appellate this morning i'd like to address two main issues st i want to go straight to the question raised by this court when you requested supplemental briefing on whether the letters by customs and border protection to the domestic and plaintiffs here are final agency action review of all the court and nd i'd like to address whether customs has ignored its own regulations as well as the intent of congress by pursuing payments to injured domestic companies many years by this court and asked for university earlier this year are met in this case demand letters by customs are the consummation of the agency's decision making process and the action is one from which legal consequences will float the ashford case which he decided in february involved a veterans administration letter which gave the plaintiff's educational institution an opportunity to correct deficiencies in its program this or begin proceedings to prevent the these companies from using other customs privileges is the only legal consequence really the it starts the running of interest in your view i know had a choice of compliance which would require significant financial investment or noncompliance which would really risk serious criminal or civil penalties here where we're risking serious civil penalties and not not as a action on the final agency rule enforcement is not the same thing as a final agency action that has as the legal consequences a demand letter that is not responded to and not complied with  has legal consequences and in fact the in some respects they're more onerous than waiting for the customs service where the justice department to sue the my clients because here as interest accrues and  we have no way to stop that our our wrists get greater and in fact a lousy agency to actively punish my clients by having the case go longer and longer and puts in a greater risk if they don't comply then they are going to be paying more so there is an immediate consequence because you're at legal risk at that time you don't need and i don't believe i've seen any penalty from yes well the agency does have the ability to effectively stop these companies from exercising important privileges as well it doesn't threaten that in the letter but that's one of the consequences of failing to pay your debt to the to the agency so there are other things that the agency could do beyond simply imposing interest but those aren't tied to the issuance of demand letter they're just tied to the failure to to to pay amounts and do right they are yes they are yes but the demand a demand to pay the amount to do and and again if the standard invented versus spears is a legal positive or low in terms of the penalties there's no  it was surprising to me and i'd like you to explain maybe i've just been ignorant of this but when the briefing came in the supplemental precinct on this question the amount of authority that was presented to us is tiny and i would have thought that the government issues demand letters for payment all of the time  y what do i make a vat we should be we should we be worried here about deeming this to be a final agency action because then all kinds of demand letters would be as final agency actions or is there something distinctive going on because you know a couple of district court cases that the government pointed pointed us too seeing what's i guess was all that government really pointed us to so can you help me understand what seems like a very common kind of thing for the government to do and yet they're being extremely little law on the final agency action issue raised by demand letters by the way that one of the cases that the government closed as well as the smyrna case which goes in the opposite direction which says basically a demand letter is the final agency action for the right time and that was distinguished in the back and in its opinion yes so but you're right your honor if there is very little case law in this area which surprised us as well that one thing that i will say distinguishes this case from the affected domestic producer so there is nothing else that could be done other than to to sue on this demand letter and it's been very clear that that's the government's intent we again with do do that then you can raise your arguments in response to that right and yes we tried to get your honor we have filed the protest even though it's not clear this is a protest the bill a levy or exaction the government ignored about does every run of the mill demand letter generate litigation and my answer is no for the reasons i stated and one of the reasons as to why every demand letter wouldn't be reviewable under your theory because the in this instance the agencies already declined to use the other options available to it administrative off that and already had the money paid from the from the  treasury under the judgment fund to satisfy itself there's nothing else it could do here other than then sue to collect and have interest accrue in the meantime ok the government still has a right and perhaps an obligation to sue to recover the money apart from regulation right now know it at has no right or obligation beyond what the regulation applicable in the situation where there is an issue as to whether the importer has overpaid are underpaid duty and the is the effect of that on them the burden mammoth distribution yes if the regulation isn't appl the government has a right to sue to collect overpayments just as a general matter under the supreme court case that's right no it does not your honor the the clear that it's intended to benefit the messick industries who've been injured and if you if you go and even look at one of the cases cited by by the government  and looking at the shea sydney and other cases involving whether you can get claw back the canadian lumber to case against the c i t cases not not binding on you but the cour declined to see recoupment there quote when the government grants or distribute money to parties those parties have some rights rely on the money they receive after a constant threat of disgorgement recipients might be lo expend money for the purpose for which it was given fearing that they could not repay the money in the event of a court order this was in turn frustrate congressional intent in granting money and the reason why this finality provision is there  prevent the intent of congress to be thwarted by having the government go back and say anytime we want to we can take that money back so there's a reason why that regulation there had not been there  the congress would have been very upset with the drafting of those regulations and the application of them i don't i don't remember but what's their federal we want to make sure that affected domestic producers get paid promptly and so we're going to do that and get that money out the door but we're going to subject affected domestic producers to so they made it very clear that all distributions will be final except for that one situation that they've laid out in the federal register as the purpose for for adopting this regulation so i would say yes  finality regulation goes to the heart of implementing this statu thank you a hearing i will give you two minutes or a bottle thank you yes make the coach say for the united states may it please the court we respectfully request that the court remand this case with instructions that the trial or court dismissed as cases not just issue paul because customs issue and demand letters to daiquiri do not constitute final agency action how come you didn't raise that issue earlier in the case quite frankly your honor i did not think of that issue earlier in the case and the chalet we move to dismiss this case for failure to state a claim on other grounds and i apologize to the court for not even having considered making this argument however as a direct result of the court's requests that the parties submit supplemental briefing on the issue we have definitely concluded based upon the law that we have reviewed that the issuance of demand letters case that i've ever handled where there has been a challenge to the issuance of the demand