Please, the court. I'm Joel Junker, Arjunion B. Hath of Normandy's Jensen. Incorporated. I have a interesting historical footnote. Normandy Jensen himself testified for the Senate Committee in 1969 in favor of the amendments that we are discussing today, which passed in 1970. I would like to point out to the courts some further observations to our brief, and of course, answer any questions the court may have. I'd like to begin by noting specific respect to this case and the respect to possible jurisdiction of the 1581A. That this case is unlike any other case, cited by the government or the court below, for the proposition that an accept request for an accelerated disposition must be made in order to achieve 1581A jurisdiction to preclude 1581A. Normandy Jensen is not requesting that this court enforce its statutory rights to in any way deal with the merits or the substance of its protest. It is not asking the court to interfere with the process or involve itself in the process of the decision-making protest process, that's aware of. It is merely asking that the court and seek the only remedy, or enforce the only remedy available to it, for obtaining the administrative review and decision, which is a statutory right, explicitly rendered in 1558. That gets us to the question that I had about this case, which is that you've said in your brief on a couple of occasions that what you want is a decision, IE, a written explanation, a reason explanation for a decision if there's to be a denial of your protest. And as opposed to what you would get under the expedited system in all likelihood, or at least possibly, which is a deemed denial, what is it about a deemed denial that you regard as being unsatisfactory? And before you answer it, let me just say that in many areas of administrative law, in which we have jurisdiction frequently see deemed denial of and contract, federal contract claims are deemed denied if the contracting officer doesn't act within the next period of time, and I believe me yet happens over and over and over again. And nobody thinks anything else is just well-parted, denied. But you seem to attach substantial significance to the difference between a written denial with reasons versus a deemed denial. Why? I would as a threefold learner. First, this is an unusual situation in that Jensen has a statutory right to review and a decision
. And under the provisions for request for accelerated disposition, that right goes away because it once accelerated dispositions requested, customs had the option of not doing anything right. That's deemed denial. And so eventually what's happening here, your honor is that Jensen is being forced to wave rights of heads through a decision too. I mentioned that. I said we're on the same page here, but my question is why do you care? Why do I care? It's a practical matter of what's the difference. The practical matter is easy to answer, your honor. 308 protests, 1,529 entries, involving what we think are merely clerical and ministerial errors. Why should an importer or a broker have to subject to self to the cost of discovery and the cost of dealing with the court action, or when it should be in what is hopefully not a major trade issue, when that's the job of customs under 1515A. That's the price of customs. I'm sure to have acted in this case. And head said your protests are denied because customs has examined all of the entries and is satisfied that each of them was regular and proper. Period. That's your written explanation. Why would you be in better shape with that in your hand than you are with a deed or not? We wouldn't in a substance that's since your honor. And one of the other practical effects with a jensen or any other importer who's subject to a protest or who's offered a protest is it would be helpful to have some idea whether there are grounds for an appeal before one has to go to the cost expense, necessity of filing an appeal. 1581A. To the extent they're encouraging this court to find your jurisdiction under 1581A
. I encourage a court to look at the exact language of the grant of jurisdiction there. It provides that the court, quote, shall have exclusive jurisdiction of civil actions commenced to contest the denial of a protest in whole or in part under Section 1515A. We have no denial here, Your Honor. But has you gone under 1515B and they're going to be denied? That would be the section you would go under, wouldn't it? So would denial include the denial? There is no requirement. No, but the argument you just made, which is the 1581A doesn't apply because there's been no denial here. But if you were to go under 1515B, there wouldn't be a denial, right? That's the question you do have a way in the 1515B to go under the court of international trade and what is it? It would be 1581A, correct? If we sought to waive our right to the administrative review, which is not what we want, Your Honor, we don't want you to show review unless it's necessary. We want over entitled to under 1515A, which is the administrative review and the allowance or denial for reasons therefore and notice therefore. Not only my client, but entire importing industry would like the law to be enforced as it reads. The, as is referenced by the Amicus race and the Atachi case. Other, as I've asked, you want to ask a question. At the end of the, the Court of the National Trade of Peanuts, there's a footnote 11. And in the second half of the footnote is the bottom of the page, I guess page 14. So, as the pending is represented to plaintiff and the court, the customs have prepared a draft ruling letter on plaintiff's protest, but cease work. And then the footnote goes on and there's, includes its reasonable to assume that upon the dismissal of this action in the 2009 action, the customs would resume work on its ruling and issue the same to plaintiff. I, and you know, Cretnick, we disagree. But I, I mean that is the court saying, well, you know, the customs have said that, basically, and we'll all have to govern this or maybe one of my colleagues will, um, customs is saying, well, if this case gets dismissed, we'll finish the protest ruling and you then your client will have what it wants. Well, you're on, you know, there's been any discussion about that in the, in the action below
. Yeah, quite a bit, Your Honor. I'm not sure what's appropriate on the record. In fact, the court encouraged the parties to seek resolution by encouraging the, this is on the record, the oral argument. It encouraged the government to indeed show us a copy of the draft opinions and, um, and therefore, work out a deal where we might be able to withdraw our case because we have some sense that it's going to become. My client, given the history of this case, is not convinced from the conduct of customs. That is indeed a reasonable assumption. They have closer administrative proceedings. We argued in our reply brief, they've cited no authority that they have the opportunity to open a closed administrative proceeding. Um, and, um, we have never seen the so-called draft. We have no idea what it does or what it does and, or what it says. And indeed, we are looking at the government's position that indeed under their regulations, they cannot proceed. Given the fact of the case as file, uh, to protect our rights when they wouldn't inform us of whether our rights even need to be protected. But presumably, I guess the good, well, we have to ask the government, obviously, in fairness to you, Mr. Juggled, but presumably, if the case was dismissed, then the government would be free to proceed. They say they're not your honor. Um, that's all they can offer to. Uh, and my client does not consider a reasonable assumption that we will see it
. After two years of waiting and then inquiring, going back and forth, getting no response, there is no factual basis for us to presume, or assume reasonably, we'll ever see that decision. Unless and until this court, the request in order that, that is a decision being made under 1515A. Um, the other thing that I, I'm concerned about, and my client's concerned about, if we'd have to proceed under an accelerated disposition request to a deemed denial or honor, um, to the court, is it effectively gives the government unilateral power to completely nullify or negate the statutory requirements under 1515A. And this is the class of case. They simply did not decide the case. Then they, um, would not tell us the status of our protest to know whether it was necessary to protect our, our potential of televisions. We did not know whether there was a denial that needed to be contested under 1515A. So, the protective lawsuit was filed in absence of any communications and customs on that issue. Now we have the government arguing that there must be a request for accelerated disposition in order for us to be able to get the, the remedy we seek. However, if we request that, customs no longer has to rule on our protest. It can do nothing. And, uh, at that point, then we have to go to, to court. And there's been no administrative review. And that's entirely in the control of customs. And I submitted to the court that Congress did not intend in requiring customs to err under a decision to give customs at the same time the unilateral power to absolve itself of that responsibility. That's the concern we have. With respect to 1515I, there's a tension between the statute, which is a broad grant of jurisdiction
