[00:00:05] Speaker 05:
Mr. Lenhardt, please proceed.

[00:00:16] Speaker 03:
Have you noticed, Mr. Lenhardt, we always say the fun case is for last.

[00:00:19] Speaker 04:
I certainly agree that this is a fun case.

[00:00:22] Speaker 04:
It's a case that comes out of anti-dumping counter-inverting duty area, but it's procedural.

[00:00:30] Speaker 04:
Your Honor, may I please record my name is Mark Lenhardt.

[00:00:32] Speaker 04:
I represent CMEC-NA in this interlocutory appeal.

[00:00:36] Speaker 04:
from the Court of International Trade's denial of Sumac NA's motion for preliminary injunction.

[00:00:48] Speaker 03:
If the injunction in the countervailing duty case is dissolved, are you prevented from immediately refouling your motion for a preliminary injunction in the underlying anti-dumping duty case?

[00:01:00] Speaker 04:
Effectively, yes.

[00:01:01] Speaker 04:
And the reason is because the court

[00:01:04] Speaker 04:
failed to follow this court's binding precedent in Eugene and American Signature, and dismissed those, or dismissed Sumac and his argument regarding Eugene and American Signature as merely split.

[00:01:18] Speaker 02:
Why does that affect, as I understood Judge Waller's question was, why aren't you adequately protected by the statutory injunction in the CV case?

[00:01:28] Speaker 02:
And I might.

[00:01:30] Speaker 02:
You've demonstrated, in this case, the speed

[00:01:34] Speaker 02:
with which you can move when you have to.

[00:01:37] Speaker 02:
Because you jump, you know, Johnny on the spot to go in and ask for your TRO here.

[00:01:41] Speaker 02:
So you're all primed, and you're ready to go, right?

[00:01:44] Speaker 03:
Yes.

[00:01:45] Speaker 03:
And I might add, you have the government's word.

[00:01:48] Speaker 04:
Well, I have.

[00:01:50] Speaker 03:
I mean binding word in court.

[00:01:53] Speaker 04:
Sort of.

[00:01:53] Speaker 04:
I mean, yes.

[00:01:54] Speaker 04:
We're going to try to bind it down.

[00:01:56] Speaker 04:
Excellent.

[00:01:59] Speaker 04:
Let me see if I have a question.

[00:02:01] Speaker 02:
The first point is there is, and this is the basis on which the Corp of National Trade denied your petition for reconsideration, as I understand it, said you're protected, right?

[00:02:10] Speaker 04:
Right, they said that we already had our relief because of the injunction.

[00:02:13] Speaker 02:
Right, but you are fully protected now, correct?

[00:02:16] Speaker 04:
Not exactly.

[00:02:17] Speaker 02:
Well, can the customers liquidate those entries?

[00:02:22] Speaker 04:
While the CVD case is ongoing and that injunction is in place, the answer is no.

[00:02:28] Speaker 04:
There's no telling what's going to happen with that case and when it's going to end.

[00:02:33] Speaker 02:
Right.

[00:02:33] Speaker 02:
And at the moment that you become worried that that protection is gone, you're Johnny on the spot with a TRO.

[00:02:41] Speaker 04:
However, at this point- Who controls hardware?

[00:02:44] Speaker 04:
Excuse me.

[00:02:45] Speaker 04:
Hardware.

[00:02:45] Speaker 04:
Yes.

[00:02:46] Speaker 04:
It's parent company is a sumac company.

[00:02:55] Speaker 03:
Yes.

[00:02:55] Speaker 03:
Are they represented by the same council?

[00:02:57] Speaker 04:
They are, indeed.

[00:02:58] Speaker 03:
So you're going to know, aren't you?

[00:03:00] Speaker 04:
I will.

[00:03:01] Speaker 04:
But the issue is not so much one I'll know, although that is a question.

[00:03:07] Speaker 04:
In the other case, there are other parties, and that case could be dissolved, and the injunction's dissolved in that case.

[00:03:12] Speaker 04:
But what will happen at the Court of International Trade, which is already- Can't your party stand in?

[00:03:18] Speaker 02:
You're involved in the other case.

[00:03:20] Speaker 04:
Hardware is involved in the other case, and Sumac NA, which is the affiliated importer, is in this case.

[00:03:26] Speaker 04:
But the Court of International Trade has already refused to follow Eugene and American Signature, which address the unique... Well, you can say they refused to follow that when your original P.I.

[00:03:40] Speaker 02:
was turned down.

[00:03:41] Speaker 04:
And in the motion for reconsideration.

[00:03:43] Speaker 02:
I mean, that is to say, in the motion for reconsideration, the judge acknowledged... What's the motion for reconsideration decision say, actually, about the case law?

[00:03:54] Speaker 04:
In the reconsideration, the judge acknowledged that American Signature was out there, but said that this court had two grounds for providing relief in American Signature.

