good morning and may have the court shall timely filed a claim for drawback of customs duties within the three year period of limitations under nineteen u s c thirteen thirteen are while that claim itself to not t all of these interactions with customs took place during the congressionally extended so that your limitations on drawback claims the quantum court nine hundred ninety nine window as we refer to it in the briefs in fact the eighty we would not be here today so the question the court has a result is whether shell had to refile that for the court's decisions and warrant an extra this this six month period is pretty claim in order to trigger this extended limitations period that's the clearest i can put it but thirteen thirteen are itself the underlying statue imitation itself also requires a claim to be filed and in warren the court said that this court key and customs to go back through and determine what it was within that six with a six month window where their recent case and your honor i don't think that there's a really a burden argument here we're not asking if we're asking customers to do anything we're not asking them to look very far this case was docketed in the c i t i mean it it's not a situation in which there was a claim filed there was failure to prosecute the there's a claim that has to be file then the claim is the night in certain circumstances then there's a protest that has to be filed that protest might be the night then the cases dock in the c i t what warren stands for is you didn't put the language in the claim you didn't claim h m t e t in your actual claim but customs had knowledge of it within the period of limitations this what makes it different than extra in extra customs did not have knowledge of h m t n e t with  within that period of time customs had all of the information it needed it had it in the form of a claim that didn't have a champion easy on it but a protest that that in that sense it's the same as war and so that's that's our position is that is long as within the extended period of limitations customs has the information then the him to need to should be allowed so the six months doesn't really matter what the six month doesn't matter your honor because at the end of that six month period if customs didn't have that information that's warrant in this situation warrant customs sitting looking at arista sure that's expert in the situation of extra whether the language of the of the statute says six months and then it looks backwards as to certain cases right that's correct room ok then it's not leaving it open for everything that existed prior to that is  t i guess i thought the way i view it is it says you have to do something within six months but thirteen thirteen are also so you have to do something within six months that something is filing a claim in warrant the claim was not filed within three years only allows a three year period for claims filed within that within that period it's the same argument you know is a claim anough to trigger that period of limitations in war and they said that you have to have just just after that customs knew before that period elapsed that we were claiming h m t n e t in extra that's exactly the opposite so you in the situation metric there was no claim no piece of paper so in the on page thirteen seventy four well i guess but let me start a little bit before that on page thirteen seventy the court nektar characterizes again this is in the context of a whole for the old for her limitations which is not really at issue here and nine but so they characterize the nitrate act as follows they say that section twenty four twenty eight of the nine one trade act applied the amendments retroactively and expressly suspended the three year limit imposed by one thousand u s c thirteen thirteen are creating a six month grace period in which otherwise timely claims could be filed or refile to obtain relief under the am statute ok then if you move forward in your case you didn't claim within six months we did not refile had not you did well the sentence creating a six month grace period in which otherwise untimely plane could be and it says in that's in that circumstance that mostly held that under such circumstances those circumstances meaning the nine hundred ninety nine extension the filing of a new claim and extend limitations period was unnecessary since customs are you had notice of the cla in war and again the claim didn't have a gym to an e t s unless you're going to illinois in most the court's going to look at that and say well basically what warren did is deemed the protest to be a claim the protest there didn't have anything in it and our protest and everything in it but all of us prior to the expiration of the period of limitations in our case extended in war and original customs have that information in the form of approaches they didn't have to refile because as i said before there is a defined administrative process airplane if it is denied then protest if it gives the made them c i t so their claim is the same as our claim it doesn't say anything yes their protest was f would lose under if you found that the six month window something actually had to be re filed within that six month window and the fact that customs knew about it the fact it was extant and the fact that the that the period of limitations actually the window actually extended  lang just single piece sickly what they said was a protest operate as a claim unless you're going to say that their claim same as ours so let me get real quick to this to the second argument and the second argument is basically i think it's important understand the context of this we're all sitting here looking at it with that with twenty twenty hindsight the situation at the time if if shell or any other claimant had refile their claim it would have been instantly denied it wouldn't have given customs any more information saying we filed or filed for the first time in controversy over that it was highly controversial i mean and so for us to look back at that and say what customs you know you needed to go through this very formalistic step of refund the piece of paper even when you had an active case adopting case on the c i c seems to us to be problematic now in ector the way they result that the court this court results as they said well the regulations at the time required to have a correct calculation and so to the extent that h m t is a duty you should have put it least the number on the claim form the additional amount of agency on the line for in our circumstance those regulations were not in existence and everybody agrees with that the regulations that were the existence in one thousand nine hundred five did require a calculation but they specifically allowed for that calculation to be adjusted during the administrative process so to say that the regulations required to correct operation extra that's fine in our circumstance it was a different regulation issue in that in that circumstance and i think looking at how confusing this was an attack  and a claim of trying to derive how to protect their rights in a circumstance in which they're not getting any guidance from customs and not very much guidance from the courts and no got guidance from congress until eventually two thousand and four is putting a little bit too much on the cla good morning r c a pleased to court by such a drug that claims must be filed within three years or be considered abandoned and there's no dispute the shell did not make an explicit claim for her maintenance x or environmental tax within the three years of export the onus on customs to scour every potential claim and revive and otherwise steal claims what it did was provide a grace period for importers to to put to put those claims back before customs before the court so well congress certainly knows how to to craft that when it when it wants to do retroactive that it can craft the language