. 1581. I'm sorry. Thank you, Your Honor. I, uh, 1581 or 2015. I get the, I get the 50s, that's pretty good. Thank you, Your Honor. 151581I with a broad grant of jurisdiction. It is circumscribed, however, by the holdings of Miller and National Concordial Rooms, which says that you may not rely on 1515I. If you use it to circumvent the prerequisites of another provision of the jurisdictional statute, in this case, we are not seeking at all to circumscribe the prerequisites of 1581A. 1581A is to contest the deny protest. We're trying to get a protest decision. We're not trying to circumvent the requirements of 1581A. We are trying to put the requirements of prerequisites of 1581A in place so we know that jurisdiction is appropriate under 1581A. The, um, other concern we have about the government's argument in the context of 1581A. Is that we believe it goes against the teachings of this court in Canadian wheat board. In Canadian wheat board, the court argued, or the government argued that, that proceeding in a 1581A was not appropriate because the plaintiff could have sought another procedural avenue to obtain its remedy, which then would have resulted in jurisdiction under another provision of 1581A, or 1581A, other than 1581A. And the court rejected that argument
. It said we will not force or encourage a plaintiff to use one procedural avenue to obtain, over another solely for the purposes of forcing them to achieve another jurisdiction under 1581. And indeed, in our case, if that's not only appropriate because of the teaching of the case, it's also appropriate because to force us to choose another procedural option, i.e., a request for accelerated disposition, to obtain another jurisdiction under A, doesn't give us the remedy we're seeking. We can't get under 1581A, an administrative review. We can hope for one if we wave our statutory rights to one, but it doesn't give us the remedy we're seeking. So we submit that what the court has and goes against the teachings of Canadian reform. Now you are into your review. I see that. I will. I'll preserve a few more moments for a moment. Thank you. You may please the court. The trial courts dismissal of this action should be affirmed because the statute provides a remedy to Jensen, but Jensen has chosen not to pursue that remedy. Because Jensen is not following the Congressional mandated framework of 1515, igniting both the trial courts residual jurisdiction of 1581A. You know that? In this instance. When you start off that way, it does prompt me to ask whether your position is really consistent with the Congressional mandate
. What Congress said is in 1515A, customs has two years and 1515B. There's an alternative means of proceeding if the importer wishes. Your position seems to be that the two years is unenforceable if it is something that customs has to pay any attention to at all. And that instead the only way to get an expedited disposition is to go through B. So that B is not an alternative. It's the only remedy for someone that wants to get a disposition that occurs at some point, but for customs feels it's ready to move, even if customs goes for five years. Why is that consistent with what Congress specifically wrote in 1515A? Certainly, your honor. Two years. You're saying your position seems to be you could take ten years. Is that correct? Well, no, Your Honor. Let me explain the framework of the statute. Let me make sure I understand your note. If we were here ten years after the fact, would you be making the same argument? Certainly, Your Honor. Okay, so customs can take ten years. So your answer is yes to my question, right? Yes, to the extent that Jensen chooses not to invoke 1515D. Right, and Jensen says, that he's right, maybe it's not, that he has reasons sufficient, reasons that he wants to use that alternative remedy, but that doesn't respond, it seems, for me, to the basic problem that Congress has said customs has two years, and customs seems to have eriegated to itself the right to take as much time, is it wishes? Is that an unfair characterization of your position? Yes, Your Honor, and here's why. What applies it unfair? Customs takes their obligations into the statute very seriously, and they've created internal controls to ensure that the directives of 1515A is followed, and that it decides protests within this two-year period entirely
. Except when it's not followed. In certain circumstances, the agency is unable to complete for view in two years, and one of the circumstances when there's pending litigation which we have in this instance, we're not asking Jensen to forego its right to a substantive review. The proper course of action would be for Jensen to remove the improper court actions, there's two of them that are currently pending. So if there were no court action, if no court action had been filed previously, you still would say, if I understand you're brief correctly, that there is no authority for the courts to come in and say you're beyond your two years. Mandamus are anything else, correct? Yes, Your Honor, this court stirs prunes the Vittacci. The two-year time limitation of 1515A is direct- directory and not mandatory. But Tachi's case in which the argument that Tachi was making is that there has to be a remedy for a violation of the two years, and that remedy should be allowance of the protest. This, it seems to me, is a rather different situation, where here no one's asking for allowance of the protest. There is merely a request for a decision. So you could, it isn't simply you either get allowance of the protest or a customer has no obligation at all, there could be a middle ground, which is that the court has a right and a duty to say to customers, you have to decide this in two years. Why isn't that the right way to dispose of this case? Well, Your Honor, it wouldn't be a middle ground, because if a rip were imposed upon the government to complete a review in a certain period of time, it would be transforming 15A, 1515A from a directory statute into a mandatory statute, be imposing a point. Mandatory in the sense of a consequence, a remedy flowing. No, that wouldn't require the allowance of the protest, it would simply require a decision. And that, I mean, the whole line of cases that court and Tachi relied on from the Supreme Court, Pierce against Brock and so forth, were cases in which the Supreme Court said, Congress said not, Congress has imposed a time limit, but it hasn't picked a remedy. And in that setting, we're not going to oppose a remedy. That's very different, fundamentally different. It seems to me from saying, Congress has said there's a time limit, and the courts may have the right and obligation to enforce that time limit by saying, mandamus, the agency, to act, not a particular remedy, but simply saying, mandamus, why isn't that right? Well, putting jurisdiction first, I don't know, and if we would look at the application for rid of mandamus, the first element for the application would be that there is a non-discretionary mandatory obligation on the behalf of the government to act, and that sole issue was directly addressed by Tachi
. So for a court to impose a rip upon the government, it would have to be transforming 1515A from a directory statute into a mandatory statute. But I think the important thing to keep in mind is that the agency takes the obligations under 1515A very seriously. In fact, in 2007, the year that these entries came in, 91.2% of all protests that were filed were decided within two years. So it's a very small number that's not being decided within two years. And of those that aren't decided within two years, the large majority aren't decided because of this practice or this policy of not deciding administrative issues when they're pending before the courts. In 2011, out of all of the protests that were suspended, 77% were suspended because of pending litigation. Let me ask you, I just discussed with Mr. Joker's, the footnote at the end of the CIT opinion. And he says that it's now the position of customs that even in these two cases, we're just missed. Customs could not proceed to issue a protest. Is that correct? I know you're on it, that's not correct. And let me explain precisely where the agency had positioned on this is. Mr. Joker's referring to his page of 67 and 68 of the joint attendings, where he received an email at the time that the litigation was commenced, that said that the AFR was administratively closed. Simply because the AFR was administratively closed, does not mean that the protests were administratively closed. We've indicated to Mr
