think we have a mixture of left handers right handers on this panel so that's not a factor you know not a factor and that's not necessarily the invidious discrimination that we're talking about but while this case is about gloves it's actually about a larger issue which is the constitutionality of various provisions of the harmonized tariff schedule of the united states which on their face discriminate on the basis of gender how many of those are there are probably about one hundred mostly concentrated in areas of wearing apparel and footwear are usually personal articles is that does that include categories in which you say men something or other versus women something or other does that include blouses are supposed to mention but for the most part the eyes in this case the sexual or the gender distinction is explicit instruction and this is a case involving leather gloves and what we have here because in that case there is only one class of property urban and it's being a such with a single rate of duty regardless of who uses it it's basically it's a it's a gender neutral provision but it isn't that essentially the same thing with respect to  know different they have different appearance different tend to be different some different channels of distribution things i've just said that the theory of the terrace visual appears to be that it's a different product is what standard of review applies and whether we have given a sufficient pleading to get that spatter review if there is a financial discrimination in the statute based on gender which there is  decision is trying to impose on a suit this is a question of the standard of review when you apply that standard of review it's not necessarily unconstitutional to have a distinction between men and women or to have a distinction between their products and there are the question is who's got the burdens of justified now this court's holding in the book as this is panel the side of the berkeley case said that when you have facial discrimination the burden the intent to discriminate presume and the burden shifts to the government to show the exceedingly persuasive justification what one of the clubs here what if the characteristics and what's between clubs size seven and a half or a glass versus glove settled down and i would agree that there would be a burden on me on the plaintiffs to make a showing that somehow that was discriminatory in a way that the constitution prohibits it wouldn't be fatal to the discreet victoria ted would not be presumed and then we would have to have a hearing or we would have to make very little we would have to make the factual showing what it already is the actual discrimination if for example or a sales tax and women who buying a lot of have to pay a five percent sales tax and then have to pay a four percent sales well i would be a facially discriminatory tax but well this is just on the category of product right if one were to say that the see that's the problem with the lower court holding in berkeley that's enough to shift the burden to the government to justify the show us why it's justified what the letter court is saying is they're saying ok there's a discrimination it's based on gender it's f example if there were attacks on say getting a teaching license and a higher license were charged for a teacher who said well i intend to teach you know black and minority i think that would be unconstitutional about italy maybe competing unfairly whatever so the government's purpose is to say you know because a large proportion of these in this category of women's clubs comes from italy we're going to have a higher t is that unconstitutional not if they can show the exceedingly persuasive justification but the question is at what point does the burden shift to the government should see in this case in a court of international trade metz you've got a centrally gender discrimination on the face of the statute if i import ten thousand dollars worth of work for men i pay one hundred forty dollars in duty if i pay the same amount of identical gloves for where i only pay one hundred twenty five dollars so at the moment of taxation there's a clear discrimination visited on a i am being taxed more heavily because i have elected to deal in products which are favored by one gender or the other women what if i open a store they're saying you know yeah you've got basically the discrimination based on gender it's being visited on a class of people that we can identify the importers we can identify and quantify the discrimination from some of them so your view is that this is entirely depends on the burden of proof that there could be a lot of justifications for having different tariffs on men's and women's clubs but it's up to the government to justify their rights and the only question here is have we done a sufficient pleading part you're not legit we've got we don't know what their intent was it's presumed to be discriminatory because it's financial now as you were saying before if they can go back and say well we have a higher tax on m because we were protecting the men's blood factory that might be enough or may not be enough the pending on what the court of international trade says to justify the discrimination but i don't think in this case it is because frankly until  i have here again the bishops you know it simply has to be you know the discrimination is facial out of that point there is a presumption  i know in page thirteen of the complaint we say there is no justification for discrimination for discriminatory patterns based on age and when paragraph twelve we say there's no important governmental objective at stake that provides an exceedingly persuasive justification for different rates of custom studio or tax based on gender and that's why we have pleaded that what he was suggesting is what can you show me that after the discriminations occur maybe subsequent events are more neutral and him but that's not the test which challenging the governmental action or not a follow up to the only question here is whether or not we domestic industry or the determination of there sean the some very important difference in the product between the between men and women that justify treating them differently i mean that's what you mean only men are employed in the factory making men's clothes and women in a factory making women swoon i think that would be fairly remote to furnish issues but that's not what we're asking for and one of the regions that we me like i'm going to i'm going to wrap up now but i'm sure there's never been a carriage were official discrimination i was then required another showing of