possible jurisdiction fifteen eighty one a that this case is unlike any other case cited by the government or the court holo for the proposition that except a request from cellar a disposition must be made in order is not asking the court to interfere with the process or involve itself in the process of the decision making process process that's where it is merely asking that the courts and seek the only remedy of the reinforce the only remedy available to it couple of occasions that what you want is a decision idea of a written explanation or reasoned explanation for a decision if there is to be a denial of the protests and as opposed to what you would get  under the expedited system in all likelihood or in these possibly which is a deemed tonight what is it about the denial that you regarded as being an satisfactory and  before you answer that i need to say that in many areas of an industry of law in which we have jurisdiction frequently see deemed enough in contract the contract claims are deemed denied if the contracting officer doesn't act within x period of time and i believe it happens over and over again and nobody says anything up just well arias did not but you seem to attach substantial significance the difference between a written denial decision and under the provisions for the course for a celebrated disposition that right goes away because the ones who celebrated dispositions requested customs have the option of not doing anything right that andy d important or broker have to subject itself to a cost of discovery and the cost of dealing with the court action or when it should be in what is hopefully not a major trade issue when that's the job of customs under fifteen work out a deal where we might be able to withdraw our case because we have some sense that it's going to come to my client given the history of this case is not convinced from the conduct of cousins it is indeed a reasonable assumption they have closer minist proceedings we argued in our reply brief they have cited no authority then they have the opportunity to open a closed administrative proceeding and we have never seen the so called draft we have no idea what it does or what it does and or webb says and indeed we are looking at the us government's position that indeed under the regulations they cannot proceed given the facts of the cases filed to protect our rights when they wouldn't for most of what they are if you needed a new project with presumably them and my client is not considered a reasonable assumption that we will see after two years of waiting and then inquiring going back and forth getting no response there is no factual basis for us to presume reversing reasonably we'll ever see that decision unless and until this court the question or that the decision be made under fifteen fifteen and on to the other thing that i'm concerned about my clients concerned about if we have to proceed under an accelerated disposition request this is the consequence they simply did not decide the case then they would not tell us the status of our programs to know whether it was necessary to protect our potential of interest we did not know whether in order for us to be able to get the name of the remedy we see however if we request that customs no longer has to rule on our protests it can do nothing and at that point then we have for the court argued that the government marketed that that proceeding in a fifteen eighty one i was not appropriate because the plaintiff could have sought another procedural avenue to obtain its revenue or our encourage a plaintiff to use one procedural i mean option over another soley for the purposes of forcing him to achieve another jurisdiction under under fifteen eighty one and indeed in our case position is really consistent with the congressional mandate what congress said is in fifteen fifteen a customs has two years and fifteen fifteen b there's an alternative means of proceeding if the important wish is your position seems to be that the two years is an enforceable if it is something that customs has to pay any attention to at all and that instead the only way to get an expedited just position is to go through the some that the is not an alternative that's the only remedy for someone that wants to get a disposition that occurs at some point before customs feels it's ready to move even if customs goes for five years why is that consistent with what congress specifically broke in fifteen fifteen and certainly ar years you're saying we can i mean your position seems to be you could take ten years is that correct well no your honor let me explain the the framework of the statute which was never let me make sure i understand you but if we were here ten years after the fact would you be making the same art but certainly your honor of it so customs can take ten years so your answer is yes to my question right but that doesn't respond seems to me to the basic problem that comes congress has said customs has two years and customs seems to variegated to itself the right to take as much time percent which is that an unfair fifteen fifteen a it's followed and that if it decides protests within this two year period entirely except when it's not solved in certain circumstances the agency is unable to complete for you in two years and what circumstances when there's pending litigation which we have in this instance we're not asking jensen to forego its right to a substantive review the proper course of action would be for jensen to remove the improper court actually there's two of them that are currently pending so if there were no court action is no court action has been file previously you still would say find your stand your brief correctly that there is no authority for the courts to come in and say you're beyond your to y mandamus or anything else correct remedy for a violation of the two years and that remedy should be allowances of protest this it seems to me is a rather different situation where here no one's asking for allowance of protests there is merely a request for a a decision so you could it isn't simply a you either get allowances of protest or custom says no obligations at all there could be a middle ground which is that the court has the right and duty to say to customs you have to decide this into your life and that the right way to dispose of this cage while you're at it wouldn't be a middle ground because if a river imposed upon the government to complete a review in a certain period of time it would be transforming fifteen simply require a decision and then i mean lose that the whole line of tatum's at the court and touch relied on from the supreme court pierce against rock and so forth were cases in which the supreme court said congress does not comes imposes time limits but it hasn't picked a remedy and in that setting we're not going to impose a brand that's very different fundamentally different seems to me from saying