. Jensen on multiple occasions that if the improper court actions, both the A action and the I action were withdrawn, the agency would resume its deliberations and provide Jensen with a decision. And in fact, the record demonstrates that that 67 and 68, that the agency had a draft decision completed, and that it was under the review at the time that the improper A action was commenced. Is there any sense of how long it would take for such a decision to issue, if in fact the actions were dismissed? Certainly, Your Honor, at the trial court level, we engaged in discussions, and this was on the record, as Mr. Junker suggests, as to a time frame, by which the agency would resolve the lead AFR, under which the lead protest is suspended. And the agency had represented Mr. Jensen that they would do it in a reasonable amount of time, and I think at that moment, if I remember a certain correct, it was something around the time span of 90 days. There's certain administrative things that do need to be accomplished because of the given of this pending litigation. But if Mr. Jensen would withdraw both court actions, both the effective A action, as well as this I action, the agency would voluntarily resume its deliberations. It would voluntarily reopen the AFR under which the protest was suspended and issued a decision. So, and you think it could be within 90 days? At the time of the trial court, that was my understanding. I don't have knowledge as to right now as to what the agency's timeframe was, but I do know that a draft decision is under review, and if the improper court actions were removed from the doc, the agency would resume its deliberations. So, your view is we decide this case solely, and we can decide this case solely on that basis, and not get into whether B is the exception to A and so forth, that it ought to be decided strictly on the fact that they've got these blocking litigation, and if it's removed, the government tells us there's going to be a decision, imminently, so everything else is going to be moved at all the arguments with respect to A and B and so forth. Well, once the H.C. does render a decision, all arguments would be moved to your honor, but the main focus of the act here is jurisdiction, whether the court has trial-pressed jurisdiction under I to hear Mr. Jensen's claims. And so, the whole basis of our argument is that Congress has provided a framework by which protestants can have their claims reviewed and it's 15-15. And as we've discussed, it directs the agency to do it within two years, and the large majority of time the H.C. does do it within two years. But if the protestant becomes frustrated with the way, Congress at the time of the 1970 act, deliberated this exact issue and included in the legislative history, and this is included both in the Jensen trial court decision as well as the Tatchee, the Senate report, number 91-576 at page 28 for the Customs Court Act of 1970, provided the state that importers concerned about unreasonable delay at the administrative level are fully protected by the new provision of Section 1515B for obtaining a salary disposition. So our view is there's two options for Mr. Jensen. If he doesn't want to go the route of the salary disposition, then the proper course of action is to remove the litigation that is prohibiting customs from acting, and allow the agency to do what it intends to do, which is review these claims under 1515A. If Jensen, however, does not want to wait for that substantive review, then it has a remedy available to it, which be filed request for accelerator disposition. And if all those things happen, that is to say everything up to but not including 1515B, then the agency, having, although having represented it, would get this matter taken care of within 90 days, could take as much time as it wished, and there would be no way the Mr. Jensen could obtain relief from a court. Is that correct? Yes, to the extent that Mr. Jensen doesn't elect 1515B. That is, I may not. Yes, but from our perspective, that would be that Mr. Jensen is choosing. I mean, all of this is within Mr
. And so, the whole basis of our argument is that Congress has provided a framework by which protestants can have their claims reviewed and it's 15-15. And as we've discussed, it directs the agency to do it within two years, and the large majority of time the H.C. does do it within two years. But if the protestant becomes frustrated with the way, Congress at the time of the 1970 act, deliberated this exact issue and included in the legislative history, and this is included both in the Jensen trial court decision as well as the Tatchee, the Senate report, number 91-576 at page 28 for the Customs Court Act of 1970, provided the state that importers concerned about unreasonable delay at the administrative level are fully protected by the new provision of Section 1515B for obtaining a salary disposition. So our view is there's two options for Mr. Jensen. If he doesn't want to go the route of the salary disposition, then the proper course of action is to remove the litigation that is prohibiting customs from acting, and allow the agency to do what it intends to do, which is review these claims under 1515A. If Jensen, however, does not want to wait for that substantive review, then it has a remedy available to it, which be filed request for accelerator disposition. And if all those things happen, that is to say everything up to but not including 1515B, then the agency, having, although having represented it, would get this matter taken care of within 90 days, could take as much time as it wished, and there would be no way the Mr. Jensen could obtain relief from a court. Is that correct? Yes, to the extent that Mr. Jensen doesn't elect 1515B. That is, I may not. Yes, but from our perspective, that would be that Mr. Jensen is choosing. I mean, all of this is within Mr. Jensen's control. If Mr. Jensen seeks a substantive review, then the remedy is to wait for the agency to give him the substantive review. Let me ask you this question, and this pertains to the question of whether the matter that was raised initially in Mr. Jensen's original opening grief. And then at much greater length, and his reply raises to whether Section 177-7 says what you say and says. He says, and you're familiar with the answer. Certainly, I'm sure. So I won't go through the entire thing. But he says that protests by virtue of 170 are excluded from that provision. If he's wrong, why is he wrong? Well, he's right to a certain extent, meaning that we agree that your standard protests aren't subject to 177.7, but the reason why that regulation prohibits the agency in this circumstance is that 177 encompasses AFR, the applications for further review. And that comes in under 177.1, and 177.12, as well as 174.25. And those are the provisions
. Jensen's control. If Mr. Jensen seeks a substantive review, then the remedy is to wait for the agency to give him the substantive review. Let me ask you this question, and this pertains to the question of whether the matter that was raised initially in Mr. Jensen's original opening grief. And then at much greater length, and his reply raises to whether Section 177-7 says what you say and says. He says, and you're familiar with the answer. Certainly, I'm sure. So I won't go through the entire thing. But he says that protests by virtue of 170 are excluded from that provision. If he's wrong, why is he wrong? Well, he's right to a certain extent, meaning that we agree that your standard protests aren't subject to 177.7, but the reason why that regulation prohibits the agency in this circumstance is that 177 encompasses AFR, the applications for further review. And that comes in under 177.1, and 177.12, as well as 174.25. And those are the provisions. It defines what a ruling is. And under those definitions, it encompasses an application for further review. But that wouldn't happen. That's not the initial decision on protests, right? Well, no, what ends up happening at the administrative level when you file a protest is the protestant can it look like to have further review be done, which means it's forwarded to headquarters to have this application for further review. The protest is suspended under the application because the court acts at the direction of headquarters. So here, while 177.7, technically prohibits the protest when we decide it, it does prohibit the application for further review from being decided, which is the province of headquarters. The protest should not be decided, correct? No, your honor. The protest has not been decided and can't be decided until the AFR has been decided because the court acts at the direction of headquarters. So it's sort of like it's a dominoes fact. We need the AFR needs to be decided, which contains legalization. But headquarters does get involved in the application, right? No, well, so I mean normally the protest just gets decided at the port and headquarters never hears that, right? In the general sense, yes. But so this is one of those cases that headquarters has grabbed. Is that a fair statement? Well, I would need to look at a protest and see whether Mr. Jensen shows an application for further review. There's two instances in which the headquarters can review an issue. Either the protestant can elect to have the headquarters look at it or the agency can suspend it to headquarters and have
