initiated an administrative review to determine whether in fact there was any dumping liability for them congress rescinded those reviews and publish notice to that effect in the federal register which in turn notify customs that those injuries were ripe for liquidation and that their six month time period in which to liquidate you know trees had run for clipper which is one of the exporters yet had its own previous any goods were enacted substantially modified to protect both importers sureties and other parties involved to ensure that they received a fair due process proceeding throughout those provisions are meaningless without two thousand four hundred and fifteen because you can go through the whole process take two or three years with customs and commerce department and whoever's involved at the appropriate time and at the end of it customs can ask and not always nicely that in a poor wave it's rights that it's had in this whole process they're waving rights they were established by congress after a long time a long actually be liquidated at the end of the process the whole process is going to be moot and so it's going to change in a lemonade rights that were created through a long at a slow process so this is more than just shelby barred and interpreting the language bar and how it applies in one statute compared to the statute and our argument is that it has to be in this situation a mandatory believe it says it's a statute of limitations when it limited the private parties right to seek an extension and just he did not analogize this because i don't believe this issue was actually before him in this manner it was before him but it was argued this way in a plea because the decision he made analyzing and he was just to case was different the statute was different the obligations were different and they did not have this underlying historical has different obligations at the lower levels with the process going forward and we argue that the one thousand five hundred and four obligations are automatically customs a be mandatory obligation and if so it will keep the entire legislative process intact and that argument and that that's that analysis i don't believe was in termination they should be liquidated at the rate asserted by the importer of the importation the government argues that the bonds that were issued assert that rate for a new ship a new ship or importer responsibilities in establishing the amount of bonds to be to be established that is a totally that is always hester because the port director has to protect the revenue and at the time of a new ship or import they do not that new shipper does not have its own any  determine any dumping review to determine what rate should be a pluggable to it if any and until that decision is made well i guess that may be true what i'm a little confused about is the district the c i t judge refer to column thirty four where the export are going to your point he asserted the amount of the anti god the duties cured by law and that was in fact the all country right but that has that but it's got the word that in it and it shows that that rate was not applied to the importer on importation what happens is when the process is completed three or four years later and if you look at some of the bonds that are there in the appendix you'll see handwritten changes to the original type in three bonds they eliminate the bonded cross it out because then at that time they are applying the new rates until that time the importer has not asserted any rate although all that information has to be on the customs and tree for and because of that the imported wouldn't automatically know imported automatically declare leo a three hundred and seventy seven percent dumping duty of products they've never employed in the us that's the purpose of the commerce review to determine if that's true or not and so the customs injury documents have all the information but they're not that a lot of the information on it initially is not that asserted by the employer what it seems that the liability is going to be he doesn't know at that time and that's the whole basis of this whole new shipper process that's been going on for years once once a new shipper comes in and imports goods it's got a bond to cover it if it does all of the at the all country rate at the end but at the time of that it doesn't know what it's rates going to be and just like in a regular dumping of review when the importer may already have its rate it doesn't assert any rate it will serve an old rate if it's got an existing rate but it's it's going to even though its bond will also have knows that it may eventually have to pay the amount of the surety for which is the punitive all country rate but it doesn't know that until it's gone through the entire process i hate to take your time with this but i just have a question that isn't on the issue raised but fifteen opinion he rejects your thing which i think is on appeal about the notice in the single transaction because you haven't shown you were substantially prejudiced but on the continuous bond entries he says there's a question of fact we got to go to trial what ever happened to that issue that issue was not an appeal from the we are looking at the both parties the government and we waived that issue and it was going to require another trial to determine how much might issue though he did  was left in that opinion as potentially going to trial what would happen with continuous bonds because they run for a period of time and cover all entries that come in that bond had been used up in another case so we went back to the co the court that in fact your honor didn't have to worry about the continuous bond or a trial on it because there was no money left in a continuous bond for the consolidated case so that's why it went away it wasn't that the government was willing to go to trial we were ruling to go to trial for a legitimate issue but that issue had actually passed on so it was no longer necessary your honour's with respect to our cross appeal there are two issues we believe the trial court heard wh inconclusive as to everyone and that's what happened here in fact they act protested the inclusion of six hundred and seventy seven g interest in the demand that had been made on it by the government hit how ever six didn't perfect its rights and then bring an action in front of the c i t it waited until the government brought a collection