[00:04:05] Speaker 04:
And one of them was that there was no other relief available.

[00:04:11] Speaker 04:
And on that ground, rejected the motion for reconsideration.

[00:04:15] Speaker 04:
The court showed no.

[00:04:16] Speaker 03:
But Eugene and American Signature look at Shinnai and say,

[00:04:24] Speaker 03:
Availability of Shinae relief is uncertain.

[00:04:30] Speaker 03:
So there's showing irreparable harm.

[00:04:34] Speaker 03:
Here, assuming I'm correct, that the government has represented unequivocally that if sumac prevails on the merits of this case, the CIT has the power to grant sumac relief, including the authority to order the government to liquidate

[00:04:54] Speaker 03:
SUMAC entries, now that's in the record, and that SUMAC would be entitled to refunds plus interest on any overpayments, that's in their briefings, also in the record.

[00:05:05] Speaker 03:
Assuming that's correct, that distinguishes, right?

[00:05:08] Speaker 04:
Not exactly, because that's their opinion, and they don't speak for the Court of International Trade or this court.

[00:05:13] Speaker 03:
They speak for themselves, though.

[00:05:15] Speaker 03:
They do.

[00:05:16] Speaker 03:
They've just bound themselves.

[00:05:17] Speaker 04:
Yes, they have.

[00:05:18] Speaker 02:
The only thing they can't speak for is that the CIT would actually order reliquidation.

[00:05:23] Speaker 04:
Exactly.

[00:05:24] Speaker 02:
And this is what this court... I mean, so, but if the CIT rules in your merits, on your merits, in favor of you and doesn't grant reliquidation, then you're up here on appeal.

[00:05:36] Speaker 02:
I don't know if the government's willing to vouch for your attorney's fees as well, right?

[00:05:41] Speaker 04:
Right.

[00:05:41] Speaker 02:
But that's the only missing link.

[00:05:43] Speaker 04:
Well, they said they wouldn't contest reliquidation, but they didn't say they wouldn't contest or appeal the merits.

[00:05:49] Speaker 04:
And so we could be up here again.

[00:05:51] Speaker 04:
You know, the timing of these two cases, they're on separate tracks.

[00:05:55] Speaker 04:
There's nothing that binds the timing of this case to the timing of the CVD case.

[00:05:59] Speaker 02:
And this is a point that was made in the... Well, no, but they... You may get an appeal on the merits, but if you went on the merits below, then you're going to want an order to... In essence, you want reliquidation.

[00:06:13] Speaker 02:
You may not get it.

[00:06:15] Speaker 02:
You may have to come up here on appeal.

[00:06:17] Speaker 02:
If you went on appeal, guess what's been running all the time?

[00:06:21] Speaker 02:
interest.

[00:06:21] Speaker 02:
You're like a banker.

[00:06:24] Speaker 04:
You stand to gain.

[00:06:25] Speaker 04:
But there's no guarantee that the CVD case will continue.

[00:06:28] Speaker 04:
And this is a point that was made in the case ad hoc.

[00:06:33] Speaker 02:
That's in connection with the injunction that's in place now.

[00:06:36] Speaker 02:
Correct.

[00:06:36] Speaker 02:
But what Judge Wallach and I have been asking is, what barred you from running into court and making, again, your eugenic argument at that point in time?

[00:06:51] Speaker 02:
I certainly could, but the Court of International Trade has already made its... Judges don't like to, if injunctions are issued on a discretionary basis, appellate judges don't like to throw that over.

[00:07:03] Speaker 02:
Appellate judges don't like to reach issues unless they have to.

[00:07:07] Speaker 02:
Why should I have to deal with this difficult question about Eugene and American Signature now when I may never have to?

[00:07:14] Speaker 04:
Because the Court of International Trade has already showed that it's not going to follow Eugene and American Signature.

[00:07:20] Speaker 04:
Um, and, um... Well, then you get an appeal.

[00:07:25] Speaker 04:
I don't know that I... I mean, I, I could, you know, come up here and go down and come up and go down, but I think that the point is that there are two things here.

[00:07:34] Speaker 02:
Is, is, is attorney in convenience?

[00:07:37] Speaker 02:
No, but... For an injunction?

[00:07:39] Speaker 04:
No, but the, uh, I think the, uh, the relevant fact here is that, um, the court has already said that it won't end

[00:07:47] Speaker 04:
The CVD litigation is on a different track, and that preliminary injunction is different.

[00:07:51] Speaker 02:
The court may have said that because the court thinks you've got such a slam dunk winner on the merits.

[00:07:56] Speaker 02:
And why don't you just hurry up and let me litigate that and issue the order telling them if they go ahead and liquidate, to reliquidate.

[00:08:04] Speaker 04:
But there's still the possibility of appeal.