. It defines what a ruling is. And under those definitions, it encompasses an application for further review. But that wouldn't happen. That's not the initial decision on protests, right? Well, no, what ends up happening at the administrative level when you file a protest is the protestant can it look like to have further review be done, which means it's forwarded to headquarters to have this application for further review. The protest is suspended under the application because the court acts at the direction of headquarters. So here, while 177.7, technically prohibits the protest when we decide it, it does prohibit the application for further review from being decided, which is the province of headquarters. The protest should not be decided, correct? No, your honor. The protest has not been decided and can't be decided until the AFR has been decided because the court acts at the direction of headquarters. So it's sort of like it's a dominoes fact. We need the AFR needs to be decided, which contains legalization. But headquarters does get involved in the application, right? No, well, so I mean normally the protest just gets decided at the port and headquarters never hears that, right? In the general sense, yes. But so this is one of those cases that headquarters has grabbed. Is that a fair statement? Well, I would need to look at a protest and see whether Mr. Jensen shows an application for further review. There's two instances in which the headquarters can review an issue. Either the protestant can elect to have the headquarters look at it or the agency can suspend it to headquarters and have... Yeah. ...the only one is the headquarter's level. Right, your honor. So I would need to look at the protest and see under what circumstances it was then forwarded to headquarters for review. But the reason why the agency can't act in this instance is because under this regulation scheme is because there's this pending AFR. But generally, the policy decisions by which the agency does not decide protests or applications for further review when it's pending before the court is administrative efficiency. If the court should come down on a legal decision contrary to how the agency views that legal issue, the litigants in the agency would have to undergo further work to undo the decision that they made that the court disagrees with. So the agency has developed this administrative policy, both for protests and for applications for further review, that if the... If it matters moving to litigation, it stops all action because it doesn't want to contribute with the court's doing or have to redo whatever work was done to the court to disagree with this position with respect to legal issue. For these reasons, we submit that the trial court was proper in dismissing its action in that the stretch provides stress with a remedy and Mr
... Yeah. ...the only one is the headquarter's level. Right, your honor. So I would need to look at the protest and see under what circumstances it was then forwarded to headquarters for review. But the reason why the agency can't act in this instance is because under this regulation scheme is because there's this pending AFR. But generally, the policy decisions by which the agency does not decide protests or applications for further review when it's pending before the court is administrative efficiency. If the court should come down on a legal decision contrary to how the agency views that legal issue, the litigants in the agency would have to undergo further work to undo the decision that they made that the court disagrees with. So the agency has developed this administrative policy, both for protests and for applications for further review, that if the... If it matters moving to litigation, it stops all action because it doesn't want to contribute with the court's doing or have to redo whatever work was done to the court to disagree with this position with respect to legal issue. For these reasons, we submit that the trial court was proper in dismissing its action in that the stretch provides stress with a remedy and Mr. Jensen needs to follow that stretch forward. Let me ask one further question along the same lines that I question Mr. Junker and that is, do you perceive there being a difference of substance between a deemed denial and a ruling, assuming it's a denial by the agency under 15A, which the agency has an obligation to state reasons for its decision? I would say the parents, yes or no, and I think Mr. Junker's point illustrates that depends. If the litigant would like to have to just review of its claims, then I don't see any difference because the statute provides the door by which they give to the trial court under A. If the litigant seeks administrative determination to assess the viability of its claims, then there would be a difference, but the statute allows the litigant to obtain that and that is going under 1515A and allowing the agency to conduct its administrative review. But not if the agency simply says we're never going to decide this. I think I'd be an extreme incident, but the agency is, their obligation is under the statute very seriously and has baked in internal control. All but 9% of the cases are apparently. In 2007, 8%. Yes, but the majority of those is because of pending litigation, so it's not as if the agency is circling into the file. Thank you, Your Honor. Mr. Chairman, you have a couple of your honor words, but I don't. Before I respond to some of this point, I want to address something so I don't run out of time. We also have the issue of the failure of state acclaimed upon which relief can be based. The arguments are fairly fully set forth in the briefs below and reiterated in the briefs here
. Jensen needs to follow that stretch forward. Let me ask one further question along the same lines that I question Mr. Junker and that is, do you perceive there being a difference of substance between a deemed denial and a ruling, assuming it's a denial by the agency under 15A, which the agency has an obligation to state reasons for its decision? I would say the parents, yes or no, and I think Mr. Junker's point illustrates that depends. If the litigant would like to have to just review of its claims, then I don't see any difference because the statute provides the door by which they give to the trial court under A. If the litigant seeks administrative determination to assess the viability of its claims, then there would be a difference, but the statute allows the litigant to obtain that and that is going under 1515A and allowing the agency to conduct its administrative review. But not if the agency simply says we're never going to decide this. I think I'd be an extreme incident, but the agency is, their obligation is under the statute very seriously and has baked in internal control. All but 9% of the cases are apparently. In 2007, 8%. Yes, but the majority of those is because of pending litigation, so it's not as if the agency is circling into the file. Thank you, Your Honor. Mr. Chairman, you have a couple of your honor words, but I don't. Before I respond to some of this point, I want to address something so I don't run out of time. We also have the issue of the failure of state acclaimed upon which relief can be based. The arguments are fairly fully set forth in the briefs below and reiterated in the briefs here. I would ask this court that if they find jurisdiction and find that we have not failed to state acclaimed upon which relief can be based, that essentially there is no further argument to be made before the court below. And so if the court here finds that there is a basis for acclaimed relief that any remand, go to the court with an order that the writ be issued and consistent with its decision. I would just point out a couple quick things. If you look carefully at the record and we discussed this in detail in our reply brief, all the protests are at least we thought, but we were never confirmed to us. It was never confirmed to us all the protests were consolidated under a lead protest. That was the communication to us. So this idea, there was some AFR and all the other protests were on their own is not an accurate description. I would point out that with respect to the claim that part 177 and the rules there under a file to prevent a ruling under an AFR as opposed to no protest, that's not borne out by the regulations. The statutes, 1514 and 1515 refer to in reference AFRs. They are matters arising out of part 174 which applies to protests and matters arising out of part 174 are excluded from consideration in the rules within the scope of part 177. The litigation, nobody suggested the gents, it's clear in the record and I can represent the court, nobody suggested the gents until the motion to dismiss was served. If we just withdrew our litigation, we would get a ruling based on the draft. Now they've made it pretty clear that that's the same time they're saying they can't. That's what I don't understand. They are speaking at it both sides of the 90% area. I perhaps misunderstood Mr. Miller
