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The basis for the Federal Circuit's decision was that Customs improperly failed to consider all ten factors specified in 19 CFR 111.1 in the definition of "responsible supervision and control." When the regulations says Customs "will consider" the listed factors, that is mandatory language that Customs cannot ignore.

That left open the interesting question of exactly what the Court should do on remand. One option available to the Court would be a remand back to Customs to consider all the relevant factors. Or, the Court could order additional proceedings to let the government create a full record for review in light of the Federal Circuit's interpretation of 111.1.

The Court of International Trade looked at this in the context of a request for a rehearing. In other words, ,was there surprise, accident, or mistake in the first trial? The Court found that the Federal Circuit's interpretation of the regulation was not new or surprising. Rather, because of the very novelty of the question, plaintiff should have anticipated that its interpretation was not necessarily correct. According to the opinion, "This is not a case in which Plaintiff could rely upon a long-established interpretation of the law in planning its legal strategy, but rather a case in which Plaintiff knew well in advance of trial that the success of its case could depend upon establishing evidence to satisfy either of two potential outcomes on the applicability of the [sec.] 111.1 factors."

Thus, what we have here is a failure of the government to prove its case under the legal standard set down by the Federal Circuit. Having tried to make its case and failed, the Court of International trade refused to give the government an opportunity to cure the defects through either administrative of further judicial proceedings. Judgment for the defendant.

And, we're all very likely to see this case once again in the Federal Circuit. Perhaps, if a penalty is ever assessed, we will get the answer to the far more interesting question of whether the penalty statute imposes a limitation on the total liability brokers face. That question is still out there, isn't it?