:29:13] Speaker 02:
That's what CMEX worked off of to make the conclusion that it did, that the domestic producer in that particular case just had no way out or no way in, that is to say, to try to get the original

[00:29:29] Speaker 01:
judgment of the rate enforced.

[00:29:31] Speaker 01:
And that hinges upon the court's finding that there was a protestable decision in that case.

[00:29:36] Speaker 01:
Because that's why 1514A applies in CEMEX, but we submit it doesn't apply here.

[00:29:41] Speaker 00:
When you say protestable decision, are you referring to that formal agency procedure by which an employer will formally protest or can choose not to protest liquidation?

[00:29:56] Speaker 01:
Right.

[00:29:56] Speaker 01:
So let's say at the administrative level, there's an entry that comes in.

[00:30:01] Speaker 01:
Customs reviews the entry and finds that the rate and classification of the entry should be x. The importer disagrees and say, no, that's incorrect.

[00:30:11] Speaker 01:
It should be y. We're going to protest that decision, right?

[00:30:15] Speaker 01:
Here, there's a totally different procedural posture because we're in the realm of a familiarity

[00:30:21] Speaker 00:
statutory provisions address the protest process.

[00:30:28] Speaker 00:
Right.

[00:30:29] Speaker 00:
And protestable decisions.

[00:30:30] Speaker 01:
And remember, the protestable decisions adverse to the importer, which now the importer is protesting, and then it summons the denial of that protest to the Court of International Trade.

[00:30:40] Speaker 02:
What if customs here instead of, you know, doubled the rate by accident?

[00:30:46] Speaker 02:
Wouldn't that be a protestable decision?

[00:30:49] Speaker 02:
But again, there was no importer at that point say, wow, you overshot the rate by 100%.

[00:30:57] Speaker 02:
I'm protesting.

[00:30:59] Speaker 02:
But again, there's

[00:31:01] Speaker 01:
If customs, if they're not making a decision, if they're just... Well, I'm asking you a question.

[00:31:07] Speaker 01:
Wouldn't that be a protestable decision?

[00:31:10] Speaker 01:
A protestable decision has to be adverse to the importer.

[00:31:13] Speaker 01:
I'm identifying an example where it is adverse to the importer.

[00:31:18] Speaker 03:
140%.

[00:31:20] Speaker 03:
Suppose if it said 140%.

[00:31:21] Speaker 02:
Right, right.

[00:31:23] Speaker 03:
But again, that's a decision.

[00:31:25] Speaker 03:
But obviously incorrect.

[00:31:27] Speaker 01:
But why?

[00:31:28] Speaker 01:
But this court has long held in other cases that when there's an error in implementing commerce instructions or court order reliquidating at a certain rate, that's just an error in the ministerial function of customs.

[00:31:42] Speaker 01:
That's not a decision.

[00:31:43] Speaker 03:
It's protestable?

[00:31:44] Speaker 01:
It's only protestable if there's some sort of

[00:31:49] Speaker 01:
you know, action that Customs is taking, whether it's making some sort of interpretive feats or doing X, Y, Z. So in Judge Chen's example, Customs says, I read this, it says 70%.

[00:32:03] Speaker 03:
I hear my liquid date at 140%.

[00:32:06] Speaker 01:
That is an error.

[00:32:08] Speaker 01:
And you are protestable.

[00:32:11] Speaker 01:
What can happen in this case is because, again, it's a ministerial error.

[00:32:15] Speaker 01:
That's just something that the agency made an error in implementing that.

[00:32:19] Speaker 01:
That doesn't mean that there's no path to redress in that situation.

[00:32:23] Speaker 02:
We're still talking about this novel argument about how not all liquidations are equal, and some liquidations are decisions, and other liquidations are not decisions.

[00:32:36] Speaker 02:
I cannot follow it.

[00:32:37] Speaker 02:
I don't understand it.

[00:32:39] Speaker 01:
If Your Honor would like, I would be happy to provide supplementary briefing on that point.

[00:32:46] Speaker 00:
I believe I'm out of time.

[00:32:47] Speaker 00:
You're out of time.

[00:32:48] Speaker 00:
Thank you.

[00:32:48] Speaker 00:
Thank you, Chancellor.

[00:32:52] Speaker 00:
Mr. Gill, you have five minutes.

[00:32:54] Speaker 00:
Thank you, Your Honor.

[00:32:56] Speaker 00:
I want to address the key issue that came out of the reply here.

[00:33:03] Speaker 00:
with regard to liquidation being a decision.

[00:33:09] Speaker 00:
A liquidation of an entry is a final decision by customs.

[00:33:14] Speaker 00:
It is the quintessential decision that is the subject of virtually all customs protests that end up in the court of international trade.

[00:33:26] Speaker 00:
It is in the statute itself, 514,

[00:33:31] Speaker 00:
liquidation is considered and mentioned specifically as the operative decision that is protestable under 514.

[00:33:40] Speaker 00:
So it is pure fiction, in my opinion, to argue that a liquidation is not a decision and therefore not protestable.

[00:33:48] Speaker 00:
It is a highly protestable event.

[00:33:52] Speaker 00:
And then, if I may, on all the other points, which I think your honors got to,

[00:33:57] Speaker 00:
Whether it's being liquidated or otherwise, as Judge Shen pointed out, it clearly doesn't matter.

[00:34:06] Speaker 00:
There's two ways these things can get liquidated, by operation of law or by actual physical action taken by customs in liquidating the entries.

[00:34:16] Speaker 00:
But at the end of the day, what Congress has said, you've got a period of time to file a protest.

[00:34:24] Speaker 00:
And once that period expires,

[00:34:27] Speaker 00:
the liquidations, the decisions in liquidation, or enter into that liquidation, are final and are covered by parties.

[00:34:38] Speaker 00:
And again, I would point out the attempt, the solid attempt to distinguish the Shinye case, which was decided only about five months before

[00:34:52] Speaker 00:
the CMX case held consistently that a decision by commerce is not a protestable event.

[00:35:04] Speaker 00:
It's only, and therefore they got thrown out because they tried to bring an action with 1581i.

[00:35:11] Speaker 00:
But what the court said and made very clear is that while a decision by commerce is not protestable, a decision by customs is, and it's the ultimate decision that can be protested.

[00:35:25] Speaker 00:
And I'd have to say

[00:35:27] Speaker 00:
that distinction in Shinye really answers all of the questions that come up.

[00:35:33] Speaker 00:
And the panel that decided that case was Chief Judge Michele and two other judges who were the same judges who decided the CMAX case.

[00:35:44] Speaker 00:
So it would be far-fetched to suggest that they were not aware of CMAX and the distinction between what is protestable and what is not protestable.

[00:35:54] Speaker 00:
If there are no further questions from the court,

[00:35:57] Speaker 00:
I think I've made my peace.