this action reflects what happens when in the tens of thousands of entries that customs and commerce handle one of those two agency makes a mistake and the import of fails to pursue their obligations to correct that mistake trial court shoehorned don't want to ask to try to fix that mistake and didn't doing so it up ended years of judicial precedents and clear statutory authority what's critical is they ignored that black and white statute and they ignored to braff the precedents of this court i'm point with regard to how can you make a decision about something that doesn't exist by operational law that you can make a decision the decision may be wrong and that's what some at this court to president presidents tells us that it reflects a decision it may be an incorrect one and there's a critical difference between those two because decisions must be protested and in this case we're willing to use firearms there was a posting but that posting was in response to direct communication from commerce correct yes and about an actual liquidation irrelevant so the trial court made findings on something that wasn't before it that we never had a chance to argue and our priest before this court clearly illustrates why the decision by customs may or may not have been whether customs made a decision that's what yes which is not unusual that's a typical decision by the agency when it when they produce a typical posting but there's a difference between saying that and that in another itself constitutes the entirety of the decision that is the posting nothing on every day but normally after a democratisation actually exists we hope yes but that's so this was all that you're saying they should have been on notice to move for that's actually not true at the same time even here it is worse than that they chose to ignore notices they thought because they said they couldn't read at it what was the notice just a copy of this it was you know it's a print out and i'm sorry i don't i realized subsequently that it didn't make it into the administrative record but it certainly appeared with the judge and what made it into the administrative record is if you look at  notice to itself least something was going on and they chose to ignore that what incentive is there to search for postings way and by operation of law to be suspended you can't sit on your rights you have to still keep looking it's a how do you justify the distinction between a court injunction which if there is a court injunction in place you say congress doesn't have  authority to act but if congress hasn't gotten authority to act under operation of law as dictated by congress how can how can there be a distinction between the distinction was made a trial court level but let's buy that that's the law that's perfectly fine court injunctions are a different branch of government telling the admit executives agency you have issues there where the agency with disregarding how of our branch of government would have constitutional problems in addition in with regard to suspensions parties know they're probably there are goods are still subject to the administrative procedures they are knowing that they know they need to monitor the federal register as judg when it comes to a court case the party can rest assured at this point it's now within the parameters of the court a party doesn't have to monitor the ministry of record or i'm sorry the federal register anymore because the court has its hands on it  a real critical difference and it's not unreasonable to require a party to monitor the federal register when it's at the administrative level and this court has held that for years this dates a long time it's not this is not the first case it's really just liquidation and as the lower court pointed out a d m liquidation requires certain steps by operation of law before it can access that's not true with respect or honor the statute says any decisions by customs rigged as to it day after a suspension when everybody knows it by administrative suspension nothing supposed to happen and no liquidation can occur and none of the steps that occur that created the liquidation if if there is a dispute customs just post that's the end of the inquiry exactly and just farms told us that and there really would be no difference between why a company would have to monitor the federal register for notices of deem liquidation but no liquidations they have to monitor for those even though the entries suspend it would create a very unusual and system that would make no  on march twenty third one nine hundred ninety eight costumes told she'd make commerce told customs that the suspension of liquidation was removed when customs made a determination in two thousand and one in liquidation they did so at that time without there being with all the statutory quite euro been met your had been a notice from commerce that the suspension had been lifted they had published a notice indicating that the six months had a lab so unlike the current case in semiconscious when customs acted customs had every right to act consistent with the determination that had been made by commerce so here we have a situation where i'm sorry i turn this off you'll never forget them at this so here in our case there is no question at the time decision was made by customs to create it in liquidation and it will that none of the statutory criteria were met the suspension of liquidation continued to remain in place and as judge eaton found under these unique facts which do not exist in juice farms which was an actual liquidation case you not exist intimidation and that every time they had most of them and you could see why they might make a mistake and interpret ing it but if we're talking about operation of law there was a problem with that respectfully at the time if we focus on the time when customs made their decision acted at that moment in time all of the statutory criteria existed they had a right to act based upon the facts that existed on the ground at that time not so in this case the suspension