. I would ask this court that if they find jurisdiction and find that we have not failed to state acclaimed upon which relief can be based, that essentially there is no further argument to be made before the court below. And so if the court here finds that there is a basis for acclaimed relief that any remand, go to the court with an order that the writ be issued and consistent with its decision. I would just point out a couple quick things. If you look carefully at the record and we discussed this in detail in our reply brief, all the protests are at least we thought, but we were never confirmed to us. It was never confirmed to us all the protests were consolidated under a lead protest. That was the communication to us. So this idea, there was some AFR and all the other protests were on their own is not an accurate description. I would point out that with respect to the claim that part 177 and the rules there under a file to prevent a ruling under an AFR as opposed to no protest, that's not borne out by the regulations. The statutes, 1514 and 1515 refer to in reference AFRs. They are matters arising out of part 174 which applies to protests and matters arising out of part 174 are excluded from consideration in the rules within the scope of part 177. The litigation, nobody suggested the gents, it's clear in the record and I can represent the court, nobody suggested the gents until the motion to dismiss was served. If we just withdrew our litigation, we would get a ruling based on the draft. Now they've made it pretty clear that that's the same time they're saying they can't. That's what I don't understand. They are speaking at it both sides of the 90% area. I perhaps misunderstood Mr. Miller. My understanding was that if you withdraw that litigation that they will proceed decide within some totally 90 days. If they're not going to comply with the statute so they have to rule on what basis can I assume that they're going to proceed on an offer to avoid litigation release in those case. Force if the case were dismissed and the government attorney in the court of international trade affirmatively represented that a decision would be forthcoming in 90 days. That would have some consequence. Your Honor all I can say is my client of statutory right to an administrative review and a decision we have not obtained the benefits of that statutory right given to my client by Congress. You're asking me to give up my pursuit of that statutory right in the face of this really sad history. What about what Mr. Miller has said though today? Well Judge Price and just referred namely that the agency would proceed, customs would proceed to issue a decision. With that and three dollars your Honor would give me a cup of coffee. We have no reasonable basis to assume. I mean Mr. Counsel is an honorable man and we've argued before but my client has to look to the history of this case. We have spent time and money. We waited two years patiently for the statutory decision. It didn't come. We spent months inquiring about the status of it. Nothing came
. My understanding was that if you withdraw that litigation that they will proceed decide within some totally 90 days. If they're not going to comply with the statute so they have to rule on what basis can I assume that they're going to proceed on an offer to avoid litigation release in those case. Force if the case were dismissed and the government attorney in the court of international trade affirmatively represented that a decision would be forthcoming in 90 days. That would have some consequence. Your Honor all I can say is my client of statutory right to an administrative review and a decision we have not obtained the benefits of that statutory right given to my client by Congress. You're asking me to give up my pursuit of that statutory right in the face of this really sad history. What about what Mr. Miller has said though today? Well Judge Price and just referred namely that the agency would proceed, customs would proceed to issue a decision. With that and three dollars your Honor would give me a cup of coffee. We have no reasonable basis to assume. I mean Mr. Counsel is an honorable man and we've argued before but my client has to look to the history of this case. We have spent time and money. We waited two years patiently for the statutory decision. It didn't come. We spent months inquiring about the status of it. Nothing came. When it did come. We clapped for clarification on whether all of our 300-nade protests were included in the consolidated decision. They wouldn't tell us. We came up against the date by which we had to file a case, protectively in the event that there was some denial of which we didn't receive notice. We got no response. We had to file the case. We filed the case. They come with the motion decision and the course of that motion they say all you have to do is let's draw the lawsuit, protective lawsuit. At that point we couldn't and I'll tell you why. I suggested in my brief. Because since after the filing of that case, Hitachi came along. The issue in Hitachi was if the agency does not rule within two years, our protest may be deemed allowed. We kept our case in place. In the event we could obtain our remedy through the Hitachi case. It's supposed to happen to proceed with our case. No disrespect to the customer service. I need no disrespect to the customer
. When it did come. We clapped for clarification on whether all of our 300-nade protests were included in the consolidated decision. They wouldn't tell us. We came up against the date by which we had to file a case, protectively in the event that there was some denial of which we didn't receive notice. We got no response. We had to file the case. We filed the case. They come with the motion decision and the course of that motion they say all you have to do is let's draw the lawsuit, protective lawsuit. At that point we couldn't and I'll tell you why. I suggested in my brief. Because since after the filing of that case, Hitachi came along. The issue in Hitachi was if the agency does not rule within two years, our protest may be deemed allowed. We kept our case in place. In the event we could obtain our remedy through the Hitachi case. It's supposed to happen to proceed with our case. No disrespect to the customer service. I need no disrespect to the customer. My client has no basis to assume that this generous gracious office of the decision. From the judge and a draft decision, the judge encouraged them to show us what we had never seen. It's going to give us the remedy. We are not going to waive our rights in the hopes that the customs will give us what statutorily they have before and the required to do. Very well. Thank you.
Please, the court. I'm Joel Junker, Arjunion B. Hath of Normandy's Jensen. Incorporated. I have a interesting historical footnote. Normandy Jensen himself testified for the Senate Committee in 1969 in favor of the amendments that we are discussing today, which passed in 1970. I would like to point out to the courts some further observations to our brief, and of course, answer any questions the court may have. I'd like to begin by noting specific respect to this case and the respect to possible jurisdiction of the 1581A. That this case is unlike any other case, cited by the government or the court below, for the proposition that an accept request for an accelerated disposition must be made in order to achieve 1581A jurisdiction to preclude 1581A. Normandy Jensen is not requesting that this court enforce its statutory rights to in any way deal with the merits or the substance of its protest. It is not asking the court to interfere with the process or involve itself in the process of the decision-making protest process, that's aware of. It is merely asking that the court and seek the only remedy, or enforce the only remedy available to it, for obtaining the administrative review and decision, which is a statutory right, explicitly rendered in 1558. That gets us to the question that I had about this case, which is that you've said in your brief on a couple of occasions that what you want is a decision, IE, a written explanation, a reason explanation for a decision if there's to be a denial of your protest. And as opposed to what you would get under the expedited system in all likelihood, or at least possibly, which is a deemed denial, what is it about a deemed denial that you regard as being unsatisfactory? And before you answer it, let me just say that in many areas of administrative law, in which we have jurisdiction frequently see deemed denial of and contract, federal contract claims are deemed denied if the contracting officer doesn't act within the next period of time, and I believe me yet happens over and over and over again. And nobody thinks anything else is just well-parted, denied. But you seem to attach substantial significance to the difference between a written denial with reasons versus a deemed denial. Why? I would as a threefold learner. First, this is an unusual situation in that Jensen has a statutory right to review and a decision. And under the provisions for request for accelerated disposition, that right goes away because it once accelerated dispositions requested, customs had the option of not doing anything right. That's deemed denial. And so eventually what's happening here, your honor is that Jensen is being forced to wave rights of heads through a decision too. I mentioned that. I said we're on the same page here, but my question is why do you care? Why do I care? It's a practical matter of what's the difference. The practical matter is easy to answer, your honor. 308 protests, 1,529 entries, involving what we think are merely clerical and ministerial errors. Why should an importer or a broker have to subject to self to the cost of discovery and the cost of dealing with the court action, or when it should be in what is hopefully not a major trade issue, when that's the job of customs under 1515A. That's the price of customs. I'm sure to have acted in this case. And head said your protests are denied because customs has examined all of the entries and is satisfied that each of them was regular and proper. Period. That's your written explanation. Why would you be in better shape with that in your hand than you are with a deed or not? We wouldn't in a substance that's since your honor. And one of the other practical effects with a jensen or any other importer who's subject to a protest or who's offered a protest is it would be helpful to have some idea whether there are grounds for an appeal before one has to go to the cost expense, necessity of filing an appeal. 