[00:08:07] Speaker 04:
And while the appeal is pending, there wouldn't necessarily be any reliquidation.

[00:08:12] Speaker 04:
And the entire time the entries are unprotected,

[00:08:15] Speaker 04:
as when the CVD case, if it continues or ends, that date is uncertain.

[00:08:22] Speaker 03:
Tell me this.

[00:08:23] Speaker 03:
Shinyei seems to say that relief is available under 1581 on it.

[00:08:28] Speaker 04:
It does, however.

[00:08:30] Speaker 03:
However?

[00:08:30] Speaker 04:
This Court of American Signature.

[00:08:33] Speaker 03:
Right, right.

[00:08:34] Speaker 03:
So Signature and Eugene seem to say not always.

[00:08:37] Speaker 04:
They say in the preliminary injunction setting, the Court of International Trade should not see Shinyei

[00:08:44] Speaker 04:
as undermining a claim to irreparable harm, which is defined by Zenith.

[00:08:50] Speaker 04:
The liquidation is irreparable harm.

[00:08:52] Speaker 03:
Which is why, as long as the government gave me that guarantee, why should I have to resolve that?

[00:08:58] Speaker 03:
Those are presidential cases.

[00:09:00] Speaker 04:
Again, the government does not speak for the court, for any court.

[00:09:04] Speaker 04:
And so while they might not contest it, the court may disagree that Chenier applies to this case.

[00:09:10] Speaker 04:
There's no guarantee that- And if the court, if the

[00:09:14] Speaker 05:
CIT disagrees, what recourse do you have?

[00:09:18] Speaker 04:
Appeal to this court.

[00:09:20] Speaker 05:
Okay.

[00:09:20] Speaker 05:
And then if we disagree, what happens?

[00:09:23] Speaker 04:
Well, I still have an appeal to the Supreme Court, I suppose.

[00:09:25] Speaker 05:
But that would all be only on the issue of whether or not you can attempt to get the money back, even if you have a clear victory on the merits, right?

[00:09:39] Speaker 05:
Suppose I think 1516A clearly, unequivocally and unambiguously

[00:09:43] Speaker 05:
files in your favor.

[00:09:47] Speaker 05:
So now the question we're debating now, as I understand it, is whether or not you'll even have an entitlement to reliquidation to right the wrong that would be done to you.

[00:09:59] Speaker 05:
We could win the case but lose.

[00:10:03] Speaker 05:
So is it possible that if both the CIT and the Federal Circuit aren't willing to give you the break that comes

[00:10:12] Speaker 05:
vis-a-vis Eugene, and I can't remember all the names.

[00:10:17] Speaker 04:
American Signature.

[00:10:18] Speaker 05:
American Signature.

[00:10:19] Speaker 05:
Then you would lose across the board, even though you may have a completely meritorious claim under the statute.

[00:10:26] Speaker 04:
It's possible, yes.

[00:10:28] Speaker 05:
And so would that be the irreparable harm that you're predominantly arguing, or one of them?

[00:10:33] Speaker 04:
Yes, it is that if there's not an injunction in place, then the entries could liquidate, and then that would moot our case, our claim under Zena.

[00:10:43] Speaker 04:
And if no court were to extend Xinyi to the circumstances of this case, then despite winning on the merits, we would effectively lose because the injuries would be liquidated.

[00:10:57] Speaker 04:
We wouldn't be allowed to reliquitate.

[00:10:58] Speaker 04:
So that would be irreparable harm.

[00:11:00] Speaker 04:
That is irreparable harm, exactly.

[00:11:01] Speaker 04:
In Ad Hoc Shrimp Trade Action Committee, this is 56F sub-second 1383.

[00:11:08] Speaker 02:
Why does this court get the benefit of you joining an American Signature?

[00:11:16] Speaker 04:
I'm sorry.

[00:11:17] Speaker 02:
Well, your argument is that your client should get the benefit of those.

[00:11:23] Speaker 02:
I'm saying why, on the facts.

[00:11:25] Speaker 02:
Why does your case line up with them?

[00:11:27] Speaker 04:
Well, both of those are cases that were brought under the CIT's residual jurisdiction, 1581i, a 28 USC 1581i.

[00:11:36] Speaker 04:
Both were challenging liquidation instructions similar to Shinye.

[00:11:40] Speaker 04:
And the Court of International Trade denied the preliminary injunction in those cases, citing in part Shinye and citing also alternative relief in protest actions and et cetera.

[00:11:53] Speaker 02:
And you're also on your eye, right?

[00:11:56] Speaker 02:
You're under the same jurisdiction.

[00:11:57] Speaker 04:
Those were under 1581A, the protests, the alternative actions and alternative relief.