congress has said there's a time line and the courts may have the right and obligation to enforce that time and that by saying mandamus the agency to a particular remedy but simply saying mandates why it's not right what putting jurisdiction first sight a moment and if we would look at the application for writ of mandamus the first element for the application would be that there is a nondiscretionary mandatory obligation on th of the government to act and that sole issue was directly addressed by hitachi so for the florida court to impose a writ upon the government it would have to be transforming fifteen fifteen a from a directory statute into a mandatory schedule but i think the important thing to keep in mind is that the agency take these obligations and are depicted in a very seriously in fact in two thousand and seven the year that these entries came in ninety one point two percent of all protests that were filed were decided within two years so it's a very small number that's not being decided within two and of of those that are decided within two years the large majority are decided because of this practice or this policy of not deciding administrative issues when they're pending before the court improper court actually spoke to the action in the eye actually withdrawn the agency would resume its deliberations and provide jenson with the decision and in fact the record demonstrates that sixty seven sixty eight that the agency had a draft decision completed and that it was under the review at the time that the improper a actually was commenced is there any sense of how long it would take for such a decision to issue if in fact the actions were dismissed certainly on or at the trial court would do it in a reasonable amount of time and i think at that moment if i may remember it certainly correct it was something around that the time span of ninety days i mean there's that there's certain administrative things that do need to be accomplished because of the big event of th anything that could be within ninety days at the time of the trial court that was my understanding i don't have knowledge as to right now as to what the agency's timeframe was but i do know that a draft of vision is under review and if the improper court act that congress has provided a framework by which protest and can have their claims reviewed and it's fifteen fifteen and as we've discussed it directs the agency to do it within two years and then the large majority of time the agency doesn't do it within two years but if the protest it becomes do which is review these these these claims under fifteen fifteen a if jason however does not want to wait for that substantive review that has a remedy available to it which be fired quest breaks or a disposition and if all those an extent meaning that we agree that your standard protest aren't subject one seventy seven point seven right but the reason why that regulation prohibits the agency in this circumstance is that one seventy seven encompasses a farce the applications for further review and that comes in under one seventy seven point one and one seventy seven point one two as well as one seventy four point two five and those only provision it defines what a ruling is and under those definitions in compas is an application for furthe it's ordered to headquarters to have this application for further review the protest to send it over for under the application because approach the court act at the direction of headquarters so here well one seventy seven point seven wouldn't technically prohibit the then boarded to headquarters for review but the reason why we can't act in this instance because under this regulation scheme is because there's this pending a f r but generally the policy decisions by which the agency does not  protests or applications for further review when it's pending before the before the courts is administrative officials see if the court to come down with a legal decision contrary to how the agency views that legal issue the litigants in the agency would have to undergo further work to undo the decision that they made to the court disagrees with this so the agency has developed its administrative policy both for process and provocation for further review that the if it's matters move in litigation it stops all action because it litigating seeks administrative determination to assess the viability of its claims then there would be a difference but the statute allows ability get to obtain that and that is going under fifteen fifteen and allowing the agency to conduct i points i want to address something so i don't run out of time we also have the usual of the failure of state a claim on which relief can be based the arguments are are fairly fully set forth in the briefs below and reiterated in briefs here i would ask this court that if they find or fiction and find that we have not failed state a claim upon which really leaves can be based that essentially there is no further argument to be made before the court below and so if a court here finds that there is a basis for a plan relieve that any remain and go to the court with an order that the lid be issued consistent with its decision the i would just point out a couple quick things if you look carefully at forever and we've discussed this in detail and i reply brief all the approaches service we thought but we were never confirmed it was never confirmed to us all the protests were consolidated under a lead protest that was  so they have to rule on what basis can i assume that they're going to proceed on an offer to avoid litigation or losing the case force if a case where does this and the government attorney in the court of international administrative review and a decision we have not obtained the benefits of that statutory or right given to my client by congress and you're asking me to give up my pursuit of that statutory right before but you have my client have to look at the history of this case we have spent time and money we waited two years patiently for the statutory decision it didn't come we spent months inquiring about the nothing came when it didn't come we clapped for clarification on whether all of our three hundred eighty protests were included in the consolidated decision they wouldn't tell us we came up against  which we had to file a case protectively in the event that there was some denial of which we didn't receive notice we got no response we had to file the case we filed the case they come with a motion a case as opposed to having to proceed with our case so so you know i mean no disrespect to customer service on the customs and border protection i mean no disrespect to counsel but my client simply ha basis to assume that this generous gracious officer has vision when the judge in a draft decision the judge we've heard them to show us what we had never seen is going to give us a room we are not going to waive our rights in the hopes