[00:00:00] Speaker 04:
The next case for argument is 24-2059, performance additives versus United States.

[00:00:08] Speaker 02:
Well, gentlemen, we meet again.

[00:00:11] Speaker 03:
Thank you.

[00:00:12] Speaker 03:
The last two times I argued before the court, I asked for an accommodation to address the court seated.

[00:00:19] Speaker 03:
But I'm going to try standing this time.

[00:00:22] Speaker 02:
Whatever makes you most comfortable.

[00:00:24] Speaker 03:
Thank you.

[00:00:26] Speaker 03:
May it please the court?

[00:00:27] Speaker 03:
This case presents a straightforward question of statutory interpretation.

[00:00:32] Speaker 03:
The question is whether when, in 2004, Congress, in the Miscellaneous Trade and Corrections Act, established a one-year limitation for liquidating drawback claims subject to up to three one-year amendments for a total of four years.

[00:00:48] Speaker 02:
I have some factual questions as well as legal ones, Mr. Peterson.

[00:00:51] Speaker 02:
The court, the CIT, noted on July, and I'm quoting her,

[00:00:55] Speaker 02:
On July 28, 2020, Customs advised Performance that its drawback privileges were suspended.

[00:01:03] Speaker 02:
Why?

[00:01:03] Speaker 03:
Why were they suspended?

[00:01:05] Speaker 03:
I think because they had concerns about the underlying merits of the case.

[00:01:10] Speaker 03:
But the privileges are not involved in this appeal.

[00:01:14] Speaker 02:
I was just curious about it.

[00:01:18] Speaker 02:
For the drawback claim at issue in this appeal,

[00:01:21] Speaker 02:
When did customs purport to liquidate it, and where's that date in the record?

[00:01:25] Speaker 03:
Because it seems if.

[00:01:27] Speaker 03:
The drawback claim was filed on March 10 of 2020.

[00:01:29] Speaker 03:
The one year anniversary on which the deemed liquidation should have occurred is March 10, 2021.

[00:01:38] Speaker 03:
Customs liquidated the entry on May 14, 2021 without drawback.

[00:01:43] Speaker 03:
So that was beyond the one year anniversary for deemed liquidation specified in the statute.

[00:01:49] Speaker 02:
Where does the other date come up, then?

[00:01:52] Speaker 02:
In the red brief, they say April 30.

[00:01:56] Speaker 02:
I'm not sure of the significance of an April 30 date, Your Honor.

[00:02:02] Speaker 02:
CPB liquidated the drawback claimant, the amount of zero drawback.

[00:02:06] Speaker 02:
I'm quoting from the red brief on April 30, 2021.

[00:02:10] Speaker 03:
If the April 30 date is the liquidation date, Your Honor, it would still be on the one-year anniversary date.

[00:02:14] Speaker 03:
I understand that, but I'm asking about that.

[00:02:18] Speaker 02:
the discrepancy in the data?

[00:02:19] Speaker 03:
There were some discrepancies in customs records.

[00:02:22] Speaker 03:
The automated commercial environment numbers did not always line up.

[00:02:26] Speaker 03:
But it's clear and undisputed that when they liquidated this claim no drawback, it was passed the one year anniversary specified by statute.

[00:02:36] Speaker 02:
On page seven of your blue brief, footnote three, you cite to appendix 27

[00:02:42] Speaker 02:
for support to your proposition about how customs styled its May 14, 2021 action.

[00:02:48] Speaker 02:
I don't see any support on page 27.

[00:02:56] Speaker 03:
Well, in the appendix, the record shows that that was the date they recorded as the date of liquidation.

[00:03:05] Speaker 03:
Now, the question was, was that reliquidation?

[00:03:08] Speaker 03:
And the answer is it was not.

[00:03:10] Speaker 03:
They did not note any deemed liquidation on the anniversary date of March 10.

[00:03:16] Speaker 03:
And so there was no reliquidation.

[00:03:20] Speaker 03:
First, the liquidation was noted.

[00:03:22] Speaker 02:
Page 27 is a list of actions.

[00:03:29] Speaker 02:
We're on the same page.

[00:03:30] Speaker 02:
Oh, OK.

[00:03:38] Speaker 02:
And on what line would this be?