customs issues demands in connection with penalties there are no challenges to the demands in connection with penalties in fact after the agency or after a defendant of later defendant importer does not pay the statute provides for customs to file an action a penalty action against the importer and within the context of that action all issues relating to the assessment of the penalty se but to address that particular question this is not a penalty case the demands issued here were only demands for the amounts of the overpayment per the regulations if the mounts were not repaid interest would begin accruing at three percent can i ask you this this question so you you say i think a page twenty of your brief not only does the united states have the authority under supreme court case worse than other cases as well to seek a return of the overpayment but you say the united states has the duty to do so so what practical  issue should we be thinking about you say you have a duty to seek some money you say the decision is utterly final you have an exact dollar amount why should this suit not proceed in the very same form as not even a choice of form issue it does seem something very odd about worrying about final agency action in this particular i'll start with for in the event that customs makes a determination to refer this case to the department of justice this case would not be handled by the court of international trade it would be handled by a district court under under what statute i don't know the statute for district court your honor but i do know that under section  not fall within the scope of the court's jurisdiction therefore the united states can't bring this collection action to the c i it would have to pursue this action in a district penalty action and that involves negligence gross negligence and fraud in connection with the importation of merchandise this doesn't fall within the scope of that that penalty actions are covered states with that have to sue the surety so so your view is that if you if this suit is dismissed and you fulfilled your declared duty to go and get the money you're going to go to a district court and presumably to a regional circuit to have the issues about the interpretation of the regulation under the c d s hashed out if if the agency makes a determination to refer a collection action against dac in a reka to the department of justice the department of justice has an independent cliquey sion to make a determination as to whether or not to commence such a litigation if the department of justice determined to commence such litigation it would then file suit in the appropriate district court and i apologize to the court because we are not there yet the only thing that has occurred here is that customs has followed purpose for these purposes is actually a genuine debate about the scope of the regulation and then maybe not so much a debate about the authority to go seek over payment if the regulation is is simply inappl e a different question about final agency action yes your honor is that a question that is jurisdictional in the particular sense that we are obliged to address it even though you did not present it as a as a defen nd part of this case which is the court's judgment what i was going to say is that the rights and obligations were determined within customs regulations and  because there's no final agency action appeal and there was no trial decision i believe and so the court could make that determination if i recall correctly so it's a slightly different circumstance here decide to question the the final agency action question and therefore because we were deciding it we didn't have to decide if we were obliged to decide it which i think maybe is you no reasonable grounds to disagree but let's assume for a minute that the three is tied in the regulation to be two so that even be three is only about the shrinking of the pot for distribution and not about the increase of the number of claimants on the fixed prop and we have a increase we have the latter case right where where suddenly there's a new claimant as opposed to withdrawal of some of the money in the pot because one of the importers turned out to have overpaid assuming that b three is not applicable then why doesn't  af express regulatory intent that money shall not come back be taken back by the government in this situation customs not bind the government the united states in that way it explicitly made a determination as to final and conclusive language in connection with the liquidation and relinquish nation of importation and express fully congress express provided that the liquidations were final as to all parties including the united states congress has the authority to do that an agency does not here as the so just just just just to make sure i understand if i'm understanding what you're saying to be that even though commerce commerce or customs here that promulgated the regulation i apologize i may have said commerce but conclusive the distribution of money that turns out by later of events to have been too high a distribution that it did simply had that would have been outside the congressional authorization of regulatory authority that is our position ok the c d s always silent on that but that is not something that  customs could have taken upon themselves to do but i guess assuming that customs did have the authority does the regulation deal with that situation and purport to say that the united states can't recover the overpayment back the regulation does not restrict the customs from attempting to  recover erroneous distributions if i may the government has not attempted to collect any monies from daiquiri i just wanted to clarify that the government has not exhausted any other alternatives i want to correct that for the record your honor they pursued the collection they pursued no offsets all that customs has done in this instance is to issue demand letters that provide notice that customs believes that the over payments were made and the next step here would be to make a determination as to whether or not to refer this case for collection that determination a referral for collection would be a final agency action of sorts but even then your honor the determination as know where i was going with that your honor is actually quite the contrary what i was going to say is that that's even closer to a final agency action than this however the actual action would be that would reka would be the actual filing of the collection action in court and then the court would determine whether or not the united states was entitled to reimbursement and the court would determine in making this determination whether or not dakka reka are required to pay interest which is just a regular assessment of interest and make the determination as to whether or not the customs to either provide full distributions for qualifying expenditures when there is enough money in the special fund to do so or when there is not to provide aretha have received the benefits of the c d s away however they will not even though they chose to participate and receive benefits not to fill their obligations to re supposed to be used to invest rehire and accomplish the other objectives to help injured domestic industries to suggest that the regulation that customs but in to implement the purposes of the law would not apply in this circumstance has no basis and i guess that's a problem that i have with that is that what you just said seems like something one could say about a very very wide range of statutory authorization to pay out money it's for the benefit of the recipients and yet it can turn out that too much was paid and maybe even turn out that too much was paid based the later facts and i'm not sure why that would change anything but that's the reason why the law has limitations that's why the agencies have such limitations that's why and after a certain amount of time because it wants to have certainty so there is there are many reasons in the law for certainty many reasons laws say at some point we're not going to allow the government to change its mind