post security before their imported merchandise may be released to ensure that the public office is protected against the possibility the duties would not be paid also since the founding of the nation congress has provide special charge to be imposed against surety if the government is forced to sue to collect on the final season of the a real world historical list practices do i understand right that this is in fact the first time you've ever usually the in the surety asks where we want to check sent so these cases are usually settled in recent years sure these have started contesting our demand letters and so there is a lot of litigation now in pending at the court of international trade have there been over time i don't see in the decades since antidumping and countervailing duty law was enacted has there been a regular stream and some domestic industries would say the reason it hasn't happened before is because the government has not been vigilant enough but certainly this court has approved section five eighty to apply to surety when they do not pay on a bond so the sure these attempts in its case to describe it as a relic of history is inconsistent with the facts with the law in this circuit similarly this court has approved equitable interest in a wide variety of circumstances involving surety s and so the only question is whether section five eighty an equitable interest can be awarded together in that circumstance and we believe that it can be because of the two types of charges serve different purposes section five eighty provides an incentive to share these not to do this series did in this case they hang back and wait for a decade keeping the money rather than paying it and then following the protests procedure in which case the government would have the money but they chose the route of keeping the money and litigating this case for a very long time both administratively and now and at the trial florida now here and having chosen that route other than the fundamental purpose of charging section five a the interest provides an incentive to surety not to why delay paying when i get some would also provide compensation for the time given in the same way that the internal revenue code imposes  charge that is in the form of interest plus interest if you under with full on your taxes and it's also under the debt collection that they're ours there's interest and then there's a special penalty if you refuse to pay on a debt back to what's i guess in fact some threshold question and in fact the basis on which the c h p decided this which is that you did not develop this argument in a timely fashion that there was a vocation in the complaint maybe there was some passing reference i forget whether in your summary judgment papers but any event no pending no developed argument for what i think you confirmed is a quite new  vocation of section five eighty how could it be an abuse of discretion for the c i t to have said that you simply forfeited the argument by not developing it until your rule for united motion i think that's one of the easier issues for the court and i think and court thought that you hadn't really made that clear so it was way we do that especially cited this court had said that charities are liable for five eighty interest and great american reserves the right to breach that that it would be a sensible say for a defendant to say in response of the cautious questions remove if the government eventual comes back and actually makes a developed argument for something we reserve the right to address it that's not a concession that the government has that the opposite side has actually done they didn't say the government has waved to the government it's too late they should be briefed now now they're playing a game of gotcha they reserve the right to address it later just as the government did and now they're saying that it's too late but there are cases we cited in our brief where we did the government say in reserve the right to argue it later that we asked for the interest now we did not say reserve the right to argue later we asked for it in the in our motion and it was in the and then the government view it was making a sufficient argument that the at the initial stages yes because it was in our complaint it was an answer we provided a decision to the court that was issued while the summary judgment proceeding was going on u s p can act in which the court awarded section five eighty interest and we wanted the court to be aware of it so it was clear that that was an issue in the case and it could have been addressed earlier but most usually in trial courts especially in the court of international trade issues of interest are decided later princes cruise and she's decided by th ambiguous on whether it applied to anti doping duties or not and if that is true then customs interpretation is entitled to deference because thirty years ago has to build a formal rule making provision proceeding entertain comment and issued a federal register notice explaining that section five eighty interest was an exaction that should be enclosed in addition to regular interest so that has been the agency's interpretation for thirty years and we haven't enforced it we haven't brought as many enforcement actions we haven't had to because usually surety say until recently concluded i don't remember what was the context of the federal register pronouncement there was attached to a rule was attached to some legally effective action by cummings it was a rule making proceeding and the results are published in the federal register but there was a question about what the five eighty means and so  customs held a proceeding invitees comments responded to the comment and the conclusion that it stood for thirty years and challenge is that it is a an exemption that applies in addition to interest because it