1581A. To the extent they're encouraging this court to find your jurisdiction under 1581A. I encourage a court to look at the exact language of the grant of jurisdiction there. It provides that the court, quote, shall have exclusive jurisdiction of civil actions commenced to contest the denial of a protest in whole or in part under Section 1515A. We have no denial here, Your Honor. But has you gone under 1515B and they're going to be denied? That would be the section you would go under, wouldn't it? So would denial include the denial? There is no requirement. No, but the argument you just made, which is the 1581A doesn't apply because there's been no denial here. But if you were to go under 1515B, there wouldn't be a denial, right? That's the question you do have a way in the 1515B to go under the court of international trade and what is it? It would be 1581A, correct? If we sought to waive our right to the administrative review, which is not what we want, Your Honor, we don't want you to show review unless it's necessary. We want over entitled to under 1515A, which is the administrative review and the allowance or denial for reasons therefore and notice therefore. Not only my client, but entire importing industry would like the law to be enforced as it reads. The, as is referenced by the Amicus race and the Atachi case. Other, as I've asked, you want to ask a question. At the end of the, the Court of the National Trade of Peanuts, there's a footnote 11. And in the second half of the footnote is the bottom of the page, I guess page 14. So, as the pending is represented to plaintiff and the court, the customs have prepared a draft ruling letter on plaintiff's protest, but cease work. And then the footnote goes on and there's, includes its reasonable to assume that upon the dismissal of this action in the 2009 action, the customs would resume work on its ruling and issue the same to plaintiff. I, and you know, Cretnick, we disagree. But I, I mean that is the court saying, well, you know, the customs have said that, basically, and we'll all have to govern this or maybe one of my colleagues will, um, customs is saying, well, if this case gets dismissed, we'll finish the protest ruling and you then your client will have what it wants. Well, you're on, you know, there's been any discussion about that in the, in the action below. Yeah, quite a bit, Your Honor. I'm not sure what's appropriate on the record. In fact, the court encouraged the parties to seek resolution by encouraging the, this is on the record, the oral argument. It encouraged the government to indeed show us a copy of the draft opinions and, um, and therefore, work out a deal where we might be able to withdraw our case because we have some sense that it's going to become. My client, given the history of this case, is not convinced from the conduct of customs. That is indeed a reasonable assumption. They have closer administrative proceedings. We argued in our reply brief, they've cited no authority that they have the opportunity to open a closed administrative proceeding. Um, and, um, we have never seen the so-called draft. We have no idea what it does or what it does and, or what it says. And indeed, we are looking at the government's position that indeed under their regulations, they cannot proceed. Given the fact of the case as file, uh, to protect our rights when they wouldn't inform us of whether our rights even need to be protected. But presumably, I guess the good, well, we have to ask the government, obviously, in fairness to you, Mr. Juggled, but presumably, if the case was dismissed, then the government would be free to proceed. They say they're not your honor. Um, that's all they can offer to. Uh, and my client does not consider a reasonable assumption that we will see it. After two years of waiting and then inquiring, going back and forth, getting no response, there is no factual basis for us to presume, or assume reasonably, we'll ever see that decision. Unless and until this court, the request in order that, that is a decision being made under 1515A. Um, the other thing that I, I'm concerned about, and my client's concerned about, if we'd have to proceed under an accelerated disposition request to a deemed denial or honor, um, to the court, is it effectively gives the government unilateral power to completely nullify or negate the statutory requirements under 1515A. And this is the class of case. They simply did not decide the case. Then they, um, would not tell us the status of our protest to know whether it was necessary to protect our, our potential of televisions. We did not know whether there was a denial that needed to be contested under 1515A. So, the protective lawsuit was filed in absence of any communications and customs on that issue. Now we have the government arguing that there must be a request for accelerated disposition in order for us to be able to get the, the remedy we seek. However, if we request that, customs no longer has to rule on our protest. It can do nothing. And, uh, at that point, then we have to go to, to court. And there's been no administrative review. And that's entirely in the control of customs. And I submitted to the court that Congress did not intend in requiring customs to err under a decision to give customs at the same time the unilateral power to absolve itself of that responsibility. That's the concern we have. With respect to 1515I, there's a tension between the statute, which is a broad grant of jurisdiction. 1581. I'm sorry. Thank you, Your Honor. I, uh, 1581 or 2015. I get the, I get the 50s, that's pretty good. Thank you, Your Honor. 151581I with a broad grant of jurisdiction. It is circumscribed, however, by the holdings of Miller and National Concordial Rooms, which says that you may not rely on 1515I. If you use it to circumvent the prerequisites of another provision of the jurisdictional statute, in this case, we are not seeking at all to circumscribe the prerequisites of 1581A. 1581A is to contest the deny protest. We're trying to get a protest decision. We're not trying to circumvent the requirements of 1581A. We are trying to put the requirements of prerequisites of 1581A in place so we know that jurisdiction is appropriate under 1581A. The, um, other concern we have about the government's argument in the context of 1581A. Is that we believe it goes against the teachings of this court in Canadian wheat board. In Canadian wheat board, the court argued, or the government argued that, that proceeding in a 1581A was not appropriate because the plaintiff could have sought another procedural avenue to obtain its remedy, which then would have resulted in jurisdiction under another provision of 1581A, or 1581A, other than 1581A. And the court rejected that argument. It said we will not force or encourage a plaintiff to use one procedural avenue to obtain, over another solely for the purposes of forcing them to achieve another jurisdiction under 1581. And indeed, in our case, if that's not only appropriate because of the teaching of the case, it's also appropriate because to force us to choose another procedural option, i.e., a request for accelerated disposition, to obtain another jurisdiction under A, doesn't give us the remedy we're seeking. We can't get under 1581A, an administrative review. We can hope for one if we wave our statutory rights to one, but it doesn't give us the remedy we're seeking. So we submit that what the court has and goes against the teachings of Canadian reform. Now you are into your review. I see that. I will. I'll preserve a few more moments for a moment. Thank you. You may please the court. The trial courts dismissal of this action should be affirmed because the statute provides a remedy to Jensen, but Jensen has chosen not to pursue that remedy. Because Jensen is not following the Congressional mandated framework of 1515, igniting both the trial courts residual jurisdiction of 1581A. You know that? In this instance. When you start off that way, it does prompt me to ask whether your position is really consistent with the Congressional mandate. What Congress said is in 1515A, customs has two years and 1515B. There's an alternative means of proceeding if the importer wishes. Your position seems to be that the two years is unenforceable if it is something that customs has to pay any attention to at all. And that instead the only way to get an expedited disposition is to go through B. So that B is not an alternative. It's the only remedy for someone that wants to get a disposition that occurs at some point, but for customs feels it's ready to move, even if customs goes for five years. Why is that consistent with what Congress specifically wrote in 1515A? Certainly, your honor. Two years. You're saying your position seems to be you could take ten years. Is that correct? Well, no, Your Honor. Let me explain the framework of the statute. Let me make sure I understand your note. If we were here ten years after the fact, would you be making the same argument? Certainly, Your Honor. Okay, so customs can take ten years. So your answer is yes to my question, right? Yes, to the extent that Jensen chooses not to invoke 1515D. Right, and Jensen says, that he's right, maybe