[00:03:40] Speaker 02:
I can't tell you what line.

[00:03:42] Speaker 02:
What you say is it supports your proposition about how customers styled its action.

[00:03:48] Speaker 02:
And I don't see anything that shows how they styled it.

[00:03:51] Speaker 02:
That's all.

[00:03:52] Speaker 03:
I believe, Your Honor, this may be not a record of the liquidation of the drawback claim, but rather a liquidation of the import entries that were included in the drawback claim.

[00:04:05] Speaker 02:
How does that answer my question, though, Ms.

[00:04:07] Speaker 02:
Page?

[00:04:10] Speaker 02:
I'm just looking for support for what you said in the brief.

[00:04:15] Speaker 02:
And again, the specific issue?

[00:04:17] Speaker 02:
You cited page 27 to support your proposition about how customs styled its May 14, 2021 action.

[00:04:26] Speaker 02:
That's at page 7 of your blue brief.

[00:04:28] Speaker 03:
Well, right.

[00:04:28] Speaker 03:
I mean, this is what we're looking at in page 27, is we're looking at a liquidation record.

[00:04:34] Speaker 03:
Not a reliquidation record.

[00:04:35] Speaker 03:
I see what you're saying.

[00:04:36] Speaker 03:
OK.

[00:04:37] Speaker 03:
Gotcha.

[00:04:37] Speaker 03:
There had been no prior liquidation.

[00:04:39] Speaker 03:
So this is not reliquidation.

[00:04:41] Speaker 03:
This is the initial liquidation of the claim.

[00:04:42] Speaker 03:
I see what you're saying now.

[00:04:44] Speaker 03:
Thank you.

[00:04:44] Speaker 04:
Can I ask you about the statute?

[00:04:48] Speaker 04:
When does, well, firstly, were the entries here in this case, in this circumstance, before the one-year clock was out, were those entries liquidated and final by the one-year date?

[00:05:03] Speaker 03:
All of the import entries were liquidated.

[00:05:07] Speaker 03:
Some of them were not final in the government's view, because they had not been liquidated for 180 days and were not beyond the statutory process.

[00:05:15] Speaker 04:
OK, so except that is correct, that they were not all liquidated and final by that one year time.

[00:05:23] Speaker 04:
Yes.

[00:05:23] Speaker 04:
OK, so if we accept that.

[00:05:26] Speaker 04:
What else does B mean other than covering that circumstance?

[00:05:32] Speaker 04:
Doesn't B expressly cover that circumstance?

[00:05:37] Speaker 03:
No.

[00:05:37] Speaker 03:
B is a separate standalone provision.

[00:05:40] Speaker 04:
Well, what it says is it's not standalone.

[00:05:44] Speaker 04:
In fact, it's so mushed up with the others that A references B right up front, except as provided in B. So when you have these two provisions, except as,

[00:05:55] Speaker 04:
They're not standalone, obviously.

[00:06:00] Speaker 04:
A is only read in connection with what's accepted under B. So I'm trying to figure out what's under B. Well, I don't think they're interconnected, because there's also a reference to C, which is a transitional product.

[00:06:12] Speaker 04:
I don't think it's worth arguing about whether they're connected or interconnected.

[00:06:15] Speaker 04:
Just bear with me.

[00:06:17] Speaker 04:
In B, doesn't that perfectly describe the circumstance in this case at the one-year mark that not all of the underlying entries had been liquidated and became final?

[00:06:29] Speaker 03:
Well, that's correct.

[00:06:31] Speaker 03:
But this is the central error that we're discussing here, is the Court of International Trade read subsection B as a general limitation on the rule of deemed liquidation in subsection A. And I am saying it is not a general exception.

[00:06:49] Speaker 03:
It is a separate proceeding.

[00:06:51] Speaker 03:
separate process, individual, you know, separate from A. So for example.

[00:06:56] Speaker 04:
But if B covers the circumstance here, I don't understand what your issue.

[00:07:01] Speaker 04:
Do you think the circumstance here is covered by both A and B?

[00:07:06] Speaker 04:
By both of them?

[00:07:07] Speaker 03:
In this case, B doesn't operate, because when we got to the one-year anniversary, we had no unliquidated entries.

