ants in this case as you know the i think the law requires that the foreign producers when found to be dumping and and injuring the domestic industry have duties paid for the protection and remedial effect that will have on the domestic producers the very elaborate statutory scheme that this this court has seen a number of times there is one purpose only for this dispatch atory scheme and acknowledge that with regard to the plaintiffs in this case and the four antidumping orders involved here hundreds of millions of dollars have gone uncollected in other words the remedial purpose of the law has not been achieved with respect to what that is one possibility cited the g a o report it said that precisely well it said that among other things but it what it did but it also said and i think and by the way but the point is you want to shift the blame to the government that somehow the government made an every error that you could think up to blame for making and the g a o seems to find that it has there are plenty of causes other than government mistakes or this lack of collection as you call it actually the g a o report points to several errors that have nothing to do whatsoever to do sixty seven because then i would just put more well that is the issue before this court the court went through a very interesting and i think correct determination that thirteen sixty seven applies here at all well i think the court below and one of the areas that we happen to agree with their analysis and what got it right that in fact the the customs quarter act and the and the three hundred sixty seven have to be read in harmony with one another hundred sixty seven was enacted in one nine hundred ninety the understanding was that and that gave supplemental jurisdiction to district courts the the understanding what district courts the district courts understanding was  understand i think you do and i can i ask just ask you to clarify just am i right that the questions of supplemental jurisdiction and third party beneficiaries are questions that arise solely with respect to the  if we were to agree with the c i t that it has jurisdiction but that they're not third party beneficiaries are we still left with only those same claims eight to fifty that would be correct and i would jurisdiction that the that we believe has been overlooked by the lower court as well and i think we need to take that on your unless you want to to analyze the supreme court decisions and jurisdiction can i think that the chief firm has sued the government for failing to collect duties well before the continuing dumping and subsidy offset act was was enacted if you look at count eight and nine of our complaint which deal with failure issue liquidation structure and failure to execute those instructions was ministerial acts we believe that we have a right to sue regardless of whether the wherever there was duties go because the statute has is intended to benefit and to perceives that there will be a automatically quit nation at some point what we are saying is that we do have a right to sue there these are ministerial acts and in fact in international trading case that  point you want to do it on a particular schedule but even the act doesn't contemplate a schedule it says if they don't get around to it there's a there's not a magic there it is you there is a a right to take action under the a p a to compel  agency action unlawfully denied to do force that you can see that was it unlawfully denied if there is no schedule set in the act for them to to take acts well perceives that if they don't take it there's an all there is an automatic remedy while there is a there is a as said the law provides that parties can seek to get look and this is where i think the lower court a little confused about the d m liquidation question to we were not contesting that we understand under international trading and other cases that by operation of law the amount of duty will be fixed through this deem liquidation provision our harm is that until the commerce department issues liquidation notices and until the calmer customs service actually on those we do not get the remedial benefit of the law your question is well can they wait ten years fifteen years for it because there's no statutory deadline in the law that says when they have to issue the that therefore they can continue forever under that theoretical line question and our position is no they can't but at some point we are allowed to under normal administrative procedure rector parties before them i don't believe the question is here is whether or not the failure to act really denies relief to the petitioning party and i understand that there is a a question about with the exception of maybe one clay right well and that's the actually the heart of the question is what does it take to qualify as a discrete agency action we don't agree with the government's characterization of what is discreet we don't believe that discrete and talked of spoken of in terms of the loop on case or other cases involving standing that you have to identify that particular date the particular entry to qualify this as this free what what we understand the lu han case and others that mean as discrete is as being a minister ariel acts as a particular act or a kind of act not necessarily identifying the day and or or e if you know i'm looking at twamley that i mean you've got to identify what happened you're the there are no the only limits as i understand see can tell me if i'm wrong to the claims you've made are a eight year period ye the the question by chief judge rader we want we recognize that there are some innocent explanations for why some of these acts may not have been taken and why some of the duties might not have been collected but we've tried to identify plausible reports by the government essentially says that