it's not, that he has reasons sufficient, reasons that he wants to use that alternative remedy, but that doesn't respond, it seems, for me, to the basic problem that Congress has said customs has two years, and customs seems to have eriegated to itself the right to take as much time, is it wishes? Is that an unfair characterization of your position? Yes, Your Honor, and here's why. What applies it unfair? Customs takes their obligations into the statute very seriously, and they've created internal controls to ensure that the directives of 1515A is followed, and that it decides protests within this two-year period entirely. Except when it's not followed. In certain circumstances, the agency is unable to complete for view in two years, and one of the circumstances when there's pending litigation which we have in this instance, we're not asking Jensen to forego its right to a substantive review. The proper course of action would be for Jensen to remove the improper court actions, there's two of them that are currently pending. So if there were no court action, if no court action had been filed previously, you still would say, if I understand you're brief correctly, that there is no authority for the courts to come in and say you're beyond your two years. Mandamus are anything else, correct? Yes, Your Honor, this court stirs prunes the Vittacci. The two-year time limitation of 1515A is direct- directory and not mandatory. But Tachi's case in which the argument that Tachi was making is that there has to be a remedy for a violation of the two years, and that remedy should be allowance of the protest. This, it seems to me, is a rather different situation, where here no one's asking for allowance of the protest. There is merely a request for a decision. So you could, it isn't simply you either get allowance of the protest or a customer has no obligation at all, there could be a middle ground, which is that the court has a right and a duty to say to customers, you have to decide this in two years. Why isn't that the right way to dispose of this case? Well, Your Honor, it wouldn't be a middle ground, because if a rip were imposed upon the government to complete a review in a certain period of time, it would be transforming 15A, 1515A from a directory statute into a mandatory statute, be imposing a point. Mandatory in the sense of a consequence, a remedy flowing. No, that wouldn't require the allowance of the protest, it would simply require a decision. And that, I mean, the whole line of cases that court and Tachi relied on from the Supreme Court, Pierce against Brock and so forth, were cases in which the Supreme Court said, Congress said not, Congress has imposed a time limit, but it hasn't picked a remedy. And in that setting, we're not going to oppose a remedy. That's very different, fundamentally different. It seems to me from saying, Congress has said there's a time limit, and the courts may have the right and obligation to enforce that time limit by saying, mandamus, the agency, to act, not a particular remedy, but simply saying, mandamus, why isn't that right? Well, putting jurisdiction first, I don't know, and if we would look at the application for rid of mandamus, the first element for the application would be that there is a non-discretionary mandatory obligation on the behalf of the government to act, and that sole issue was directly addressed by Tachi. So for a court to impose a rip upon the government, it would have to be transforming 1515A from a directory statute into a mandatory statute. But I think the important thing to keep in mind is that the agency takes the obligations under 1515A very seriously. In fact, in 2007, the year that these entries came in, 91.2% of all protests that were filed were decided within two years. So it's a very small number that's not being decided within two years. And of those that aren't decided within two years, the large majority aren't decided because of this practice or this policy of not deciding administrative issues when they're pending before the courts. In 2011, out of all of the protests that were suspended, 77% were suspended because of pending litigation. Let me ask you, I just discussed with Mr. Joker's, the footnote at the end of the CIT opinion. And he says that it's now the position of customs that even in these two cases, we're just missed. Customs could not proceed to issue a protest. Is that correct? I know you're on it, that's not correct. And let me explain precisely where the agency had positioned on this is. Mr. Joker's referring to his page of 67 and 68 of the joint attendings, where he received an email at the time that the litigation was commenced, that said that the AFR was administratively closed. Simply because the AFR was administratively closed, does not mean that the protests were administratively closed. We've indicated to Mr. Jensen on multiple occasions that if the improper court actions, both the A action and the I action were withdrawn, the agency would resume its deliberations and provide Jensen with a decision. And in fact, the record demonstrates that that 67 and 68, that the agency had a draft decision completed, and that it was under the review at the time that the improper A action was commenced. Is there any sense of how long it would take for such a decision to issue, if in fact the actions were dismissed? Certainly, Your Honor, at the trial court level, we engaged in discussions, and this was on the record, as Mr. Junker suggests, as to a time frame, by which the agency would resolve the lead AFR, under which the lead protest is suspended. And the agency had represented Mr. Jensen that they would do it in a reasonable amount of time, and I think at that moment, if I remember a certain correct, it was something around the time span of 90 days. There's certain administrative things that do need to be accomplished because of the given of this pending litigation. But if Mr. Jensen would withdraw both court actions, both the effective A action, as well as this I action, the agency would voluntarily resume its deliberations. It would voluntarily reopen the AFR under which the protest was suspended and issued a decision. So, and you think it could be within 90 days? At the time of the trial court, that was my understanding. I don't have knowledge as to right now as to what the agency's timeframe was, but I do know that a draft decision is under review, and if the improper court actions were removed from the doc, the agency would resume its deliberations. So, your view is we decide this case solely, and we can decide this case solely on that basis, and not get into whether B is the exception to A and so forth, that it ought to be decided strictly on the fact that they've got these blocking litigation, and if it's removed, the government tells us there's going to be a decision, imminently, so everything else is going to be moved at all the arguments with respect to A and B and so forth. Well, once the H.C. does render a decision, all arguments would be moved to your honor, but the main focus of the act here is jurisdiction, whether the court has trial-pressed jurisdiction under I to hear Mr. Jensen's claims. And so, the whole basis of our argument is that Congress has provided a framework by which protestants can have their claims reviewed and it's 15-15. And as we've discussed, it directs the agency to do it within two years, and the large majority of time the H.C. does do it within two years. But if the protestant becomes frustrated with the way, Congress at the time of the 1970 act, deliberated this exact issue and included in the legislative history, and this is included both in the Jensen trial court decision as well as the Tatchee, the Senate report, number 91-576 at page 28 for the Customs Court Act of 1970, provided the state that importers concerned about unreasonable delay at the administrative level are fully protected by the new provision of Section 1515B for obtaining a salary disposition. So our view is there's two options for Mr. Jensen. If he doesn't want to go the route of the salary disposition, then the proper course of action is to remove the litigation that is prohibiting customs from acting, and allow the agency to do what it intends to do, which is review these claims under 1515A. If Jensen, however, does not want to wait for that substantive review, then it has a remedy available to it, which be filed request for accelerator disposition. And if all those things happen, that is to say everything up to but not including 1515B, then the agency, having, although having represented it, would get this matter taken care of within 90 days, could take as much time as it wished, and there would be no way the Mr. Jensen could obtain relief from a court. Is that correct? Yes, to the extent that Mr. Jensen doesn't elect 1515B. That is, I may not. Yes, but from our perspective, that would be that Mr. Jensen is choosing. I mean, all of this is within Mr. Jensen's control. If Mr. Jensen seeks a substantive review, then the remedy is to wait for the agency to give him the substantive review. Let me ask you this question, and this pertains to the question of whether the matter that was raised initially in Mr. Jensen's original opening grief. And then at much greater length, and his reply raises to whether Section 177-7 says what you say and says. He says, and you're familiar with the