well certainly i c p concedes that the court misstated at the very least the standard of review and argues that it was harmless because really the court in effect applied the correct standard and i'd like to point out is that the court did two things first it cited the clearly reasonable language that everyone agrees is the incorrect standard and to be candid this is not the first time that the court of international trade has done that and it's not the first time that the  of claims has done it but the court took an additional staff and stated that this standard means something quote slightly more stringent and simple reasonableness so it's a more explained standard of review that is applied throughout the opinion now it's true that when when the court of international trade made its actual findings it used the word reasonable ness and didn't restate the clearly reasonable nest standard or restate the slightly more stringent standard but if standards or review are to mean anything then we have to take it as truth that the court believed that it was applying the standard of review that it laid out and given the fact that this is not the first time that the court of international trade has done this or the first time of the court of i don't claim to has done it we think that it's time for this part to correct the  i mean if if you believe what i'm saying which is that that it's not just a boilerplate error it actually infected the reasoning of the court work could have been fact of the reasoning of court then that a ferment wouldn't be appropriate there would have to be an i mean i suppose you have a couple of options you could correct you could instruct the court to correct the mistake and do nothing else not wish they just have a hard work for her mr ok so i am yeah certainly the court could do that and there are other legal errors in the decision though that we believe stand on their own and also have to be corrected and some on to the the trial for also incorrectly when it is the government's decision not to appeal so in a couple of instances the trial  mentioned it that the most egregious in our opinion concerns the really the primary issue in the case which was whether customs believed that the white sas didn't conform to the ruling letter  the trial court found as a matter of fact based upon testimony that customs actually did believe that it conformed to the ruling letter that's what the whole trial was about and we lost the issue we decided not to appeal that factual issue we appealed to the other main issue in the case which was the legal question as to whether the statute required customs to follow the notice and comment procedures whether this was act in fact a revocation that required compliance with are careful decisions that are made in conjunction with the solicitor general's office and we decided to appeal just a legal issue which is not a concession by any means that we believed that factual matter to be true  well if if if you don't if if you're not appealing a material issue and this was a material issue correct it was it was a material issue although a this was an issue to trial there was a five day trial where the court of international trade heard testimony from several government witnesses and company witnesses about this very question and it made a factual determination that we're not challenging we're suggesting that through the litigation and the fact that we chose not to appeal it does not mean that we can see that error when we can see the error we make a pretty big deal out of it and everybody knows that we're conceding error because we actually use that language so move on to the summary judgment analysis as i said the court incorrectly or really didn't consider at all the fact that we survived and we just went on the major factual issue talk about there the the reality that it could be their trial it's revealed that the government had no case at all but that is absolutely not the case here the summary judgment decision here was that there was an agenda an issue of material fact as to whether the product conformed to the ruling letter and what the court says is that defendant presented several pieces of information that call into know outweighed that documentary evidence but the question has to be whether the government has shown such relevant evidence as a reasonable mind might accept as adequate to support that actual conclusion and  yeah right so i think it is possible and it is what the seven circuit identifies the said that the seventh circuit says that it's possible that after the trial it could be revealed that the government had no case at  all and that's that's that's not the indication that we got from the trial court's decision this was a fight a trial it was quite a tale there were two rounds of supplemental briefing after the trial including specific questions from the trial judge there was a nine month decision a period before the decision was issued and we just and there was no indication in that in the actual trial decision that we had brought anything even close to a frivolous claim made i'd say one two three four five or six factual findings that we think were incorrect simply as a matter of fact and that the government was in fact substantially justified what we've done in our appeal is point out the primary legal errors that we think that the court should consider and instruct the trial court to reconsider because once those legal issues are reconsidered i think the substantial justification decision really has to come out the other way because if the if substantial justification is what the supreme court says it is which is such relevant evidence as a reasonable mind might accept is adequate it has to be that the government's position on the legal question about sixteen twenty five was adequate and it has to be the government's position on the factual question of whether the product conformed was substantially justified and i'd like to talk about the legal question just for a little bit  which is something that that we did appeal and wheat you can see that we lost but the court of international trade held that it was not a novel issue now whether it's a novel issue bot own decision and when and i c p initially brought the claim under section fifteen eighty one i that decision as we know it was vacated and we think that as a matter a lot it's incorrect for the court to have considered that and since there's no other rationale given for why this is not an a novel issue we think that the court really has to reconsider it without my knowledge and it's prior decision and i'll make a couple points about it i not that there can't be a series of decisions that might make something not nil but when the supreme court talks about that situation we talk about a string of decisions here we had one decision by the same trial court judge that has no legal effect so it's certainly not a string of decisions and it doesn't have the force of law and obviously it wouldn't have been binding anyway and the  anything untoward about the government's position when in fact the one so far is the the on the legal question of whether you can use a notice of action to revoke a ruling it went so far as to say we're not deciding that question for all time we're only please the court as you mentioned i am great to hear on behalf of international custom products and i'll be very referring to them as as i see people throughout so having been driven out of business by the government's illegal actions  simple law in fact it was not justified to reason to a degree that could satisfy a reasonable person a reasonable person would not think that the government's position was correct why not because the government  to follow the law in this case no reasonable person would approve of the disregard of the law and in addition the government took factual positions that its own evidence in its own lab reports contradicted in frankly the court in its opinion which i walk through a little bit not and in this portion just to highlight how you know this is not a close call but i think the court when easy on the government in its description of how weak the government's position was at trial and i can  of reasonable ness in his analysis throughout his opinion and second is you can look at the weight of the evidence generally and say you know no matter how their standard was articulated it would have come up the same way so we