customs office of cheese council was at the time this is in two thousand and eight after several other reports preceding it at the time assessing two hundred  ninety million dollars in unpaid ante dumping duty bills and said quote this opposite may take this may take additional collection action such as sending importers and sure to use formal demands for payment and referring the contemplating acting or not acting violates nineteen u s c through think one one three point five two because that regulation compels action after ninety days has elapsed it doesn't review if an agency declines to enforce understand the arguments for by the government and the question here heckler does not say that whenever there might be prosecutorial discretion involved there's no way you can have you just review clearly says that it decision not to enforce can't be reviewed but there are there the rest of pechora talks about how if there is l apply if there if discretion is not totally unlimited there can be judicial review under the a p a and other statutes what we're saying here is that customs has regulations customs has statutes that it has to among other things the customs service is required to enter into contracts and occur for collection services so there are there are steps there are provisions of law that customs have to abide by they can't just decide to do things on their own you are we've been discussing count fifteen which gives them this ninety day limit to refer thanks to justice but customs could settle the matter short of referring it to the department of justice and then the department department of justice could decline to enforce both of those would are instances which you really couldn't contests actually the first one we can confess and we have in this complaint because in the in the reorganization plan of  it has violated the law that is one of the one of our complaints they are not allowed to do this willy nilly on their own and if you look at the g a o reports you look at these other reports it looks like they're deciding when they want to do things and acting as if they have unf discretion our point is they don't have unfettered discretion and there should be jewish review to at least make sure that they are abiding by the restrictions that congress has imposed and they've imposed themselves by regulation before they we we should or i would argue be having this conversation or this argument perhaps after the summary judgment stage and after we've had discovery it's unfair in many ways for the commerce department and customs to have this information at your disposal  and without us having access to this in discovery to have that specific information but i will tell you this because this is public information there have been reports that commerce if you knew that the customs service has  written off millions of dollars worth of bonds i'm trying to find the you know the office of chief counsel said that two hundred ninety out of three hundred fifty million or unpaid because of the declared bankruptcy no he doesn't say that he says because many of the importers involved here have disappear have no assets or have declared bankruptcy quote unquote but it but let me find the other cit what he says that most of his claim is after that is most of the will be written off after proper legal review number one he does not have the right as the custom service to to  doing and what was custom doing and where they want to save your last minute yes please notification or by commerce are collected sometimes we have surety is that are in bankruptcy sometimes the bonds don't cover all the duties sometimes duties are being protested as wash international notes and it's brief the government house in fact filed a number of collection actions but obviously those actions are still pending but rather than address problems with russia with a retrospective system in the halls of congress or directly with the agencies sue has filed this lawsuit and regardless of whether one views the complaint through the prism of standing or through the prism of the a p a or through and stating a claim the complaint is simply deficient it doesn't identify any concrete and particularized agency action it doesn't identify any discrete agency action of the a p a rather it's a broad programatic challenge well that's kind of true with with respect to most of the claims as i read them but what about fourteen become fifteen i'm sorry they are they have identified a particular action involving folkloric right in the complaint itself yes i'm  think on the very limited point which is the statute says once you collect the money you have to give it to the domestic industry and don't they allege in count ten that you've killed only in point where money has been collected we're not getting sue sue honey misunderstands our argument we're not saying that the government doesn't take the street actions commerce and customs take hundreds probably thousands perhaps millions of discreet agency actions were saying you haven't told us what they are  in this case tell us when commerce failed to issue liquidation instructions tell us when customs has failed to issue a demand on a bond or tell us when you think customs has referred the matter to justice and they haven't they haven't done there's any lay person have access to that kind of information well let me make a couple points in response to that question first they never even attempted to to submit a for your request and never demand that effort  particularly the bookcase in a couple the party asked for discovery and what the supreme court said was you are not entitled to discovery until you've presented a plausible complain disc a plausible complaint a discovery comes later in the process you have to show plausibility first and foremost so even if you can't find this information or don't