liquidate and render her testable decision and the import of believes that it's due a refund of its entry customs answer four years ago was the importer is supposed to wait and either have to wait for a protest a bill decision that it can relief so why isn't that a proper thing to those done here the c i t's discretionary dismissal for its claims the first time and then again the second time was based on its decision to dismiss three  you in the exercise of the discretion that you can't take into account things that happened after the fall if it's implicit i'm not sure that any court to any case says you can't take and post the post complaint actions in refusing to exercise jurisdiction but this court didn't say in my context that where exercising jurisdiction would be consistent with the declaratory judgment act then dismissal is rarely proper and here exercising its discretion is consistent with the declaratory judgment act which says that a party can stop waiting for the other side to act and bring its affirmative claim it's also inconsistent with the residual jurisdiction provision which says that which allows an importer to challenge administration and enforcement so basically for the challenging the ongoing administration of courts claims at the time a private suit is inconsistent with the being liquidation provision which says that in him or here is that it's inconsistent with the declaratory judgment act to force an importer who has an affirmative right now to refinance to not not be allowed to have that right heard and instead for importer back into a later administrative process right that court said last time that what customs was really doing was saying that ford should have exhausted that an importer should always have to exhaust and go under fifteen in one day jurisdiction would allow all of the claims to be considered together at the lowest fulsome opportunity for the court to receive the best of out of information and that decision your honor was based on two two assumptions first that the first three claims couldn't be heard under fifteen eighteen when i because the court held them on timely and second that board was going to lose all of its claims in this action and thus the that the the i c n n a action would need to reach the merits of the actual liquidation decision that's considering the facts against ford admitted but it is correct is it not that if you lose the timing issue that you are still going to telling that the liquidation only one fact this court needs to know to know the court wins on its i action and there is no need to reach the merits in a action and that isn't that the records show that between two thousand and six february when customs matter of law you don't need to get into all the details nuances about how the how the entries were actually valued customs what this court said in four two was that foreign challenging customs rights to claims when the only thing you need to know is that a three year period of delay for no basis carries no reason in the right which you're doing is you're asking us to decide the merits when we're pressing the jurisdictional question as to whether that always be true if it isn't a porter could bring in i action and then customs could render a protest of the decision post complaints and then say now you haven't an action you can that you can exhaust you can bring in a action we'll talk about all the issues you have the i action plus all the issues that that you say you never need to reach in a action there would be no jurisdiction under i ever because customs could always defeat jurisdiction with a post complaint a that if it had all the claims in front of it that it couldn't efficiently decide the case it was based on a determination that the case had to go into different jurisdictional avenues fifteen eighty one a for it to happen five entries and fifteen eighteen one eye for the two thousand six entries and that decision is incorrect if all nine of them are before the court and the record before the court and both parties have have briefed judgement on the administrative record and both parties believe they're entitled to win if not more efficient to say we're not going to decide and we're going to send you back five years in the process at the time the c i t dismissed or claims on a discretionary refusal to exercise its jurisdiction  already been pending for five years and ford's case is about inaction it's about that these three funds were due ten years ago and custom shouldn't be allowed to basically manipulate the court's jurisdiction by sending it with that that this discretionary determination is flawed because it had an underlying improper basis which is that the three of the claims had to be dismissed because they were time part if we were to agree with you on that wouldn't it simply result in a rematch and for the court to be told exercise its discretion based on a proper assessment of the facts respectfully we ask that this court i don't know that that's a fair assumption by i did not assert because both times the c i t dismissed discretionary only it did so after having dismissed three or four its claims for lack of subject matter jurisdiction so both times it refused to exercise jurisdiction it was based on the fact that i felt with respect to the claims that order dismissed on the discretionary basis it was no such limitations issue with respect to the no but the court did say it was concerned about conflicting results and i think that the conflicting results statement was because those three entries would be stuck back in the administrative process and it couldn't resolve all nine of them at one time so i don't believe that there is evidence that it would have refused to exercise reasons but need not and so i think that under the facts of this case with both