[00:07:13] Speaker 04:
Well, I thought we just concluded that the language of B precisely describes the situation in this case.

[00:07:19] Speaker 04:
No.

[00:07:22] Speaker 04:
Not all of the import entities had been liquidated and became final within the one year described in paragraph A. Doesn't that exactly describe what we're dealing with in this case?

[00:07:34] Speaker 03:
No, Your Honor, because section B operates independently from subsection A. So for example.

[00:07:41] Speaker 01:
Even if we give you that they're independent, why is B not applicable here?

[00:07:45] Speaker 01:
Can you just answer that question?

[00:07:46] Speaker 03:
Well, B is not applicable here for a couple of reasons.

[00:07:48] Speaker 03:
First of all, the title of B is unliquidated entries.

[00:07:52] Speaker 03:
By the time we got to the anniversary date of our claim, we did not have any unliquidated entries.

[00:08:00] Speaker 03:
So you can't say that B operated somehow.

[00:08:03] Speaker 01:
That's the title, but the text says liquidated and final.

[00:08:07] Speaker 01:
And you've conceded your import entries here had not all been liquidated and final, correct?

[00:08:14] Speaker 03:
But that language appears in B. It does not appear in A. OK.

[00:08:18] Speaker 01:
We're trying to understand your argument for why B does not apply.

[00:08:22] Speaker 03:
B does not apply.

[00:08:23] Speaker 03:
Well, it doesn't apply in this case, because when we came to the out, we had not triggered it.

[00:08:28] Speaker 03:
We had not tried to make an application under it.

[00:08:31] Speaker 03:
When the one-year anniversary of our claim occurred, it really wasn't available to us, because we did not have any unliquidated entries.

[00:08:39] Speaker 02:
OK, explain to me, Mr. Peterson, what Congress meant when they used this language.

[00:08:45] Speaker 02:
Except as provided, this is at the very beginning of A, except as provided in subparagraph B.

[00:08:53] Speaker 02:
What did they mean?

[00:08:54] Speaker 03:
They meant that you would be subject to the one year anniversary unless you did something to get your drawback claim to liquidate apart from the one year anniversary.

[00:09:05] Speaker 03:
Now, that could have been an affirmative liquidation by customs before the one year anniversary.

[00:09:11] Speaker 03:
Or if I had unliquidated entries, let's say six months after I filed my claim, I could make an application under B and get a deemed liquidation.

[00:09:22] Speaker 03:
not withstanding the fact that my import entries were unliquidated.

[00:09:26] Speaker 03:
So the fact of having unliquidated import entries is never a bar to getting your drawback paid.

[00:09:33] Speaker 03:
And what's really interesting, I think we compared the regulation as it existed before Congress enacted the 2004 Act.

[00:09:41] Speaker 02:
But that one year, you agree that it says accept is provided in subparagraph B. And then B says,

[00:09:51] Speaker 02:
have not been liquidated and become final within the one-year period described in subparagraph A. Now, when it says become final within the one-year period described in subparagraph A, doesn't that kick back to the language except as provided in subparagraph B?

[00:10:14] Speaker 03:
No.

[00:10:14] Speaker 03:
Again, subheading B stands on its own.

[00:10:17] Speaker 03:
It would let me compel a deemed liquidation before my answer.

[00:10:21] Speaker 02:
You think it stands on its own, but the congressional language intertwines them both ways.

[00:10:26] Speaker 03:
Well, again, if you read it that way, the congressional language would intertwine C. And C is totally standard.

[00:10:32] Speaker 03:
Not necessarily.

[00:10:34] Speaker 03:
No, C was a transition provision.

[00:10:37] Speaker 03:
operated before A even started operating.

[00:10:40] Speaker 04:
Is it your position that what happened here is under both A or B, or it's not under B at all?

[00:10:47] Speaker 03:
It's not under B at all.

[00:10:48] Speaker 04:
But haven't we gone through the language of B to demonstrate that it's describing in detail exactly what the situation is here?

[00:10:56] Speaker 04:
Well, the situation here is we- How is it not covered by the situation in B?

[00:11:00] Speaker 04:
Leaving aside what A says, how is this not precisely what went down?