know it that doesn't mean you have a plausible  still answer my question about whether or not most of the information we're talking about well it's excessive up to the public well i guess it would depend on what specific information was being requested i mean i will say keep in mind that many of these many of the parties suwannee were either involved in the new ship or reviews or could have been involved in the new ship or reviews so they know the folks at commerce who are conducting the reviews pick up the phone and call them and asked if liquidation instructions work were issued for example i suspect you got an answer and you speak for the government on whether or not the court of international trade is a district court with supplemental of the other points that we made which are that the words power and jurisdiction mean something different the customs court act actually uses those words differently there's also a separate provision twenty u s c fifteen eighty three that actually sets forth the court of international trade supplemental jurisdiction this case doesn't all within that there's no dispute in that regard moreover you have an absurd result if you interpreted the word all powers to mean that the court of international trade has the jurisdiction of district fundamental distinction fundamental distinction between a court subject matter jurisdiction and its equitable powers foremost exist before the latter may be exercised the former concerned the authority of a court to hear and decide given the subject matter of the case the letter concerned the just briefly to address a few of the points that were made counsel focus on the argument that they make that the customs does not have the authority to settle matters we in our brief  dispute that but moreover how were they harmed by commerce settling cases as opposed to how seems even assuming they had identified discrete instances where that occurred how were they harmed by that they never provide any information in that with respect to count eleven and i'd like to use this an example to show why the complaint is deficient account eleven is the claim that customs failed to issue demand letters to we don't contest that statement but there was still a risk in snow is the word sunni's a risk that one of the hundreds of ports over the last ten years that dealt with these entries had perhaps lost or misplaced a bond at some point in time now how could we possibly respond to a claim like that what do they want us to do what do they want customs to do how could we search for a lost on that we don't even know was lost and what would be the ministry of record in a case like that these are this is ministry of record case we have to put together the exists but together and we have to follow the record how would we do so in a case like this particularly with counts like count count eleven moreover as we pointed out in our  brief if one looks to the requests for relief when he simply failed to plead that it's likely as opposed to speculative that the issue that the injury the election of suffered can be redressed by a favorable decision and they don't really thank your honor and may have pleased the court on jonathan cohn for the hartford at least as the trade court held all the claims against the surety defendants from air this because every one of these claims relies upon the same erroneous premise that plaintiffs are intended third party beneficiaries of the bond contracts if this court reaches the merits we've heard from the government correctly why the court should not reach the merits of these claims but if the court reaches the merits it should affirm because to get relief against the sure he's both jurisdiction and the merits and in their incorrect on both points on the merits point the trade court got a precise the correct that plaintiffs are not intended third party beneficiaries and their number of reasons first and foremost these bond contracts are completely silent as to any intention to benefit the domestic producers not a single word about the domestic producers and this court  intention from complete silence second plaintiffs do not receive any direct benefits from these contracts if they receive any benefits at all as alleged is only indirect through the government as a result of the bird amendment and third the supreme court recently decided astra and made clear that contract claims should not be used to circumvent the lack of a private right of action and the underlying contracts have no private right of action against the surety companies and that's dispositive congress did not create a cause of action and with respect this question not provide what congress did not create intended third party beneficiary status is an exceptional privilege plaintiffs have a heavy burden and they've not met that met that burden the trade court got to persuasively correct and on jurisdiction with respect to trade court erred because there is no supplemental jurisdiction here the only supplemental where it would just jurisdiction it might lie in federal court or storks the court depending upon whether there's a federal question the contract claim could be viewed as a federal common law question or a state question there could also decision and with respect the court does ken reach the intended third party beneficiary issue in the claims against the government counts one six and twelve against the government also raise that issue and a supplemental jurisdiction concern of course doesn't apply to the government the court can still reach that merits issue and affirm the trade court for any number of reasons on the merits issue and that merits ruling would serve us very well and prevent plaintiffs from filing the exact same action in either federal court or state court but for plaintiffs to get relief against the surety companies as judge lori