[00:12:05] Speaker 04:
And even in those cases, which were fairly similar to Shinye, this court found in Eugene said that the scope of Shinye is a difficult one for which the resolution is not obvious and concluded that the issue is sufficiently complex that we should resolve it only in a setting in which it has been litigated by the parties and decided by the trial court.

[00:12:25] Speaker 04:
So Shinye is not something that the Court of International Trade is supposed to address in the preliminary injunction setting.

[00:12:32] Speaker 04:
All right.

[00:12:33] Speaker 05:
You are in your rebuttal time.

[00:12:34] Speaker 05:
Do you want to save the rest?

[00:12:35] Speaker 04:
Yes, I would.

[00:12:36] Speaker 05:
Thank you very much.

[00:12:36] Speaker 05:
Very good.

[00:12:37] Speaker 05:
Let's hear from Mr. Miller.

[00:12:44] Speaker 00:
Hello, Mr. Miller.

[00:12:46] Speaker 00:
Good afternoon, Your Honors.

[00:12:47] Speaker 00:
May it please the Court.

[00:12:50] Speaker 00:
An injunction in this circumstance is unnecessary because SUMA cannot demonstrate irreparable harm as a result of the potential for the government to liquidate its entries.

[00:13:01] Speaker 00:
First,

[00:13:02] Speaker 00:
the government is enjoined from liquidating its entries as a result of an injunction in the separate CVD proceeding.

[00:13:08] Speaker 00:
But secondly, fundamentally with respect to the law pursuant to 28 U.S.C.

[00:13:13] Speaker 00:
2643 C.1, the trial court would have the authority to order reliquidation should SUMAC prevail the merits.

[00:13:22] Speaker 05:
And we have represented as... Why is this case here?

[00:13:26] Speaker 05:
And the reason I say it is 1516 A is completely clear and unambiguous.

[00:13:31] Speaker 05:
their right, your wrong.

[00:13:33] Speaker 05:
What argument do you have against that?

[00:13:35] Speaker 00:
In terms of the merits, Your Honor.

[00:13:37] Speaker 05:
Correct.

[00:13:38] Speaker 05:
I don't understand why this case is here.

[00:13:40] Speaker 05:
1516A is crystal clear in their favor.

[00:13:45] Speaker 05:
Why are we doing this?

[00:13:47] Speaker 00:
We disagree with their interpretation of the statute.

[00:13:49] Speaker 00:
If their interpretation is adopted, Congress would be able to unilaterally delay the effectiveness of a court decision solely by

[00:13:57] Speaker 00:
delaying the publication of the Timkenotas.

[00:14:00] Speaker 00:
And certainly, commerce does not have that type of discretion.

[00:14:02] Speaker 00:
If we look at the framework of 1516A.

[00:14:05] Speaker 05:
Forget the framework.

[00:14:06] Speaker 05:
Let's just look at the exact language of 1516A.

[00:14:12] Speaker 05:
Shall be liquidated in accordance with the determination of the secretary if they are entered on or before the date of publication in the Federal Register.

[00:14:22] Speaker 05:
Were these before

[00:14:25] Speaker 05:
the date of publication in the Federal Register?

[00:14:28] Speaker 00:
Yes, Your Honor.

[00:14:28] Speaker 00:
They were filed.

[00:14:29] Speaker 00:
But also, the statute needs to be considered with respect to the next sentence, which says that if we look at specifically 1516 A.E., liquidation in accordance with the final decision of a trial court.

[00:14:41] Speaker 00:
So it goes on to say that the entries should- But there's a really- I don't understand that argument.

[00:14:46] Speaker 05:
There's a really good reason for this, too, right?

[00:14:49] Speaker 05:
We want to hold people to the rate that they have notice of because these

[00:14:55] Speaker 05:
Jiangsu notices are private and confidential, correct?

[00:15:00] Speaker 05:
Until they're published in the Federal Register, people are not aware of them, except for whoever the party was in that case.

[00:15:05] Speaker 00:
Well, Nusumaq Harbor knew that they were assigned the China-wide rate before judicial review.

[00:15:09] Speaker 00:
And this is reflected at appendix 197 of the record.

[00:15:14] Speaker 05:
I'm sorry.

[00:15:14] Speaker 05:
Let me ask my question one more time.

[00:15:16] Speaker 05:
Aren't Jiangsu three orders confidential opinions?

[00:15:20] Speaker 00:
There were two.

[00:15:21] Speaker 00:
There was a public decision and a confidential decision, yes, Your Honor.

[00:15:24] Speaker 05:
OK.

[00:15:25] Speaker 05:
And so then later, it's supposed to be within 10 days, is my understanding.

[00:15:30] Speaker 05:
Is that right?

[00:15:31] Speaker 05:
Comes a Timkin notice?

[00:15:33] Speaker 00:
Of the court decision, yes.

[00:15:34] Speaker 00:
Of a decision that's adverse to commerce.