of liquidation had been lifted they do we gave didn't occur until far down the line i would respect to submit the critical time period to valuate the actions of customs and whether there's a protest will that is when customs and at the time the customs act and the forward to demilich predation and it was only later in subsequent litigation when there was a challenge that was made that it was determined that the notice from commerce to customs was improper but at that time when customs acted thousand and one cannot constitute a deemed litigation which occurs solely by operation of law we need not reach this question because we agree with the court of international trade that customs decision to acknowledge that liquidation deemed or otherwise  that that liquidation had occurred falls within the purview of section fifteen fourteen any and is thus finally conclusive in other words they said we don't even have to reach this question of whether to deem liquidation was was valid yes or occurred by you rightly or wrongly that's what they saw in this court and so much reserved on that question i agree that they didn't address it with they did say the address the second argument that it made which was that there has not been made a quote decision close quote under the statute which to protest that in that case they looked at the factual record and they determined that and then they talked about this distinction between whether there is this is merely a ministerial act whether in fact there was an affirmative action taken by customs inseminates to liquidity and they went through the factual record and here's what they said quote in march this is on page thirteen fourteen did customs make a decision regarding liquidation within the meaning of nineteen u s she fifteen forty you know they go through the wreckage and talk about how the customs headquarters reviewed this complicated factual record how customs made a element is did costumes make a decision customs made no decision then it doesn't trigger fifteenth would connect on with this record they made a decision on the record we have before judge eaton undisputed on the record in this case there was no case judge eaton found to the contrary there was no decision customs made no determinations as he found based on the undisputed record this was simply a mistake no one determined that they were going to def make it's only decisions of customs there are protest that's the rule in the discordant senate that's why they went through that extensive analysis and talked about the distinction between miscarry versus actual decision making when they went through the record  t here customs in fact made an actual conscious decision in our case it is undisputed that there was no decision judge eaton found that this was nothing more than someone having the fact that this action was an illegal act and just like in l g electronics where the court found that in injunction you cannot act in violation of injunction an act of congress is no different  collie equal branch of government a court order from a judicial branch in effect an order from the legislative branch stating that you cannot have a dealing with liquid gate nation we prohibit it unless these conditions are satisfied i don't believe there's a principle distinction between those two and if the principle is that an injunction precludes you from going forward and engaging in a liquidation again with redemption it should be no different with an act of congress so in my view there's no principled distinction between the two and i think that alone i think judging greed below that to the extent that these acts were engaged in in violation of the statutory mandate which which is in effect to protect importers not to hurt importers on that statutory scheme should  revoke ok then and you are the actually ok if there's any other questions the panel have i would be happy to address them thank you very much arguing in hindsight maybe the act of posting was illegal but at the time somehow it was legal and therefore it's different first of all you can't have a system where in hindsight we decide whether customs or commerce acted correctly it's got to be one system that's judged at the time that it occurs you can have subsequently deciding in the past otherwise you have an important position of not knowing whether they're in it's them it's case or they're in one of our cases in addition in this case it's not so clear the facts are all that different and it's and it doesn't sound that you had a posted notice that was premature on the words that suspension may or may not have been lifted and we don't  a finding of fact that there was no decision here in this was purely a ministerial act that's what i was going to get to next that was never tested there's not one iota of evidence about this computer processing entry error which is coming from all somewhat for making the argument he absolutely did that and it's what he did this completely payslips because he made an assumption that it's a mistake and we're going to put aside for the issue that a mistake can still be a decision that doesn't mean don't know why custom made this error and it oral argument counsel repeatedly told the judge this if you go through the transcript it is repeated we don't know if i'd have been and there are it might have been a deliberate a intentional act because they might have found that the spelling was different or the fact that these the entry summaries had the wrong arm anti dumping duty order might have led customs to make the affirmative decision that yes these things it dealt with both kinds and interestingly the the part of l g electronics which is which everybody relies on deals with an administrative suspension the court in that case said because there was no decision spitting out some computer thing so if the court did make some kind of factual finding it was an issue that was never litigated upon which it had no actual facts on this computer error business and it's a complete disregard of actually all of the evidence in that