in a way to say claims that are already pending and filed within six months that's not the congress i congress said importers you have the opportunity to bring these claims act to customs within the next six months or bring them for the first time within six months and customs will consider them you know i think we're focusing a lot on the one hundred ninety one trade i think it may be even more important to go back to the point that nowhere in the first three years following exports it shall do bonus to shell to revise those claims because they were already in timely that act at that time and george warren would go back to that with the language of george warren was the government at that time was contending that raising a claim for agency and e t s a time of protest was insufficient for jurisdictional purposes to give the court of international trade fifteen eighty one a jurisdiction that's not the case that we're making here we're not disputing that there's an issue so that if if at the time of protest the importer said i you should have given me agency an e t f and this is how much you should give us back customs would have treated that as a timely claim if it was filed  within three years and in fact in this case customer service has settled with or stipulated to judgement that be in trees that were filed at the time of protest but were within the three years so that's just the purchase is not the same thing  during this period and they had something pending exact same thing during that period why doesn't it just get the benefit of the ninety nine reopened window notice for the purposes of having a protest and a decision on a protest such a jurisdiction would lie within a quarter international trade system eighty one a jurisdiction but notice is a separate but perhaps related concept with the issue of time with the problem shell has still can't get around any action taken within three years of export or any action it took within that six month period that was a timely that so how can you say they did nothing during the six month window to put customers on notice they had a pending litigation that said exactly that can answer is to go back to the language of the nine hundred ninety nine trade act which required that something that something be filed within six months not something be pending within six and a congress that we had almost our language in warren which relies on what custom had notice of and didn't have notice of your saying that language in warren is inconsistent with the statute the statute required filed and suggesting that the language in war in relates to the issue of jurisdiction not to the issue of the timeliness of the claim i think that that language is not being disputed for purposes of jurisdiction i think that language just doesn't relate to the issue that's presented here which is did shell ma for filing a drawback plane of the time didn't provide for any information about e t and to draw back and the regulations and provide any means for filing a protective claim how should show the time we drawback the privileges of excel are a drawback which under the regulation of the time didn't require it to make a calculation of the drawback it was seeking but if the court looks at page one forty seven of the joint appendix a column nineteen there's a column for duty paid and what shall did was say i paid this amount and duty on claiming you know less one percent and then the next claim so show me that some certain claim for draw back which did not include c but let's say the shell was uncomfortable with putting those two taxes and fees on the form for whatever reason it could have this included a second sheet of paper saying also please let us please let it be known that we are seeking agency uneasy in these amounts that would have preserved their claim there certainly was a lot of talk in the importing community about whether these taxes and fees were subject to  minds of lawyers were papering the files with all kinds of documents that were being created in relation to the key to everything they potentially they might be able to get a preserve as only was it was a live issue that was that was being very vigorously litigated of both the fourth quarter national trade and before customs and so for that reason i think that the idea that some help with in futile filed in the litigation is over then certainly there's you know should we file a customs is not a notice you continue to dispute this window is open but there pending their argument is what difference would it have made if we had refile it would have made their eligible to claim the trillium derivative drawback and so calm congress sort of cleared that up and said i know there's been a lot of confusion about this issue so here's a six month window to refile the honor there were many cases state spending extra and following the decision in extra there was a factual distinction about whether the claims were filed prior to the one nine hundred ninety nine hundred eight regulation whether that might somehow make a difference and so this was selected as a test case or for that issue so there are proximately twenty cases alone that are that are states that the issue because i was going to ask you about i mean is there any relevance in the claim and there was no requirement for customs to make the claim for shell or to give them more money than what they had asked for in particular with respect to shell since it had was using the accelerator drawback privilege it was that regulation required to make a calculation of what it was seeking and that calculation did not include did not include that but even aside from that complete calculation requirement six there's still the general problem that the shell has is that extra said you have to do something within three years to protect your claim to preserve your claim and certainly if you didn't include that amount in there in your draw back entry that makes it clear that you didn't do anything to protect your claim but your shell again can't point to anything but if it was in the streets three years that preserved its claim put it on customs notice within those three years that it that was seeking draw back and i think ultimately this court rejected the idea of an implicit claim i think that that same idea applies even in the absence of the one thousand nine hundred eight regulations groupies reasons we respect require the applicant to correctly calculate the amount of drawback to the one hundred ninety five regulation required that the claim include a computation of the amount due but then it says after liquidation the regional commissioner shall certify payment of any amount statute that you can't rely on the idea that well we actually always meant h m t in e g if we saw that it would be included in then it wasn't i mean you know i think that got your answer reject you know you got your answer for the amount you were going to get back to the draw back prior to the three years for some of the protests i think that's right we did get that amount back i think the question though was what did the claim form actually have to say and if you've got a situation where the relevant statue the regulations require or provide that h m t is a customs all those entries and then just because the form only required only allowed really few to provide duty them in the form of duty they put the duty on there but there's no indication that at that point in time and then there after there was an intent to claim a chimp theory to there's no last one is that i think this whole position as far as a claim vs a protest is newly found with respect to my colleagues i mean war in itself was argued because the department just took the position that there is a difference between a protest mclane that's a reason why warrant exists on the books so yes today they are taking the position that a protest is good enough for purposes of a claim but that certainly was not t