[00:11:04] Speaker 03:
Because B has to be triggered by an application from the drawback claimant.

[00:11:09] Speaker 03:
The drawback claimant has to have paid estimated duties and must make a request for customs to liquidate the entry of the drawback claim on the basis of the estimated duties.

[00:11:22] Speaker 03:
We never triggered B. We never did that.

[00:11:25] Speaker 03:
We simply let our claim get to the one year anniversary.

[00:11:29] Speaker 03:
And at that point, it should have been deemed liquidated.

[00:11:33] Speaker 01:
So what's your response to that?

[00:11:34] Speaker 01:
The government says if that's the way the statute is read, you could potentially, I think they call it double dipping, because you could maintain a protest to the import entries and keep them from finalizing.

[00:11:48] Speaker 01:
get deem liquidated or deem final, I forget, your drawback entries and recover the drawback and then recover through the import entries.

[00:11:58] Speaker 03:
Oh, you could only recover once and there's a customs regulation.

[00:12:01] Speaker 03:
There's a customs regulation which says how you adjust

[00:12:06] Speaker 03:
if the import entries liquidate at a different amount.

[00:12:09] Speaker 03:
If they liquidate at a higher amount, the claimant pays 1% of the difference to customs.

[00:12:14] Speaker 01:
There'd at least be nothing in the statute on your reading that would prevent the double dipping.

[00:12:19] Speaker 03:
Yeah, the regulations prevent the double dipping.

[00:12:23] Speaker 03:
The problem with the government's... Let's go back to your statutory interpretation.

[00:12:29] Speaker 02:
You say,

[00:12:31] Speaker 02:
that if B is implicated, C must necessarily be implicated.

[00:12:36] Speaker 02:
Am I correct?

[00:12:36] Speaker 03:
Well, no.

[00:12:37] Speaker 03:
C was totally standalone as well.

[00:12:39] Speaker 03:
OK.

[00:12:40] Speaker 03:
But the problem, if I may, with the government's interpretation is this.

[00:12:43] Speaker 02:
So drop your C discussion altogether.

[00:12:46] Speaker 02:
Pardon?

[00:12:46] Speaker 02:
Drop your C discussion altogether.

[00:12:49] Speaker 03:
Yeah.

[00:12:49] Speaker 03:
Well, C was adjudicated in the Ford Motor case.

[00:12:52] Speaker 03:
But here's the problem with the government's position.

[00:12:56] Speaker 03:
Hear me out.

[00:12:57] Speaker 03:
Under their view, if they don't have a de-impliquidation,

[00:13:01] Speaker 03:
at the one year anniversary, because all the underlying import entries are not liquidated, quote, and final, that according to the government, the entire deemed liquidation statute does not apply.

[00:13:14] Speaker 03:
These entries, which constitute most drawback entries, are never subject to a time to liquidation.

[00:13:22] Speaker 03:
That's not what Congress intended in 2004.

[00:13:24] Speaker 03:
That's not true.

[00:13:26] Speaker 03:
It is true, because

[00:13:28] Speaker 03:
If you note in our main brief, we make reference to a 2019 government accountability study of drawback, where the drawback centers were saying, we have a backlog, and it will take us five more years to work through the backlog.

[00:13:43] Speaker 03:
That's not what Congress intended.

[00:13:45] Speaker 03:
Congress intended.

[00:13:46] Speaker 03:
a four-year liquidation limit for drawback plans, exactly as they do for import entries.

[00:13:52] Speaker 03:
And they said so in so many words.

[00:13:54] Speaker 04:
Well, why don't we hear from the government, and we'll save your rebuttal time.

[00:13:59] Speaker 03:
All right.

[00:13:59] Speaker 03:
Thank you, Your Honor.

[00:14:16] Speaker 00:
Your Honors, may it please the court?

[00:14:17] Speaker 00:
The trial court's interpretation of the statute at issue accords with the plain terms of the statute.

[00:14:22] Speaker 04:
OK, can I just cut to the chase?

[00:14:24] Speaker 00:
Of course.

[00:14:26] Speaker 04:
Because some of us, if all of us, may think that the statute on its face is clear enough.

[00:14:30] Speaker 04:
But if we wanted to be extra, extra clear, am I correct that your reading of A, they would have inserted that all the designated import entries are liquidated and final by this date?