[00:15:36] Speaker 05:
And that Timkin notice is required to be published in the Federal Register, correct?

[00:15:41] Speaker 00:
Yes, Your Honor.

[00:15:42] Speaker 05:
But in this case, it wasn't published within 10 days like it was supposed to be.

[00:15:45] Speaker 05:
It wasn't published for 39 days.

[00:15:49] Speaker 05:
Is that right?

[00:15:50] Speaker 05:
I believe it's 49 days, Your Honor.

[00:15:51] Speaker 05:
49.

[00:15:52] Speaker 05:
Okay, right, because you were 39 days late.

[00:15:54] Speaker 05:
That's right, because of the 10 day.

[00:15:55] Speaker 05:
So it wasn't published for 49 days.

[00:15:58] Speaker 05:
So if it wasn't published and the statute unambiguously says one or before the date of publication in the Federal Register, I don't understand why we're here.

[00:16:10] Speaker 05:
You would like the statute to be different, but we interpret it as it's written.

[00:16:14] Speaker 05:
And you may have good policy reasons why it should be different, but we interpret it as it's written.

[00:16:19] Speaker 05:
And it's written really clearly.

[00:16:21] Speaker 05:
So I don't understand.

[00:16:23] Speaker 00:
So I would direct the court's attention to the Great American case, which we cite in our briefs, as well as the Dixon Ticonderoga case, 468 F3rd at 1355.

[00:16:34] Speaker 00:
And in both of those instances, it discusses a failure of an untimely notice.

[00:16:39] Speaker 00:
And in both instances, the failure was analyzed under the rule of prejudicial error, which is derivative of the APA.

[00:16:45] Speaker 00:
And pursuant to the rule of prejudicial error, the administrative action for which there should be notice

[00:16:50] Speaker 00:
will only be set aside if the claimant can demonstrate substantial prejudice.

[00:16:55] Speaker 00:
Here, SUMAC cannot demonstrate substantial prejudice.

[00:16:59] Speaker 00:
Subsequent to the remand determination, they knew that Commerce had assigned them the China-wide rate.

[00:17:04] Speaker 00:
And this is where I direct the Court's attention to Appendix 197, which SUMAC reflects that they participated in the remand determination.

[00:17:12] Speaker 00:
And as part of the remand determination, Commerce assigned them the China-wide rate.

[00:17:16] Speaker 02:
This is all on the likelihood of success on the merits, right?

[00:17:19] Speaker 00:
Yes, Your Honor, it is.

[00:17:20] Speaker 02:
And the issue, there's been no adjudication of that below.

[00:17:23] Speaker 02:
No, Your Honor, effectively.

[00:17:25] Speaker 02:
And the issue before us is whether or not there should be a PI.

[00:17:28] Speaker 02:
So what are we supposed to do with the representations and warranties that the government's given us?

[00:17:33] Speaker 02:
Were you counseled below, Mr. Miller?

[00:17:35] Speaker 03:
I was, Your Honor, yes.

[00:17:35] Speaker 03:
So you made that unequivocal representation.

[00:17:38] Speaker 00:
I did, Your Honor.

[00:17:39] Speaker 00:
If SUMAC is to prevail on the merits, the government would not challenge the trial court from ordering reliquidation.

[00:17:45] Speaker 00:
And for that reason, because the trial court has the authority pursuant to 28 U.S.C.

[00:17:50] Speaker 00:
2643 C-1, because the trial court has that authority, SUMAC cannot demonstrate a reputable harm for purposes of obtaining the objection.

[00:18:00] Speaker 02:
Will you commit that you're not going to challenge jurisdiction under I?

[00:18:05] Speaker 02:
Are you challenging the jurisdiction in the underlying case under I?

[00:18:10] Speaker 02:
No, Your Honor.

[00:18:10] Speaker 00:
In fact, that case is fully submitted.

[00:18:12] Speaker 00:
Last week, we argued the merits before the trial court.

[00:18:14] Speaker 02:
And you warrant that you won't at any time challenge jurisdiction under eye?

[00:18:20] Speaker 00:
In this case?

[00:18:21] Speaker 00:
In this case, as the facts currently stand, no, we would not be challenging jurisdiction under eye.

[00:18:24] Speaker 02:
Are you in a position to make that a representation for the government?

[00:18:29] Speaker 00:
Well, I'd like to make this bankable.

[00:18:33] Speaker 00:
Certainly, I haven't had an opportunity to talk with my reviewers.

[00:18:36] Speaker 00:
But I will say that based upon the facts of this record, and we're down to the end of the case,

[00:18:40] Speaker 00:
The case is fully submitted to the trial court.

[00:18:43] Speaker 02:
You won't challenge the parent order of reliquidation, right?

[00:18:46] Speaker 00:
Exactly.

[00:18:46] Speaker 00:
We have not challenged jurisdiction.