action in that scenario that liquidation became final and conclusive for example if there had been an under in that liquidation the government couldn't have come back and sought more because it would have been final inconclusive as to the government as well so there is parity there this court has been very clear about when things become final inconclusive in fact inconclusive because a hack didn't hurt preserve its rights by bringing an action before the c i to the c i t v court kind of got a little confused in actually perceive this as a an action based  contract no yes the customs bond is a contract between the principal the importer and they have i mean there's no question there was a change of money and there was an agreement as to what was going to cover the governments the beneficiary of that bond but with respect to raising an affirmative defense to a final and complaints of liquidation the fact that there was a bond is irrelevant the fact is is that the rule the rule compels that once it's final inconclusive you can't raise an affirmative defense that could have been raised as part of the seven factors in fifty isn't a question of whether the government is legitimately entitled to six hundred and seventy seven g interest in this case they're absolutely not under the statute but you are saying th was the right to challenge that what about the cherry hill case the cherry hill case seems to me to suggest that they're not challenging in this case the liquidation but your attempt to collect the  ac bond after the importer defaulted so when they fall within that the cherry hill rubric such that they're not prevented from making this assertion at this point no your honor they would not fall within the cherry hill rubric but cherry no rubric was a scenario where there was a final liquidation and the government sought to relook with aig and correct something and that's the point there was finale under cherry hill the government wasn't intitled to relive again outside of the scope all the time period when it relate again so it became final inconclusive to the government its final inconclusive to a hack and indeed they or challenging the liquidation because they're challenging the six hundred and seventy seven g interest which was buckled up into the liquidation and the rights of a surety sit in the chair but they're not challenging the one thousand six hundred and seventy seven g interest in the liquidation they're challenging your right to collect it from them because the statute doesn't allow you to collect it from them it only allows you to collect it from the  case right but then suppose the importer went belly up is the government then turns to the surety and says now you've got to pay is it your view that they surely would have to pay the six hundred and seventy seven dollars g s interest as well even though the statute clearly exempt them from but there's also the possibility that a poor director say an importer didn't do a cash deposit and the port director became concerned and wanted additional collateral and sort of single transaction bond in that scenario even though that and seventy seven dollars g has nothing to do with respect to a bond in lieu of the fact is is that once something is inside of a final liquidation surety is required  is required to bring in a protest which they did it and then they have to bring an action before the c i t if you sit on your rights when you are capable of bringing them you cannot then be heard to bring them as an affirmative defense because you're things occurring here the surety of standing in the shoes of the employer and has a final liquidation it could have protected itself against the final liquidation and been able to raise this is the defense would have actually brought the action itself and would have raised it  affirmatively in its own action against the government saying that demand i don't have to pay because i don't have to pay the one thousand six hundred and seventy seven look that's why i tried to give you the hypothetical where it was actually an action against the importer where it would have been properly assessed if there was a cash deposit by the employer the th every seven interests of them properly assessed and then suppose the employer goes belly up the government has every right to collect and against the surety the surety has a bun posted it seems that the surety ought to be allowed at that point since it had not been the defendant  say no under the statute we can't be it can't be sought from us actually then under that hypothetical your honor with the the importer who blows up the government and then turns to the to the surety for payment at that point in time there would be a demand that s fail to do so your honor secondarily counsel yes let listening this is very interesting listening to the argument and the rigor of the government's position they see really wonder why the statute of limitations and the supreme court has said the only time you can't waive is when it goes to the jurisdiction of the court because parties are not entitle to tell the court what his jurisdiction is so when there's a scenario where someone say the move it and that's not the scenario we have here with two thousand four hundred and fifteen is exactly not that it uses the language shelby bard which to play fun case has reviewed and indeed this court in florida versus the united golden ticket to waiver it doesn't matter it's jurisdictional you can't waive jurisdiction it went through that analysis and found that statute similar to the one here and on aware of any case and i believe this will be the st case  yes your honor i do and i also believe it's compelled by this court's precedent adopting way far in the for versus united states and indeed some other some other cases that this court has ruled on so yes i believe this court is consistent with the supreme court and that when it comes to the type of things processing language that is found in general made an argument here in the reviews that yes i mean the supreme court hasn't absolutely put close to it just as you need a clear statement and now it's up to us to figure out what kind of statement is sufficiently clear so your friend makes an argument that the circumstances of this statute and everything else going on here mixed sufficiently clear to be a what's your response to that i mean there are there is wiggle right your honor my response to that is that it is