[00:14:45] Speaker 00:
Yes, by the year after filing the claim.

[00:14:47] Speaker 04:
So as the trial court... So you're implicitly reading that into A.

[00:14:51] Speaker 00:
So A, because A, first of all, as discussed previously, accept as provided in subparagraph B or C. So now A applies if B or C doesn't.

[00:15:01] Speaker 00:
So now we're looking at B. And B specifically directs us in the instance in this case here, have the import entries on the year after the period described in subparagraph A, which is one year from the date of the filing of the drawback claim, have all the underlying import entries, have they become liquidated, and final,

[00:15:21] Speaker 00:
So as the trial court rightly positioned this case is, what we're looking at in a claim is on the year anniversary of the filing of the claim, have all the underlying import entries become liquidated and final.

[00:15:33] Speaker 00:
If they have, and if Customs has an affirmatively liquidated that drawback claim by that point, then it becomes deemed liquidated under big A. Big A.

[00:15:43] Speaker 00:
But if all, and there's good reason for that as well too, because if all, if there are no outstanding questions for the import entries that are being used as the basis to claim drawback, we know that those liabilities are fixed.

[00:15:56] Speaker 00:
They're not subject to an ongoing protest or administrative action or court challenge.

[00:16:02] Speaker 00:
there's no danger then of just those amounts now being potentially refunded as are being paid out to the drawback claimant and also to the importer a sort of double payment right because all those liabilities have been fixed under a a prod CBP that if you don't affirmatively liquidate when all the underlying entries are final within that year and

[00:16:25] Speaker 04:
Then it will team liquidate by at the amounts asserted by the claimant So you agree I mean it could have been clearer if they had put that precise language in a but your position is that's not necessary because Clear it can't be you can always be clearer But since a is what's not in B B makes clear what it is so that brings us back to so now we know what a is covering

[00:16:48] Speaker 00:
Exactly.

[00:16:49] Speaker 00:
The statutes reference each other, except as provided in subparagraph B or C. They both refer back to the same one-year period.

[00:16:58] Speaker 00:
There's no elective preference of the claimant in here.

[00:17:02] Speaker 00:
It doesn't say, well, you could choose A, or you could choose B, or you could choose C. It says, no.

[00:17:06] Speaker 00:
We look to B to see if B or C applies first.

[00:17:09] Speaker 00:
And then, if it does not, then potentially we're under A, depending on the circumstances.

[00:17:15] Speaker 04:
I had the same, it's just a little point, but I had the same question that Judge Wallach asked earlier about

[00:17:20] Speaker 04:
this April 30, 2021 date.

[00:17:23] Speaker 04:
And it's in the opinion below at page 13.

[00:17:28] Speaker 00:
So it's a little confusing because there were two claims down below before the trial court.

[00:17:32] Speaker 00:
Only one is on appeal.

[00:17:34] Speaker 00:
The one that's on appeal is the first claim, and that claim CBP liquidated on April 30, 2021.

[00:17:41] Speaker 00:
The May 14 was claim two, which is not the subject of this appeal.

[00:17:45] Speaker 00:
I think that's where the confusion lies.

[00:17:47] Speaker 04:
And they want to move back.

[00:17:49] Speaker 04:
They want the March date rather than the April date, because that's the consequence of their getting something or not getting something.

[00:17:56] Speaker 00:
So the claim was filed on March 10, 2020.

[00:17:59] Speaker 00:
So under their reading of the statute, by March 20, 2021, full stop, because that's before the April 30th date, that's a year after the claim was filed.

[00:18:09] Speaker 00:
Their argument is that it will then therefore deem liquid under A. But then that reads out,

[00:18:16] Speaker 00:
B, which applies here, because the underlying entries, which are the subject of their claim, they didn't all liquidate and become final within the year period.

[00:18:26] Speaker 04:
But it's just on the ground consequences.

[00:18:29] Speaker 04:
The difference between what they're seeking here and this April 30 date is a big deal.

[00:18:34] Speaker 04:
Because on April 30, they got zero.

[00:18:37] Speaker 00:
They got zero.

[00:18:38] Speaker 04:
It's a finding of zero.