[00:18:48] Speaker 00:
And we have unequivocally stated on the record that should TUMEC prevail on the merits, the trial court has the authority to order reliquidation.

[00:18:55] Speaker 02:
And on that basis... And if they went on the merits and you will not challenge reliquidation and you won't appeal here?

[00:19:03] Speaker 00:
Well, in terms of the merits of the statutory interpretation that Judge Mora was asking about, I can't.

[00:19:09] Speaker 00:
make any representation with respect to that.

[00:19:12] Speaker 02:
I'm just trying to find out what's bankable here.

[00:19:17] Speaker 03:
The underlying statutory interpretation might come up here if the court gets it.

[00:19:21] Speaker 00:
Oh, most certainly, Your Honor.

[00:19:22] Speaker 00:
There is definitely a legitimate dispute between the parties as to the interpretation of 1516A.

[00:19:27] Speaker 05:
You say so.

[00:19:28] Speaker 05:
I don't agree.

[00:19:28] Speaker 05:
Go ahead.

[00:19:29] Speaker 02:
But with respect to the... But not as to whether or not this case fits under I.

[00:19:34] Speaker 00:
Exactly, Your Honor.

[00:19:34] Speaker 00:
We have not challenged jurisdiction under 1581i.

[00:19:37] Speaker 00:
The case is fully submitted to the trial court.

[00:19:39] Speaker 00:
The trial court could render its determination on the merits at any day, and we have indicated on the record that should Sumac prevail... Your review is that this case qualifies for Shinnai if they went on the merits.

[00:19:50] Speaker 00:
If they went on the merits, yes.

[00:19:52] Speaker 00:
We would believe that the rule of Shinnai would apply, which means that the trial court would have the authority to order reliquidation.

[00:19:57] Speaker 05:
Does it have to?

[00:19:59] Speaker 00:
Well, that is the relief that SUMAC is seeking.

[00:20:01] Speaker 05:
Does the trial court have to order reliquidation, or do they have the discretion to decide that they don't have to or shouldn't?

[00:20:09] Speaker 00:
Well, currently the government's enjoying from liquidating the entry.

[00:20:12] Speaker 00:
So if that injunction remains in place, no liquidation would occur.

[00:20:16] Speaker 02:
It's hypothetically possible in the litigation of this case that they can win on the merits, and the judge can say, I'm terribly sorry, I'm not going to order reliquidation.

[00:20:24] Speaker 02:
That could occur, but if that were to occur, the judge can do all kinds of things.

[00:20:28] Speaker 02:
Right?

[00:20:28] Speaker 00:
Well, certainly, the trial court... But it would be reversible error, wouldn't it?

[00:20:31] Speaker 00:
Well, sir, that was my point, is that Sue Mike would then be able to appeal to this court and have the... Well, that's what I'm trying to get at, and you're not going to challenge them on that appeal.

[00:20:38] Speaker 02:
There's... The most certainly would be permitted to appeal a trial court making a determination... I'm just trying to cover them in all ways, shape, and form, except for their attorney's fees on the appeal up here, which I don't think you have to pay.

[00:20:50] Speaker 00:
We would not be paying attorney's fees, Your Honor, but you're exactly right.

[00:20:53] Speaker 00:
The trial court, in its own discretion, can decide what authority it has.

[00:20:56] Speaker 00:
We have represented that

[00:20:57] Speaker 00:
We believe the trial court has the authority to award a reliquidation.

[00:21:01] Speaker 00:
If, in fact, we lose on the merits of the actual statutory interpretation, that question would come up for appeal.

[00:21:06] Speaker 02:
I understand that.

[00:21:07] Speaker 00:
If they would win on the merits and the trial court makes a determination that they do not have the authority, SUMAC would be able to appeal the trial court's decision of their own purview of their authority.

[00:21:16] Speaker 05:
But the government from... What if we decided that the trial court was right they didn't have the authority to reliquidate?

[00:21:22] Speaker 00:
Well, if they didn't have the authority to reliquidate, then- Even though they won on the merits in a little-eyed case.

[00:21:30] Speaker 02:
Right.

[00:21:31] Speaker 02:
And it came up here.

[00:21:32] Speaker 00:
Well, we're certainly not in that circumstances, Your Honor.

[00:21:35] Speaker 00:
And the government is enjoined from liquidating too much entry.

[00:21:37] Speaker 02:
So I think that- Well, you would be on their side on the appeal up here.

[00:21:42] Speaker 00:
Well, we would certainly stand behind our representations that the trial court has the authority- Well, I would make you file a brief supporting this.

[00:21:49] Speaker 00:
I don't know whether we would file a brief in support.

[00:21:52] Speaker 00:
All I can represent to you today is that the government's position is that the trial court does have the authority to order reliquidation in this particular circumstance should SUMAC prevail in the merits.