provides an incentive to surety not to do w the surety in here and to wait until the government sues and then if the government wins in their view they have the money all this time so the government has lost two million dollars of the six million dollars just liabilit you know what the interest rate would be if if were if we weren't applying five eighty the equitable interest rates whatever their interest rate the interest rate would be lower but it compounds so the ultimate relief equitable pre judgment interest even in a circumstance where we recognize that there is a statute that by its terms provides for interest it seems to me the answer in this case is pretty straightforward district judge did not abuse discretion are saying now that's t in cases in which a plate that is asking for a pre judgment interest and and actually does something before that judgment for the plaintiffs to offer a  about the equitable considerations that go into the determination as to whether it is permissible or or required even again this is of the ball should be in the just recourse to discretion right because if you go to austin the active supreme court's decision on on the issue  more question about five eight do you have anything anything at length anything about why this has this assertion a five eighty has arrived on the scene so recently even in the and let me just tell you what what i'm focusing on a fight like you to address it and i guess it goes to your two principal somewhat related points about about the notice deficiency in my general understanding is that in lots of areas of law including insurance law failures to give the required notice don't automatically invalidate up locations that there is in fact a prejudice kori particular when insureds don't give the notice that insurance policies require i don't know if it's universal but very widespread there's i guess it's called a notice prejudice or why is that not the right back around a lot to bring  contractual arrangement and a contractual interest requirement that says that notice is a matter of maybe some importance between the parties maybe not congress passes a statute commands an agency of the federal government and all instances do something and to do good with a very clear evidence that what it intended was to ensure a certain amount of stability and ability of that party to be in a better to decisions to protect itself and would otherwise be and seems to me to elevate an issue substantial ordinary surance situation and in that context and to me in all unreasonable for the court to say no we're going to put the burden on the other side we're going to say look congress had a public policy that will be utterly undermined if what we say is that there is no remedy under these circumstances notwithstanding clear commanded do this absolutely explicit and strong policy public policy behind it and the customer can uniformly disregard it and and and no consequences will probably it but if you take your argument there have been desexed in those one sort of was a notice given on a particular time or but there's a lot of evidence that the party actually did in fact know about what was going on and i think it's in that context it's worth at least noting here that these that not there was not one shred of evidence the great american ever knew about these bonds and this was a rogue agent operating through another subagents issued all these gone to see if if one creditor take seriously the word shred what  to see that to me goes to the core question here is whether or not he should be able to decide this was a matter of law as opposed to evidence on summary judgment as opposed to having some kind of a trial because the problem here is we don't know who knew why at all and what what what what the one can you say it's reasonable to respond to something when you're when you have a row because of operating without any without without any notice coming back and to hold the company to a very substantial i believe under those one element yes there has to be manifestation of the parent authority or certain actions that manifest that but there also has to be that provided a reasonable basis for the other side to act in the way that it did and there no evidence what customs thought about any of this or that customs ever had any idea about any of what was going on in these circumstances so it just seems to me that the trial judge when it got especially when it got to the bonds over authority issue he just simply slid right by us and  said well i think there's another responsibility on the surety that they should have done more it's all on good but the reality is that we don't know enough about the facts in this case we know that there was no actual authority under his extent to which the other side your client absorb some damage there our last meeting the congressional history that i think both sides cite talk about the reason for the notice this will avoid minimizing loss in the future and in the if if you if you want to go further than that and we certainly have asserted that there is prejudice not then i would have thought because the problem is five six seven eight years later i can prove to you exactly what i would have been able to prove because the employers are gone  the company in china is gone none of the data are available and what i can tell you is that i would have had an opportunity would have to go and pick them to go to commerce and just say wait a sec i don't think the number should be nearly this and we lost legitimacy to requiring a threshold showing taking account of it's hard to look back as to what your company's normal practice is and somewhat similar situations were before what it of circularity to it but unless i think that is a reasonable way to go about it in terms of sort of the modified versus front that we don't necessarily want to