absolutely not jurisdictional there are other issues in this case that clearly a hack is is passionate about but the fact of the matter is is that they have had an opportunity to address all of those issues in the front position as a plaintiff and it chose not to it also have the right to say to the government you know want thanks but no thanks i'm waiver i because as far as i can tell no structure of limitations has ever been cited and i haven't found any which says however you can waive the center of the magician's just good for whatever reasons here they say that there was so in that any statute of limitations doesn't mean what it says as long as you can persuade someone for whatever reason or for no reason or ignorance to waive it that can i go to that  absolutely can because the only thing that stops it is if it's jurisdictional because no one can tell the court what to do however a party can enter into any rights that it wants to enter into and when we want to waive the statute of limitations one is saying is if and when you sue me and you sue me too late i can't raise that as an affirmative defense that's the way vocal defense under under the rules if you forgot to raise it in the st instance it's bill what so i understand the supreme court case and whether i like it or not i'm stuck with it right you can't of liked it because the government was completely opposed to the position the supreme court ultimately dop it favors you here but it was not a position the government thought correct in the supreme court briefing that being said in that case it was even worse didn't see forever barred and i remember it right the word i think with for ever bart and the supreme court unless concluded that was not a clearly expressed intent by congress or to be jurisdictional for over a bar i mean if i talk that way to my children they turn around and did it there did something there after i mean i just can't imagine what the consequences of my health but i think well i think my probably tell you how that would go over in our same birds that action i think you know i think with respect to forever barred because it's limited to activities by a party and has nothing to do with the court in that the court show forevermore it says the claim shall be forevermore and that that's the distinction and unless congress chooses to marry because i don't want to be the magic language i'm just curious because i didn't get it of the supreme court opinion if forever barred it isn't enough to make it jurisdictional and what the supreme court said in that case was has to be clearly stated i'm not sure what it means because i i'm struggling in my own mind to come up with a clearer way to state it than to use the term forever part of what made me think of this was just newman's question are you saying that in order for something to be jurisdictional congress have to say this is forever part and this is jurisdictional or forever barred and that means you can't waive it i mean is that th kind of statement that is now required in light of the supreme court jurisprudence i believe some statements somewhere in that neighborhood something in the provision that says the court can't hear it the court cannot accept it in that's in the court must dismiss it those types of language in that type of a statute of limitations i think i believe that would convey congressional intent that this is not waive bill and it's inexplicably intertwined to what the what the court does because what we're dealing with right now is just with the parties are doing and of course the parties are one thing the parties can do for example if if you bring your your action case if i i may not remember the facts right but i thought that this statute of limitations was actually in the section conferring jurisdiction wasn't it it was actually within the rubric of the section that confer jurisdiction with that by implication or is that not enough because it's not a clear statement i even though it's in the jurisdiction section from the well this is not within the jurisdictions actually but if it had been what i understand it was for example our jurisdiction for the for the c i t unclear but one of the things that seems the case law seems to suggest is that when congress has designed designed a scheme where jurisdiction is in one area and statue limitations in another that that is an indication that cases prior to that but congress is expected to know what all of its courts are doing and so the quite fine case would have worked its way up and if even before about the supreme court i mean congress could have said maybe this is a little too ambiguous we don't like the way we've drafted it let's change i just have i just go back to what i said a regional and in this particular situation two thousand four hundred and fifteen is intricately connected to the import procedures under fifteen or four that were established by congress to protect sureties to protect im because somehow you felt that you didn't have a choice right and that you had to wait i mean otherwise you come in you have a choice your you know sort of political consequences one aspect of this to take your word for the fact that you were worried about what the government might do it in other circumstances you were sort of in voluntarily with choir to wait but i've been receiving clients for a long time in this in this area and i know every time one of them is faced with a situation where the government is trying to impose something on them or asking them to waive something so they can have a little more time to do it every time they acquiesce to it because they're that i just don't know what we're supposed to do with well i think what you do with it is you've you look at the context of the any dumping procedures the timing involved the obligations of the notice obligation you mentioned which  could provide notice of argument which they didn't the government didn't didn't address and they waived their opportunity knew that but the point is that was a long process to create and get all the parties and the government to create the fifteen or four procedures that are mandatory prison you can't waive a failure to liquidate within six months one of what industry review is is is  but you can waive the right six year period but when the customs comes nasty to it to file a lawsuit against them fortunately for the part they said they couldn't they couldn't wait my point is that that process that