[00:18:39] Speaker 04:
Whereas if they were under A, they would have gotten

[00:18:42] Speaker 04:
Arguably, the whole shebang?

[00:18:44] Speaker 00:
Well, no, not necessarily.

[00:18:45] Speaker 00:
Well, yeah, if it did fall under A, yes, because then there's that, once again, A is there, that if all the liabilities are fixed on the import entries.

[00:18:54] Speaker 04:
That would have never been true, because all of the entries weren't liquidated and final.

[00:18:58] Speaker 00:
And so then what B provides.

[00:19:00] Speaker 02:
Logically, if it fell.

[00:19:01] Speaker 02:
If it fell under A, it would mean that the situation here didn't exist.

[00:19:05] Speaker 00:
Exactly.

[00:19:06] Speaker 00:
Exactly.

[00:19:07] Speaker 00:
And B provides the safeguard in that situation where the claimant, if there are any non-final entries, it could still seek to get that claim deliquidated by operation of a law.

[00:19:19] Speaker 00:
But what it has to do is it has to comply with the safeguards of that statutory provision and its implementing CBP regulations.

[00:19:26] Speaker 00:
which is both the importer and the claimant saying that we are not going to seek any other payment other than what could be paid out on the drawback claim.

[00:19:35] Speaker 04:
That's the waiver part of being.

[00:19:37] Speaker 00:
That's the waiver part.

[00:19:38] Speaker 00:
You need that safeguard because then otherwise runs the potential risk of a drawback claim being paid out to a claimant.

[00:19:46] Speaker 00:
And then on the import entries, on the import side, if those entries are still non-final because of a pending administrative protest or court action or suspension,

[00:19:56] Speaker 00:
or what have you, if that's ultimately resolved in the importer's favor, well, then you've already paid out the drawback claim, and now you're potentially refunding the duties to the importer as well, the double payment.

[00:20:09] Speaker 01:
Mr. Peterson says that's covered by regulations, so don't worry about it.

[00:20:14] Speaker 00:
The reason why we need to not worry about it is under B, you need to assure customs that you're not going to be paid on that.

[00:20:21] Speaker 00:
You're waiving your right to those payments.

[00:20:23] Speaker 01:
That's the assurances.

[00:20:25] Speaker 01:
There's no other statutory requirement that you waive that.

[00:20:29] Speaker 01:
And on his view, we would lose that statutory protection.

[00:20:32] Speaker 00:
The statutory protection right there is B. That is the statutory protection to guard against that scenario.

[00:20:38] Speaker 01:
What do you say about the heading of B only referring to unliquidated imports and not unliquidated and non-final?

[00:20:45] Speaker 00:
Yeah.

[00:20:46] Speaker 00:
Could it have been clearer if it said unliquidated and non-final in the heading of B?

[00:20:51] Speaker 00:
Yes.

[00:20:52] Speaker 00:
But B specifically refers to import entries that have not liquidated and become final.

[00:20:58] Speaker 00:
The text of the statute makes it clear that we're looking at

[00:21:01] Speaker 00:
non-final.

[00:21:03] Speaker 00:
And the finality, again, it's important because we don't know if the underlying import entries, if they're non-final, maybe that amount changes that could potentially be owed or refunded or collected on those underlying import entries.

[00:21:15] Speaker 00:
That's why we need that safeguard to waive collection on those import entries.

[00:21:20] Speaker 01:
And what about C?

[00:21:20] Speaker 01:
I know it factually doesn't apply here, but does it have relevance to the statutory interpretation and whether A and B are hermetically sealed, for instance?

[00:21:29] Speaker 00:
I think, once again, we go back to that first clause of A, except it's provided in subparagraph B or C. So now we're seeing, does B apply to this scenario?

[00:21:37] Speaker 00:
Here it does.

[00:21:39] Speaker 00:
Potentially in another scenario where an entry or claim is filed before that operative data in C, then we'd be under C. So again, we only get to A if B or C doesn't apply based on the except clause of A.

[00:21:50] Speaker 01:
And the gray brief at 16, note 19, it says, under your logic, drawback claimants wishing to have the statutory time limits applied to their claims would be best served by filing their applications under B for deemed liquidations as soon as they file their claims.