pointed out they have to win on two separate issues one jurisdiction t all of the surety defendants other than the hartford for whom mr cohen just spoke and i join in mr cohen's arguments with respect to the third party beneficiary point and so i won't belabor this morning and repeat anything that he said  oddly though i find myself in the circumstance where on the jurisdictional point i agree with the arguments that were advanced to the court by mr rosenthal and i do believe that there is supplemental jurisdiction for the c i t to have addressed the third party beneficiary point i have to be candid with the court this jurisdictional question first of all it's somewhat unsettled and second it's a bit confusing in the sense that the claims against the surety defendants are counts one through six of the complaint with respect to counts two three four and six at the end of the day what the court below found was that because they want to reach the merits and put the cart before the horse in a sense but it must be done that way because where the court came out on those counts was that there was no standing by the  challenge anything regarding the bonds because they have no standing they are not third party beneficiary it's a finding that there's no standing means that there's no article three things or controversy and therefore there is no jurisdiction and yet the court then went on to say i guess because there are two other counts that were born against the sure least counts one and count five it went into a rather detailed analysis probably one of the most detailed analysis that i've seen on the jurisdictional point and whether supplemental jurisdiction under thirteen sixty seven is in fact applicable as well to the port of international trade i agree with the ports reasoning below i will be candid it's not what we argued in the first instance below but we accept the court's analysis because the two concepts are so interrelated i also want to point out i count one which along with count five one and five were the only two counts that the court dismissed for failure is not appeal from so we don't need to talk about that today count one is a count that was brought not only against the surety but also against the government and when these counts as are most of one through six are so intertwined with allegations against both the government and the surety is it really makes no sense to say that supplemental jurisdiction under thirteen sixty seven can't be exercised when the arguments are being made by the surety but jurisdiction exists when the same merits based arguments are made by the government so i would submit that this court should affirm the findings of the court below including the finding that the court the fifteen eighty three gave the only basis for some form of supplemental jurisdiction where the court of international trade i've easily we don't agree with that i think clearly fifteen eighty three does set for say that thirteen sixty seven is not read in harmony with fifteen eighty five particularly in this kind of circumstance so i just want to remind the court that in that the west case that was before this court in one thousand nine hundred ninety five you had a very similar circumstance where this court was asked to review a merit based ruling by the court of international trade it affirmed the dismissal of claims that had been brought in the court of international trade and while i have to candidly say this court did not express glee find that thirteen sixty seven apply in affirming the dismissal there is implicit exactly what we're asking you to do here if there is the same problem of you have to address those jurisdiction exists before you can get to the merits of the clane and similarly in the west this court imply italy at least recognise that there was at least jurisdiction to review the the claim and i would submit the same is true here at the court of international trade had jurisdiction to address the standing question and it's finding that the plaintiffs had no third party beneficiary status and and thirty six to thirty cases of their own the merits of the third party beneficiary argument that's not ours that's theirs we didn't follow our case until after they file their us they believe we're third party going to history so much so they  they want to avoid their obligations i don't understand why the lower court did not address that issue and i urge you to address that issue because i don't because you do have jurisdiction and if you don't have it under three hundred sixty seven i urge you to look rater you asked about some other science in the record about the failures or other explanations of what happened to these duties quoting the g a o report and the treasury department treasury says they're one reason that customs says not always been able to timely liquidate entries subject the orders that quote commerce did not always receive timely instructions from customs where c b p did not liquidate in accordance with timely instructions or the instructions were not clearly understood  failures to act properly under their own guidelines we believe our complaint establishes the right to at least inquire further into their failures to act at the exercise of ministerial duties later to say we didn't had no intention to underwrite policy for the benefit of the point is your honor the point is if you look at your precedent here and the president of the montana case a judge and jury was on it other cases where you are looking at the merits of the third party law but you say as you look at the context you look at who is going to be a benefit whether it's a name for the reason i did that mr rosenthal is so they wouldn't worry if you got the last word we pay attention to our other cases we have em on our computers i read what you were saying and read further thank you mr thank you