parties having reaps the merits it is it is a waste of judicial resources and it is inconsistent with the liquidation statute the familiar with those cases not i am not i do understand that the court had always previously just assumed but not decided that it was jurisdictional and i think if this court decides that it's not jurisdictional it has to assume that the last panel decided it was not jurisdictional because the last panel was expressly decided called upon to decide the jurisdiction of the lower court and was presented with an argument that the time limit was jurisdictional and the and the court didn't rule otherwise i think it other there is no evidence but customs did try to raise the argument of timeliness twice at in front of this court and this court wasn't interested in the argument probably because it's illogical to say ford didn't wait long enough and yet ruled otherwise to say well the important had to act within three or to i guess as the case may be i think that that that's a panel didn't address it because it was because it wasn't a compelling argument and this panel should hold the same and say for properly i would just note that the that this is the initial thresholding terminations that would allow the claim to proceed within the court of international trade under its residual jurisdiction provision in that respect it's the fundamental gatekeeping  results the question otherwise it could not have reversed the finding that there was a lack of subject matter jurisdiction correct when i respectfully disagree your honor for two basic reasons one the the facts argue that even under those facts there were time and then you asked the lower court to conclude that there was a lack of subject matter jurisdiction in the court and good partially on the basis of the time bar and when you came up here you asked that this court  trial court of this panel to fully consider the issue of the statue limitations which requires the court to ascertain the date of a cruel one would assume you have to look at both parties arguments in ford's arguments have an issue of fact related to them an government will have to get to that but on the merits on the substance assuming that we reach it because the merits must be reached by somebody then you can't just refuse to respond and say never mind we're not going to give you your money back how does the government justify its action when ford filed that i had underpaid the government agreed and accepted their a respect to five claims for only three entries it dismissed on this timeliness issue with the remainder of the claim you would agree though that the trial court's discretionary decision in large measure with predicated upon its conclusion that it couldn't reach judge newman's point is that there's two different elements to this case there's the actual liquidation where once the actual accounting is done or would be able to challenge those actual liquidations which would arise in the but that's not them that's what the merits of ford's case with respect to this case this case merits for argues that it's entry dimwitted because customs purportedly did not take some action but that the lower court's opinion is not very long and it it said i begin with the proposition that three of these claims can't be considered in the context of a i and so the only way we can consider him altogether is if we put them under a isn't that in fact one of the the basic predicate for the court's exercise of its discretion and say even if that discretionary determination was based on improper facts we can we can decide the question right now but check each of those questions first  questions that i think the question is whether the discretionary dismissal that was made by the court international freight on the lenient was affected by its view that some of the claims were untimely it seems to me that courts have not only the authority to perhaps also the obligation to see that untimely litigation punitive interactions are brought to  allow it to be reconsidered low that there would have had to have been an analysis of that but it will tolling least in the current case is that right no your honor and i would point the court to page six in page fifteen to sixteen of the this court's prior decision on those two pages it framed the jurisdictional question and on page six of the court's decision it said the first question presented by the spiel is where the trial court correctly applied its own jurisdictional statute fifteen eighty one available to forward to resolve this deem the british an issue however does not get there if we don't have well i believe it was the i believe this court was solely focused on that initial threshold determination based upon the language of the trial they think the courts have had a mistake in the initial determination and the prior appeal well clearly the government had a different position to the extent necessary just to decision and when presented the court shall decide on a review of the whole record and the court shall compelling agency unlawfully withheld or i'm reasonably delay and shall hold on la liquidation and took them more money but when ford filed entry for its jaguar subsidiary and said we paid too much at entry and were entitled to the refund custom sat on that for four years and in fact for the two thousand six entries that the court acknowledge fiction of our customs delayed liquidations of those for a full year after ford filed suit based on no explanation it had already according to custom decided that board wasn't entitled to refund and still didn't liquidate and still delayed for its ability to bring a protest a bill action so under that under that court precedent under the policies ruling in torts favor is consistent with the declaratory judgment act in refusing to rule is improper