[00:22:09] Speaker 01:
And this would overload the already stressed system.

[00:22:13] Speaker 01:
What's your response to that?

[00:22:14] Speaker 00:
But B specifically refers to, as the trial court reconciled these provisions and interpreted these provisions, you're looking at the status of those import entries a year after they're filed.

[00:22:25] Speaker 00:
Because if those import entries are liquidated and finaled, then we're under A. And if they're not, they're B. You can't file before.

[00:22:31] Speaker 00:
We need to know what the status of those import entries are on the year anniversary.

[00:22:35] Speaker 00:
So if on the year anniversary, if performance is claimed, all the underlying import entries have not liquidated and become final, then it could request a waiver at that.

[00:22:45] Speaker 00:
It could request the deemed liquidation that would be at that time, submit the necessary waivers by both the claimant and the importer to assure that there will be no double payments.

[00:22:53] Speaker 00:
So we need to look at it.

[00:22:56] Speaker 00:
The provision necessarily requires that year period, and then looking at the status of those underlying entries on that year period.

[00:23:04] Speaker 00:
It's not something to be invoked before.

[00:23:06] Speaker 00:
It's to be something to see whether it operates on the year after the claim has been filed.

[00:23:13] Speaker 02:
Mr. Vanderweeg, performance says there are no disputed factual issues.

[00:23:19] Speaker 02:
Leaning aside the confusion about the dates, do you agree there are none?

[00:23:23] Speaker 00:
Yeah, there are no disputed factual issues.

[00:23:25] Speaker 00:
This is just statutory interpretation.

[00:23:27] Speaker 04:
And by the one year anniversary, some of the entries had been liquidated in final, but not all.

[00:23:32] Speaker 00:
Right, because there were 48 import entries.

[00:23:36] Speaker 00:
And they became final 180 days later between November 25, 2020 and May 26, 2021.

[00:23:45] Speaker 00:
And so a year after the claim was filed, March 10, 2020, would be March 10, 2021.

[00:23:51] Speaker 00:
So there was a period of about two and a half months there.

[00:23:56] Speaker 00:
Yeah, about two and a half months.

[00:23:58] Speaker 04:
And you read into the statute that all of the import entries, that you can't slice and dice and say if some were, it's OK.

[00:24:07] Speaker 00:
Right.

[00:24:07] Speaker 00:
As long as one.

[00:24:08] Speaker 00:
As long as one is because the drawback claim is based on those amounts.

[00:24:12] Speaker 00:
We can't just have unreconciled or unknown liabilities on those underlying import entries.

[00:24:18] Speaker 00:
The claim needs to cover all of the import entries.

[00:24:20] Speaker 04:
I don't remember the briefing as well.

[00:24:22] Speaker 04:
I'm sorry.

[00:24:23] Speaker 04:
It's Thursday.

[00:24:25] Speaker 04:
Has this issue of A versus B and what's in A and what's in B been adjudicated before?

[00:24:31] Speaker 00:
Not before this court.

[00:24:33] Speaker 00:
It's something that's been before the CIT and the Ford case, as my colleague noted.

[00:24:39] Speaker 00:
But that case was more about the opera.

[00:24:41] Speaker 00:
That case discussed the interplay between all these provisions, but it mostly focused on the applicability of C in that circumstance.

[00:24:48] Speaker 00:
And now this case is as well as the, I think, the first, in my understanding, to make it before this court.

[00:24:54] Speaker 04:
Should we take comfort with that, that everybody understood it the way you understood it, or should we just...?

[00:25:00] Speaker 00:
I think we should take comfort with the fact that the trial court issued a fantastic decision just outlining how these procedures and the interplay works, and that we ask that this court affirm the trial court's decision.

[00:25:11] Speaker 04:
Thank you, Your Honor.

[00:25:26] Speaker 03:
The problem with my learned friend's argument is that it completely yields an absurd and anomalous result, which Congress could not have intended with the 2004 Act.

[00:25:36] Speaker 03:
According to the government, if all the liquidated entries are not liquidated and final by the one year anniversary, those entries, which is the majority of drawback claims, come right off the deemed liquidation statute.

[00:25:50] Speaker 03:
There is no deadline for ever liquidating them.