[00:22:02] Speaker 03:
Let me say this, Mr. Miller.

[00:22:05] Speaker 03:
You were in front of me for close to 16 years when I was on the bench down there, and my experience was I could take your word to the bank.

[00:22:14] Speaker 00:
Yes, Your Honor.

[00:22:14] Speaker 00:
We certainly have made that representation both in writing... You personally?

[00:22:18] Speaker 00:
Yes, Your Honor.

[00:22:19] Speaker 00:
I can take your word to the bay.

[00:22:20] Speaker 00:
Yes, Your Honor.

[00:22:21] Speaker 00:
And for the specific reason that we have made that representation, that the trial court can orderly... Well, that distinguishes the case from Ujian.

[00:22:28] Speaker 00:
Most certainly.

[00:22:29] Speaker 02:
In Ujian, we specially said in Ujian, the government is not taking any position.

[00:22:34] Speaker 00:
And we made that exact distinction in our briefs.

[00:22:37] Speaker 00:
And for that exact reason, based upon that representation, is the reason why

[00:22:41] Speaker 00:
we cannot demonstrate.

[00:22:43] Speaker 05:
Am I right that all this comes down to is who's going to hold the money while the statutory termination of 1516A gets decided, right?

[00:22:54] Speaker 05:
Who holds the money?

[00:22:55] Speaker 00:
Certainly.

[00:22:56] Speaker 05:
All that this comes down to is who's going to hold the money during that time.

[00:23:00] Speaker 00:
Well, yes, and also whether SUMAC would be able to pay.

[00:23:03] Speaker 02:
Well, the money that they think they should pay as opposed to the money that Moore wanted, the government's already got that money.

[00:23:10] Speaker 00:
So they paid cash deposits at a rate of 13.18%.

[00:23:13] Speaker 00:
The trial court made a determination that the actual rate should be 238.95%.

[00:23:18] Speaker 00:
They have not paid the cash deposits.

[00:23:20] Speaker 00:
on that difference.

[00:23:22] Speaker 00:
So currently, the government is left exposed for that liability.

[00:23:25] Speaker 00:
Should we prevail the merits and SUMAC not be able financially to make that money?

[00:23:30] Speaker 05:
We made an assertion in your brief that you suspect or are concerned they wouldn't be able to.

[00:23:34] Speaker 05:
Is there a factual foundation for that assertion?

[00:23:38] Speaker 00:
SUMAC did not make any representations to the trial court that it could not pay these duties.

[00:23:42] Speaker 00:
And because they could not establish their lack of payment, the trial court made a finding that they have not demonstrated irreparable harm

[00:23:50] Speaker 00:
in the financial sense, and the ability to pay sense.

[00:23:53] Speaker 02:
If we don't issue a preliminary injunction, then in due course fairly quickly, the goods will be liquidated at the higher... No, not... So long as the injunction, the CV sits in place, nothing happens.

[00:24:05] Speaker 02:
That's correct, Your Honor.

[00:24:06] Speaker 02:
Only if that injunction goes away, then there'd be liquidation at the 230, whatever, and they'd have to pay the money up.

[00:24:14] Speaker 02:
And then the question would be, they'd hope they'd get it back later after winning on the merits and getting a reliquidation order.

[00:24:19] Speaker 00:
Yes, Your Honor.

[00:24:20] Speaker 02:
And in that separate CVD proceeding... And they'd get interest in that case.

[00:24:24] Speaker 00:
They would, Your Honor.

[00:24:24] Speaker 00:
Yes, that's correct.

[00:24:25] Speaker 00:
The separate CVD proceeding, the matter will be fully submitted to the trial court pursuant to the current scheduling order on June 20, 2019.

[00:24:33] Speaker 00:
So we know that at least from here to June 20, 2019, there is no reputable harm because the government would be enjoined at the very earliest date

[00:24:42] Speaker 00:
prior to the court reaching the merits in that CBD proceeding.

[00:24:45] Speaker 05:
But in the balance of the equities, you assert there's no guarantee SUMAC will be able to pay duties in the future.

[00:24:51] Speaker 05:
I guess my question is, do you have any factual foundation?

[00:24:55] Speaker 05:
Is this just the, there's no guarantee anyone, there's no guarantee Donald Trump will be able to pay next year.

[00:25:00] Speaker 05:
There's no guarantee anybody will be able to pay.

[00:25:02] Speaker 05:
Is it just sort of one of these throwaway sentences?

[00:25:05] Speaker 05:
Or is there any evidence that gives you reason to think SUMAC will not be able to pay the precipitation to account in this calculation?

[00:25:13] Speaker 00:
There's no evidence that would lead us to believe that SUMAC could not pay.

[00:25:16] Speaker 00:
However, the statutory framework requires the deposit of cash deposits to protect public fisc.