know it didn't in fact the send it back down to have the exact same award reinstated under the correct articulation but the standard beside that in the first instance well i don't i don't think the court is nice decided in the first instance because the the language of the opinion throughout decides that under the correct articulation of what is reasonable and again i just want to put point out some of the language in that opinion the court can can focus laboratory tests if you look at age thirteen in the appendix it's own laboratory tests confirm that whites must didn't conform to the room and they be considering the entirety of the record in the positions taken as a court found a position not to be substantially just i think that the government likes to take out individual positions they took and say well this was novel and this might have been justified but the court quite correctly under the standard looked at their position as a whole and i do not want this court overlook the many unreasonable positions the government to along the way in the actual justification regionally for the the action taken by the government and then the post hoc rationalizations an attempt to justified what the government knew it could not justify is based on the typical use of the class in kind of goods generally not on the actual use of those imports although it's relevant with actual uses it's not determine it well in this case the government acted as if the only thing that matters is to defend that position instead they ate grasp that any other possible justification they could find for why what they did although not for the right reasons might have still have been an ok thing to do so they started to scrutinize well well did  entry conform to the ruling is there anything we can assert that isn't conforming with this one how about the stat content well that you know the fact content has to be seventy seven percent or lower or it doesn't conform of course the court found that position was not reasonable and found that the test results in the information evidence in the case didn't support a belief that the that was even beyond that range in addition they said well how about what if it didn't contain the think inners that are stated in the the government went on to you know they highlight in their reply brief we had we had great evidence we at dr bradley a witness testified that it might not contain thickeners and we had diane cutts kolo an employee of i school from eight seven six one five through a seven six one seven that both of these witnesses were found not credible the government position at trial was so weak they put up not one the two witnesses found not credible which is obviously not a common occurrence  didn't marshal sufficient imp evidence at the summary judgment stage to prove its case beyond any issue of fact when the government is asserting you know misrepresentation of factual issues it's very hard to when summary judgment when there are and remember we're talking about the whole position what they do before the litigation and then what did they do during the language is harsh if you look at page eight fifteen of the record the court cites the government c b p knew it was effectively revoking the ruling and be avoided and it was a put the whole government position as a whole was a postmark justification for a position that the government knew to be improper the government acted in this case in a way it knew was improper i don't like that i c p could not merely meet a reasonable new standard it could meet an intentional misconduct stand so given the circumstances the overwhelming evidence that the court sites throughout its opinion in there i refer to you in the in the record of its opinion actually  as a matter of law when it states that because the government didn't appeal it has conceded or you know the court did not as the government's attorney describes did not  the because they didn't appeal that means their position wasn't substantially justified the court noted maloney that is one factor and this is an equitable determination where the courts considering the totality of the circumstances there is no case that sa you know the court is well aware of how appeals work allegation works and that a party is not declaring its position was unreasonable just because it didn't appeal and the court doesn't hold that in its opinion it doesn't say because they didn't appeal we i find that conclusive factor is why in this is at page one thousand in the record by the fact that and mind you even though there was a vacated decision on the basis of jurisdiction there was a complete analysis of the government's legal position with respect to whether the notice of action constituted a revocation so to speak that their position was not going to succeed the court did not say because of this vacated decision the position was not it's a said that it's not is diminished it's not like you were operating on a completely blank slate you the government had a strong reason to believe that that novel foreclose the government's ability to continue making the same legal arguments and it doesn't necessarily mean that that analysis has any effect whatsoever right no legal factor on but it is at least as good as a lot of you article the say here's a complete an taking into account the novelty of it and i would insist there's a number two part of that which is the court said that a novel position is not a basis in equity when it comes in this this introduction of a novel issue comes in is a post hoc rationalization of what the government knew actually thinking i'd like to talk about two legal issues and address some of the facts that i think you just raised first on the question of whether it's a novel issue i see people went out something that we actually probably should have pointed out and didn't really focus on is that the court conceives it's a novel issue but says that the novelty is diminished once you take out that cause for diminishment then i think we're back to it being a novel issue  the second thing is that i c p i think said that  in spirit actually says the exact opposite it says ten different ways you cannot take anything from the fact that the government loses so the fact that the government loses and chooses not to appeal is the same as if the government loses and chooses to a i'd like to just touch on some of the factual overstatements that i heard i c p make first and this gets back to judge me in his question about whether there was substantial justification on the legal question the record is full of the back and forth that  p entered into to figure out whether it had the authority to do what it did it it's absolutely true that the trial court disagreed but what the record reflects is careful consideration by the agency as to whether it had the authority and it determined that it did and there was no evidence of bad faith on the part of the government and this is getting on a little bit into the weeds but on the documentary evidence and i want to remind the court of the standard the standard is not what the trial court believes that documentary evidence and the trial showed it's not about the trial where it's factual holdings we understand that the that we didn't prevail on the facts in this case the question is whether the government put forth such relevant evidence as a reasonable mind might accept as adequate to support the conclusion and the government court put forth documentary evidence from i see peace own plant about a couple of really important things the content of the product the content was being at least according to the documents was being changed to remove some of the elements that make something more like  lastly butter and if you remove some of those elements it becomes more like a better spread and less like a sauce we also put forth documentary evidence about the role of the percentage of milk fat in i c p makes it seem like this is totally unimportant but if you look at the documents the percentage of milk fat is actually really really important and there's all kinds of documents between i c p and its customers about what the precise percentage of the fight is going to be and whether it's going to change the price and the point being that the government put forth relevant evidence reasonable evidence that got us past the summary judgment phase the fact that the trial court didn't buy it does not mean that we were not