lose if that under the circumstances the most sensible way to respond to the problem constructed and actual notice of the suspension of liquidation it has constructive notice because the commerce department published a notice in the federal register which express lee direct has been to suspend liquidation or notice that it american that great american might have some contractual cause of action against its agents that the company that was selling its own time if that company exceeded its authority but if in fact great american in fact the that was selling great americans on and great american if that's something that was selling the bond was exceeding its authority or doing time in the great american didn't like that's like the great american is a very sophisticated company obviously since you can hire such learned counsel it see if they take it whether it's over the limit or not the customer service can police sure of these and the consequence is sure these are allowed to avoid their obligations on the line the customs the consequence will be that more cash deposits will be required or that customs will start scrutinizing bonds much more carefully which will slow the trade and impose greater burdens on importers and i'm sure these all we asking is that surety held to their word of their behinds here the bonds were provided to the customs service great american never came to customs until it was sued it never came to cousins and said whoops we just discovered we've been giving you bond the third party knows the aging of the agent is not authorized to engage in and a third party hold the principle responsible for those trends but that's what we're trying to do with the third party beneficiary then at the time it was made under the safe it under basic contract law you can't do that it hadn't already if have authority to sell the bond to the importer the importer is the one who gave us the bond so the bond that from our perspective if there is some action between the importer the sales agent and great american that's for them to work out and they are in a separate litigation but that doesn't mean that the third party beneficiary is left holding the bag i also sus that the notice point in addition to the constructive notice of the commerce department federal register notice the funds themselves at issue here have a code for which is the sure these codes for subject anti dumping duty order so the surety knew when issues the blinds that these entries for subject to an anti dumping duty order and if they read this is that i'm sorry that the phrase when the issue was the surveyor there at that time it said it's a code or same number for it so it is a tough i just want to make sure do you actually know the back code was on there when the surety issued the bond is not added later it's in the same tight place as everything else it's typed on to the bond and there's no allegation that customs added that code to their bond to see who does the typing that that number is on the bond is not added by customs and there's no allegation that it was also the entry papers that the importers have to provide with the bond as a code three which is a customs code that means subject  order and under the law those entries are all suspended each year so there can be an annual review or a determination not to review so the great american had two types of notice apart from the simple have case that customs admitted leak failed the sense of the one surety that it issued a single transaction five now how they could show harm from not getting noticed by a single transaction and is  mandatory the statute contains no consequences but interestingly before nine hundred ninety three failure to send a notice to suspension did result in dean's liquidation and congress change that in one nine hundred ninety three because you know th you make that argument in your brief and i went up to the staff to try to compare them and i'm just missing i mean it seems to me that i looking at the preview the nine hundred ninety three statute in the amendments and what the change where i'm failing to see how only thing that was added but i may have to look further to give you a further explanation than what in our brief but i think it's it's definitely the case that before nine hundred ninety three failure to issue a notice merchandise during the period of suspension the liquidation where do the goods go are they here in the country and the merchants it is are in a warehouse and they are released from the warehouse upon a posting factual questions invested in trying to decide what to do short of that and that's it that's that's i think the reason she's forced to say no consequence because if you say there are some consequences we did present some evidence about some opportunities that might have been available to other question we should read the bible to address is whether that was actually evidence or whether that was simply argument that was being made by the lawyers perhaps even yourself i don't know larry as you are  this you know from my perspective they have they have a much higher burden that we have not burden is to demonstrate what we would have proved my point is in just the same way as you had to deal with spoliation issues and what would you have done under those circumstances is virtually impossible to go back and prove what you would have done the best you can do is try to offer up what you could have done and ways to protect and giving it the benefit of the doubt makes sense because that was congress intent and enacting the statute which was to protect the s it to be treated under those circumstances it seems to me back to a reasonable solution under this problem and it's not one that goes candidly to the all or nothing what it says is that in certain circumstances it will be deemed that way and that runs the statue of limitations