answer. Certainly, I'm sure. So I won't go through the entire thing. But he says that protests by virtue of 170 are excluded from that provision. If he's wrong, why is he wrong? Well, he's right to a certain extent, meaning that we agree that your standard protests aren't subject to 177.7, but the reason why that regulation prohibits the agency in this circumstance is that 177 encompasses AFR, the applications for further review. And that comes in under 177.1, and 177.12, as well as 174.25. And those are the provisions. It defines what a ruling is. And under those definitions, it encompasses an application for further review. But that wouldn't happen. That's not the initial decision on protests, right? Well, no, what ends up happening at the administrative level when you file a protest is the protestant can it look like to have further review be done, which means it's forwarded to headquarters to have this application for further review. The protest is suspended under the application because the court acts at the direction of headquarters. So here, while 177.7, technically prohibits the protest when we decide it, it does prohibit the application for further review from being decided, which is the province of headquarters. The protest should not be decided, correct? No, your honor. The protest has not been decided and can't be decided until the AFR has been decided because the court acts at the direction of headquarters. So it's sort of like it's a dominoes fact. We need the AFR needs to be decided, which contains legalization. But headquarters does get involved in the application, right? No, well, so I mean normally the protest just gets decided at the port and headquarters never hears that, right? In the general sense, yes. But so this is one of those cases that headquarters has grabbed. Is that a fair statement? Well, I would need to look at a protest and see whether Mr. Jensen shows an application for further review. There's two instances in which the headquarters can review an issue. Either the protestant can elect to have the headquarters look at it or the agency can suspend it to headquarters and have... Yeah. ...the only one is the headquarter's level. Right, your honor. So I would need to look at the protest and see under what circumstances it was then forwarded to headquarters for review. But the reason why the agency can't act in this instance is because under this regulation scheme is because there's this pending AFR. But generally, the policy decisions by which the agency does not decide protests or applications for further review when it's pending before the court is administrative efficiency. If the court should come down on a legal decision contrary to how the agency views that legal issue, the litigants in the agency would have to undergo further work to undo the decision that they made that the court disagrees with. So the agency has developed this administrative policy, both for protests and for applications for further review, that if the... If it matters moving to litigation, it stops all action because it doesn't want to contribute with the court's doing or have to redo whatever work was done to the court to disagree with this position with respect to legal issue. For these reasons, we submit that the trial court was proper in dismissing its action in that the stretch provides stress with a remedy and Mr. Jensen needs to follow that stretch forward. Let me ask one further question along the same lines that I question Mr. Junker and that is, do you perceive there being a difference of substance between a deemed denial and a ruling, assuming it's a denial by the agency under 15A, which the agency has an obligation to state reasons for its decision? I would say the parents, yes or no, and I think Mr. Junker's point illustrates that depends. If the litigant would like to have to just review of its claims, then I don't see any difference because the statute provides the door by which they give to the trial court under A. If the litigant seeks administrative determination to assess the viability of its claims, then there would be a difference, but the statute allows the litigant to obtain that and that is going under 1515A and allowing the agency to conduct its administrative review. But not if the agency simply says we're never going to decide this. I think I'd be an extreme incident, but the agency is, their obligation is under the statute very seriously and has baked in internal control. All but 9% of the cases are apparently. In 2007, 8%. Yes, but the majority of those is because of pending litigation, so it's not as if the agency is circling into the file. Thank you, Your Honor. Mr. Chairman, you have a couple of your honor words, but I don't. Before I respond to some of this point, I want to address something so I don't run out of time. We also have the issue of the failure of state acclaimed upon which relief can be based. The arguments are fairly fully set forth in the briefs below and reiterated in the briefs here. I would ask this court that if they find jurisdiction and find that we have not failed to state acclaimed upon which relief can be based, that essentially there is no further argument to be made before the court below. And so if the court here finds that there is a basis for acclaimed relief that any remand, go to the court with an order that the writ be issued and consistent with its decision. I would just point out a couple quick things. If you look carefully at the record and we discussed this in detail in our reply brief, all the protests are at least we thought, but we were never confirmed to us. It was never confirmed to us all the protests were consolidated under a lead protest. That was the communication to us. So this idea, there was some AFR and all the other protests were on their own is not an accurate description. I would point out that with respect to the claim that part 177 and the rules there under a file to prevent a ruling under an AFR as opposed to no protest, that's not borne out by the regulations. The statutes, 1514 and 1515 refer to in reference AFRs. They are matters arising out of part 174 which applies to protests and matters arising out of part 174 are excluded from consideration in the rules within the scope of part 177. The litigation, nobody suggested the gents, it's clear in the record and I can represent the court, nobody suggested the gents until the motion to dismiss was served. If we just withdrew our litigation, we would get a ruling based on the draft. Now they've made it pretty clear that that's the same time they're saying they can't. That's what I don't understand. They are speaking at it both sides of the 90% area. I perhaps misunderstood Mr. Miller. My understanding was that if you withdraw that litigation that they will proceed decide within some totally 90 days. If they're not going to comply with the statute so they have to rule on what basis can I assume that they're going to proceed on an offer to avoid litigation release in those case. Force if the case were dismissed and the government attorney in the court of international trade affirmatively represented that a decision would be forthcoming in 90 days. That would have some consequence. Your Honor all I can say is my client of statutory right to an administrative review and a decision we have not obtained the benefits of that statutory right given to my client by Congress. You're asking me to give up my pursuit of that statutory right in the face of this really sad history. What about what Mr. Miller has said though today? Well Judge Price and just referred namely that the agency would proceed, customs would proceed to issue a decision. With that and three dollars your Honor would give me a cup of coffee. We have no reasonable basis to assume. I mean Mr. Counsel is an honorable man and we've argued before but my client has to look to the history of this case. We have spent time and money. We waited two years patiently for the statutory decision. It didn't come. We spent months inquiring about the status of it. Nothing came. When it did come. We clapped for clarification on whether all of our 300-nade protests were included in the consolidated decision. They wouldn't tell us. We came up against the date by which we had to file a case, protectively in the event that there was some denial of which we didn't receive notice. We got no response. We had to file the case. We filed the case. They come with the motion decision and the course of that motion they say all you have to do is let's draw the lawsuit, protective lawsuit. At that point we couldn't and I'll tell you why. I suggested in my brief. Because since after the filing of that case, Hitachi came along. The issue in Hitachi was if the agency does not rule within two years, our protest may be deemed allowed. We kept our case in place. In the event we could obtain our remedy through the Hitachi case. It's supposed to happen to proceed with our case. No disrespect to the customer service. I need no disrespect to the customer. My client has no basis to assume that this generous gracious office of the decision. From the judge and a draft decision, the judge encouraged them to show us what we had never seen. It's going to give us the remedy. We are not going to waive our rights in the hopes that the customs will give us what statutorily they have before and the required to do. Very well. Thank you