some damage beyond the friction discrimination that's for the damages hearing that's for the injury or damage is part of a case that's not in which we're dealing with the terrorist schedules the uniform tariff schedules which apply to all the training companies in the entire world so so if they comes up with we're going to add five percent to the chair for all good men and goods and congress adopts that we can't no one can challenge that like that that would not be a facial challenge because in order to allege a facial challenge to the equal protection clause the complaint fall under the other category not as men's so it's only on the geisha is that when it imports one product it pays a certain rate and when it imports another product it impairs pays a different  on persons not on products and i think that's the allegheny case where tax payers were assessed property taxes based upon different methodologies and that also is the  example where in that hypothetical the taxes imposed on an individual wearing a yarmulke but here we are only talking about reads of duty on products and the supreme court has said many times that the imposition of a duty is an imposition on the product not on the the individual well it's statistically what if they came in with studies that showed that the importers passed all of the increase with a differential between the two terrorists for men and  consumers that would be a different case that would be much closer to create versus foreign or the bartender or the owner of the bar was asserting a claim on behalf of consumers of beer but they're not asserting that kind that type of claim and they've made that crystal clear if we ever unfortunately ever have to get to the point of defending on the merits we of course would make those arguments but those are really those arguments would go to the justification of the government in imposing different rates and respect i submit that we bible lined and unlined and other globes are separated by lines and unlined because at one point in history whether clothes were lined also affected the tariff duty it doesn't it doesn't affect the rate now as we have evolved and then you know all of the countries of the world the trading companies country said negotiated these rates but there are other distinctions in the even these terror categories other than men and other and the other category is not even women just other than men so there isn't really even if globes were similarly situated individuals there isn't even a clear distinction between men and women it's men and there which includes boys and unisex your point of view the political question here yes but this and not in certifying or not certifying whether japan was complying with the treaty so it was interpreted in a statute not challenging the constitutionality of the statute in the foreign affairs area was interpreted in this statute to issue relating to the structure but here in order if this case were to proceed to the merits the court would have to second guess the president the president's negotiators the hundreds of advisors that participated different than other constitutional as well if in looking at the government purpose in looking to see whether the government has a exceedingly reasonable basis for this distinction it would the court would have no standard and would have no basis to second guess congress and the president in negotiating with one hundred fifty different countries these various tariff categories all of which have long histories and have been negotiated over over  beverages was trying to protect itself from prosecution but the stand the court found standing based upon assertion of claims on behalf of men who had to pay a three percent tax on beer consumption and said because you can't expect customers who are just buying a pint of beer every once in a while to bring this case the bar owner could have standing on their behalf so it is not making that claim it was asked many times by the court below and it does about that because under this court's decisions in for example motion systems a cause of action and a fifteen eighty one eye is based upon the ministry of procedure at that mr procedure and does not provide for monetary relief moreover there is no final agency action here that could form the basis of an administrative procedure act claim the only agency and intercede the agency couldn't respond to which were constitutional challenge but the only agency involved here is the customs service and there is a clear constitutional claim based upon in export the supreme court said citing numerous precedents that congress can impose whatever terms and conditions you want on a waiver of sovereign immunity including requiring the taxpayers to exhaust court of international trade in the language here is exactly like the language in extra a t c a recent decision by this court cited in our briefs which involved a duty drawback claim and similar language to the language here and corn that the party seeking drop back had to file a protest and exhaust its administrative remedies before bringing its claim it couldn't say well that would be futile and proceed under section fifteen eighty one i there is another reason to require importers to exhaust their administrative remedies is that there may be times for example when the constitutional issue might might think it's importing men's clothes import specialist might look at them and say well actually these are other sell you don't we don't have to get your constitutional claim or there may be timeliness issues  but so we respectfully although the trial court correctly held that tilts it feel to state a cause of action still to state a claim for which relief may be provided there were other threshold reasons why the court should have dismissed the case including political question standing and jurisdiction finally on the question of jurisdiction seemed opponent is incorrect when she says that you can't get money back under section fifteen or anywhere i case in happy memory of united states shoe corp the challenge to determination well it seems to me that we've been asking a lot of questions about what the facts are and you keep saying that it's the government's burden to show this to show that they show the other not the fact the fact that one could protest if the government had classified o r men's clubs and we said that's incorrect that we could protest we don't question that we agree that these are men's clubs but then the question of flows from that is purely statutory is the statute which i differential tax on us constitutional and customs this court repeatedly held the customs doesn't have a