[00:25:54] Speaker 03:
And I cannot come in and use B to force a liquidation.

[00:25:59] Speaker 03:
In our case, we had no unliquidated entries.

[00:26:01] Speaker 03:
All our entries were liquidated.

[00:26:04] Speaker 03:
And therefore, we had no estimated duties.

[00:26:06] Speaker 02:
When was the last date?

[00:26:07] Speaker 02:
Pardon?

[00:26:08] Speaker 02:
When was the last date that they were liquidated and final?

[00:26:12] Speaker 03:
Some of the import entries were liquidated and finaled by the one year anniversary.

[00:26:16] Speaker 03:
Some were not.

[00:26:18] Speaker 03:
The ones that were not, probably two, three months later.

[00:26:23] Speaker 02:
Let me ask you this.

[00:26:24] Speaker 02:
I'm going to take a little more than two minutes.

[00:26:28] Speaker 02:
You say in the blue brief at 3 and 4 and at 10 that Judge Rustani admitted inapplicability of B to performance his claim.

[00:26:53] Speaker 02:
Judges generally don't admit things, so I look closely at that.

[00:26:59] Speaker 02:
And it seems to me you're taking the statements by the trial court out of context.

[00:27:06] Speaker 02:
I interpret the CIT's words to be explaining performance chose not to follow subparagraph B steps to cause liquidation, where she says, the government contends and plaintiff concedes

[00:27:21] Speaker 02:
Performance did not follow the procedure under subparagraph B, under the subparagraph B exception, to force customs to liquidate its drawbacks claims.

[00:27:32] Speaker 02:
Therefore, the time limits imposed by the drawback statute do not apply to the claim.

[00:27:36] Speaker 02:
And then she goes on and elaborates.

[00:27:40] Speaker 02:
It seems to me that she's not conceding anything.

[00:27:44] Speaker 02:
What she's saying is, this is how B applies, and you're taking that out of context.

[00:27:50] Speaker 03:
Well, Your Honor, that's the central issue in this appeal, is B, a general exception to the rule of deemed liquidation in A. And if it is, then there's never a time limit for most drawbacks in liquidation.

[00:28:04] Speaker 02:
You're not answering my question, Mr. Peterson.

[00:28:07] Speaker 02:
You say she conceded it.

[00:28:08] Speaker 03:
Well, the answer to your question, Your Honor,

[00:28:10] Speaker 03:
is that the B procedure is an optional procedure.

[00:28:16] Speaker 03:
It's only triggered when the drawback claimant does something.

[00:28:19] Speaker 03:
We felt no need to do it.

[00:28:21] Speaker 03:
It's not a safeguard on A, because if I have my drawback claim liquidated on estimated duties, the drawback regulations say... No, I'm not answering my question.

[00:28:32] Speaker 03:
Well, it's an optional procedure.

[00:28:39] Speaker 03:
We didn't need to do it.

[00:28:40] Speaker 02:
I'm talking about the language of the opinion below.

[00:28:42] Speaker 02:
Of language of what?

[00:28:45] Speaker 02:
The opinion below.

[00:28:46] Speaker 03:
Again, the opinion below construes B as a general exception to the deem liquidation rule of A. It produces an absurd result.

[00:28:58] Speaker 02:
If you say that, then you're agreeing that she doesn't concede it is inapplicable.

[00:29:03] Speaker 03:
She doesn't concede it, but I think she's in error.

[00:29:08] Speaker 03:
And I think the proof of the error is the fact that under the government's position, these drawback claims never have a time to liquidate.

[00:29:19] Speaker 03:
We couldn't force the liquidation under B, in this case, when the one year anniversary moved by.

[00:29:24] Speaker 03:
So we had no liquidated entries.

[00:29:26] Speaker 03:
We had no estimated duties.

[00:29:27] Speaker 03:
We only had liquidated duties.

[00:29:30] Speaker 03:
And the problem here is the government's interpretation.

[00:29:34] Speaker 03:
absolutely writes the 2004 statute out of the books.

[00:29:39] Speaker 04:
Okay.

[00:29:39] Speaker 04:
We have your argument.

[00:29:40] Speaker 04:
Thank you.

[00:29:42] Speaker 04:
Thank you.