seeking a declaration that certain entries had been deemed liquidated by operation of law because a statutory window for liquidating had passed who agreed that if commerce had actually liquidated these entries or you brought the action that there would be no jurisdiction yes under this court's precedents that we think that that's right what's what's of course different about this case is it's undisputed that at the time for brought this action congress hadn't taken action to affirmative affirmatively liquidate any of the entries at issue did not do so until several months afterward with respect to summing entries and and several more than a year afterwards with respect to other entries so they've all been liquidated now custom subsequently took action to liquidate all of them that's right but at the time this case was filed it's undisputed that customs hadn't taken from an action with respect to any of the entries at issue and i think we have two points one that was it disregarded the time honored time of filing rule which is that jurisdiction is determined as of the time the suit is filed you can go back to chief justice marshall and eighteen twenty four they said it's quite clear that the liquidated that's right that there had been no liquidation there had been no the creation run or it wasn't until two or three months later with respect to three entries that customs reported delinquent isn't the statute provide a specific avenue to  challenge liquidation and if there's no liquidation here then how can we proceed on a fifty fifty and eighty one i well we can proceed under fifteen eighty one your honor which the provision that would allow us to challenge the liquidations customs had liquidated so fifteen eighty one i provides an alternative basis for jurisdiction and there is no matter in what is just wait until  protest period ended and or until they deny your protest and then proceed because by statute the entries have been deemed liquidated by operation of law ford was entitle to refinance and i think that that the reason why congress adopted this four fifteen zero for ebay after it provides it after one year the entries would be deemed liquidated by operation of law unless they're properly extended not customs has an argument that they were extended that goes to the merits of whether these entries were actually deemed liquidate a refund how where where and how would you sue for the well in this action your honor seeking a declaration that the entries have been deemed liquidated by operation of law and that's but that's a declaration what about actually suing for the liquidation by operational to a refund how could you get the refund i think my understand your honor is that in order to obtain the money when it liquidations by operation of law you have to obtain a judicial  ruling that has been liquidated by operational law my hope and expectation would be that customs would honor a declaration that mounts have been liquid on mechanism personally for i think you would probably ask for it to injunctive relief as well i think if you had a declaration and customs didn't any i think it's fairly well settled if you've got a declaration that the that's what the that's what the c h p held that you had other remedies available to you and by the law you had we had a certain structure by which you you could only protest liquidations or the lack of liquidation under that particular structure will that your honor at the time that this action was initiated the only remedy that ford had was to bring a suit under draw back case but it recognizes that there is jurisdiction or fifteen any one as the fuji suit case earlier in the court actually the law doesn't apply the same type of protest structure would do the drawback as it does for the liquidation but i didn't and i don't understand the scheme to provide a difference where there hasn't been an actual liquidation and i think the consequences of the government's position here is that even though congress has provided that after one year it's customs doesn't act liquidate deemed liquidated by operational law the importer has to stand back and wait for at least four years because the assumption is is that they get the one year statutory period and then they get the benefit of the  that would quite clearly defeat congress's intent in establishing a one year window under which customs was required to act and if they didn't act they were deemed limited out of the issues for they were there were extensions in this case or not well ultimately i think that's right it goes to the merits of whether or not they were being liquidated by operational law and on that i think this case is quite like that for decision a few years back from this court of a different work case since it's not cited in the briefs but if you're arguing that on the merits that time runs from the date of the extension they can only do one year from the date of the extension not one year from the a which the original one year period expire well that's that's one of our arguments judge i think think that that's correct for its position is it never received the notice that required required by nineteen c f r one fifty nine point twelve customs has taken the position that it did extend and there are some other responses as well your records are very good either how do we take any kind of position when you don't have any better records than they do well we're not asking this court to take a position on that today i think ultimately there would be fact finding like there was in the prior four case and potentially a bench trial review would have you actually talk to the officials involved to decide whether or not there was actual notice given and what the reasons for the notice of the statute is quite five where that and i apologize because those aren't side in the brief they go to the merits of the position we'd like to pursue on remand if this court agrees with us in this case is proper and properly dismissed where the court held that there is jurisdiction  for the court to determine whether or not the extension requests reasonable and so that you can look to whether they provided an adequate explanation of whether or not they provided notice at all and i think that this is the problems recognized in that decision have continued to linger here that resulted in the problem in this case where you have customs not acting over a period of several years and at that point the importer has no option but to go to court and seek a declaration that these things have been  right and i think in the end that's confusing i had to work through that myself through either but i think there were several different claims with respect to the extensions and these are set forth in the second amendment mended complaint in j seventy seven to ninety seven and the acknowledgement point goes to ford had a claim that customs didn't even purport to extend the deadlines and so that the the court of the international graded out that they had  entries were properly extended your honor they were extended right and again it then it wouldn't matter but force position is that even though customs is claiming that it purported to extend them it didn't those extensions can't take  effect because they didn't provide the requisite notice and they didn't provide an adequate reason so the even the customs has taken the position that they purported to extend them those extensions don't operate and that's that's the legal position of florida seeking a declaration on the fourth is right on that then it's clear that these entries were deemed liquidated by operational law and there's no reason why ford isn't title to declaration of that today as opposed to having to go through an administrative process that would be looking at different issues going to the valuation and things like they brought their action if it was and i actually vs an action they would receive a judgment and the agency of the government always were complies with judgments of this court so if you have to do it through a declaratory judgment as opposed to suing for the money judgment in any context i versus a there's no reason to think the government wouldn't comply with that declaratory judge but how do they do it if you if there was some way to ascertain that you really did not file any accept the protest of the liquidation but the problem here is that you may never liquid it actually liquidate the questions what you agreed that if you haven't liquidated the thing that they're allowed to sue under for the corpor if there had if in fact yes your honor if in fact the entries had deemed liquidated there may be instances by which in court to come to court and seek a declaratory judgment under i however this all at this at the time they brought suit there hadn't been any liquidation why isn't there jurisdiction under i given the fact that you say that if there hasn't been a liquidation there isn't jurisdiction yes your honor the answer lies in one thousand u s c fifteen fourteen in that statute it was protested determinations and it says decisions by u s customs imports on expense are you said you told me that if there's been a liquidation they could sue under it for a declaration that you owed the money ok so  a liquidation the time had passed they had no notice of let's take their situation if we probably should and of these circumstances they have no notice so where do they go th weigh congress anticipated that reconciliation entries would it would take approximately four years to resolve which makes sense because given the nature of reconciliation claims that there's an result issues and that the importer in the agency would be working but you don't really even have to file extensions ever and use an extension this you think the statute gave you four years in every instance to do whatever you want to know your honor the and important what the agency would have to comply with the but if you don't allow them to sue before four years so that what you're saying in essence is there is no need for extensions you have forty years under every case an importer could possibly sue before four years but the main point of my base to the day after the the one year the quotation time expires in this matter because for i not because ford findings entering into the same our protests will be terminations but you said a minute ago that ford had reasonable expectations because they were in negotiations that is faxes and that's something that has to be established that's not something that we can determine here as a matter of binding on this court can we you're correct or honor that those are facts so we're assuming facts to resolve jurisdiction know your allowance to me like we've got a problem here no your honor our primary point is under fifteen fourteen or fifteen eighty one the legality of customs decisions which is which we're challenging  condition of its entries our protest was from a nations and much like this court did in hartford fire insurance you have to look at the nature of the claim essentially what they're doing is they're trying to challenge a protest about determination and congress through the structure of that no your honor i'm not saying that but that the statute does provide for interest for that period of time a upon which the government retains importers money but the main purpose of this case is preserving a as the preferred jurisdictional form premature i don't understand because through the structure of fifteen anyone in fifteen fourteen and the concept that congress intended for customs determinations with respect to reconciliation and the legalities of all what i didn't find time limit you liquidate within a year or it's deemed liquidated so the year expires how does they enforce the time if in fact customs had done nothing during that year period of time then perhaps they can come to court and establish to court that a this is not available or manifestly adequate and they have a valid claim under ott but if we have i wish soon the facts to be as they say in this instance and therefore we have to assume that is looking at the nature of the claim in determining which provision of fifty one is the appropriate provision that congress intended for that claim to be resolved or relies upon the case of digits the only difference between the two in this case is that i becomes that the election of the importer and this court is held in american air parcel that certainly aber says i cannot be at the election of the import meaning here or could be there nor to as long as you've liquidated then they have to use a or you've given adequate notice in which case they don't have any basis also to to bring in i action so why isn't it all in your hands because let's look at it this way what would have happened had four brought the action under a with respect to the entries that it claims were not properly extended with a court had jurisdiction over those or that against are entitled to a bench trial its review of agency record versus a against are entitled to a full range of the discovery mechanisms so when you have a challenge that's how the fact intensive for example our challenge here as to whether his opinion that this case really should have been brought under a and not you're yes you're right you're correct judge carmen recognizes that as preferred jurisdictional form for the trial court to resolve issues such as this and when a is manifestly it adequate and available to an input or they have no other choice but to have their claims resolved in the context of the end was we spoke to the entries that had not been  entries and reconciliation claims that there is a normal administrative course and ford like every other import of us fall that administrative course wait for the agency to finish its administrative actions and then have all actions of the agency reviewed in the context of is appropriate to challenge on the expiration of the quotation date when you did liquidate with that converted into any action yes your honor th how you would respond if you lose this case and there is i drew stiction when you liquidate do they need to bring a new action or is the i converted into any they need to bring a new action your honor or you just tell me that continue whether or not there was a liquidation the trucker never had i don't know what's the answer if jurisdiction existed under i at the beginning you agree that it was not lost as a result of the because as injunction the liquidations was laying the ground the foundation for for its jurisdiction the property of the drowning of the one year time limit you don't really have to abide by it why is there a one year time government because there was no reconciliation that there was you have to go there has to be something you can challenge something you can protest and there wasn't there was this it was as if you agree that watching frequency ation that fifteen fourteen  he didn't dispute that so he agreed with us that far he simply found that that jurisdiction could be ousted with respect to liquidations afterwards now with respect to fifteen eighty one i we just like we did seek a refund in this action it's on page ninety six and we do congress provided that entries would be deemed liquidated after a year because of the problems of customs not acting customs position in this case is that it gets to wait at least four years and the kicker is is if the importer waits that long to act challeng customs doesn't act and customs can come back and make the kind of statue in the patients argument that it's made here and say that importer didn't act soon enough and so that's the real kicker that the importer get for waiting for the ministry of agency to act there was no communication between the agency and four during the relevant period here two thousand and five two thousand and eight that's discuss it pages ten to twelve of the brief and we haven't as much talked about that the court of international trades  basis that the court of international trade identified were pages eighteen to twenty of its decision it went to the availability fifteen eighteen when i but that was not available at the times actually was filed rule fifty seven of the federal rules of civil procedure specifically recognizes that the possible availability of a different remedy is not a reason to to grant a clear tory relief ordinary ordinarily this court looks to whether the dispute is concrete whether that's hard and whether the parties would benefit from the declaration that's clearly the case here with where the position is that by operational staff shoot these entries have been liquidated by operational war customs was holding onto its refunds for a period of several years after ford was entitled to them it was entitle to a declaration that these entries had been liquidated by operation of law and the courts have