[00:25:22] Speaker 05:
Because in every instance, we don't know whether an importer or training partner... Okay, so this would be an argument you would make in every single case, no matter what, that there's no guarantee this person will be able to pay.

[00:25:30] Speaker 00:
Certainly, Your Honor, and that's the reason why the statute requires the deposit of cash deposits.

[00:25:34] Speaker 00:
It's security for the government that as the case is litigated, should the government prevail, we won't be left exposed in the event that the importer or training partner... But I assume that you think that the same logic should not apply to the government.

[00:25:47] Speaker 05:
We should assume the government is always able to pay.

[00:25:50] Speaker 00:
Well, yes, Your Honor.

[00:25:52] Speaker 00:
Yes, Your Honor.

[00:25:54] Speaker 00:
So for the reasons that SUMA cannot demonstrate irreparable harm, both because the government is enjoined and because the trial court does have the authority, with respect to the government's perspective, for ordering re-liquidation should SUMA prevail in the merits, we request that the court sustain.

[00:26:08] Speaker 03:
In the context of an equitable pursuit, i.e.

[00:26:13] Speaker 03:
seeking an injunction, could the government ask for a bond

[00:26:18] Speaker 00:
Oh, the trial court rules do contemplate the idea of a bond.

[00:26:23] Speaker 00:
However, the trial court has not provided for that instance.

[00:26:26] Speaker 00:
And so we're left with the protections afforded by the statute, which is just cash deposits should the government prevail on the merits of the case.

[00:26:34] Speaker 05:
And they get interest back if you hold the money during all this.

[00:26:39] Speaker 00:
Yes, Your Honor.

[00:26:39] Speaker 00:
The statute provides statutory interest for this money.

[00:26:43] Speaker 02:
What's the statutory rate?

[00:26:45] Speaker 00:
Your Honor, I don't know that off the top of my head.

[00:26:49] Speaker 02:
So I don't know if that makes more sense to leave your money there and let it run or to give it to your friends at Goldman Sachs.

[00:26:57] Speaker 00:
I'm not certain, Your Honor.

[00:26:59] Speaker 00:
Thank you.

[00:26:59] Speaker 05:
Thank you very much, Mr. Miller.

[00:27:02] Speaker 05:
I'm sorry.

[00:27:03] Speaker 05:
Mr. Lenhart?

[00:27:07] Speaker 04:
Thank you, Your Honors.

[00:27:11] Speaker 04:
The Department of Commerce explained that while the CBD appeal is going on,

[00:27:15] Speaker 04:
They cannot enjoin liquidation.

[00:27:16] Speaker 04:
But that by itself is not a bar to preliminary injunction here.

[00:27:21] Speaker 04:
In ad hoc shrimp, the Court of International Trade said that injunctions that are not identical are not duplicative.

[00:27:33] Speaker 03:
What's your response if the CIT offers you an injunction but requires the posting of a bond?

[00:27:40] Speaker 04:
We would address that requirement at the time.

[00:27:45] Speaker 04:
I don't know that my client would be opposed to or in favor of it.

[00:27:49] Speaker 04:
Sorry, I can't say it right now.

[00:27:53] Speaker 04:
The other case is advanced tech materials.

[00:27:55] Speaker 04:
This is slip-up 2013-42 at the Court of International Trade, where the court there said, nowhere in the statute is it indicated that overlapping or complementary injunctive relief is impermissible.

[00:28:08] Speaker 04:
This is something that may be unique to ABCVD, because you have these companion cases, companion orders,

[00:28:14] Speaker 04:
And you have overlapping periods of review.

[00:28:17] Speaker 04:
And so when a company is involved in both the anti-dumping side and the countervailing duty side, it may appeal both cases.

[00:28:25] Speaker 04:
And both cases may go on.

[00:28:27] Speaker 04:
And I've found no instance of the Court of International Trade objecting to or refusing to grant preliminary injunction because of overlapping periods.

[00:28:36] Speaker 04:
And in fact, the Department of Commerce and Department of Justice have not, until this case as far as I know, objected for that reason either.

[00:28:45] Speaker 04:
The Department of Commerce, in its argument, was reluctant to provide a guarantee of no appeal.

[00:28:53] Speaker 05:
Well, he shouldn't have to.

[00:28:54] Speaker 05:
He can appeal 1516A, Young Merit.

[00:28:57] Speaker 04:
Certainly he can.

[00:28:58] Speaker 04:
Certainly he can.

[00:28:59] Speaker 04:
But what that means is that there's an extended time, and the time, the track on which the CVD, the CVD appeal and this appeal under the anti-dumping order are going, they're disconnected and there's no

[00:29:13] Speaker 02:
How are you harmed if you're going to get reliquidation and get interest?

[00:29:18] Speaker 04:
Well, in this particular case, the lowest rate that is possible is the 13.18% that we have deposited.

[00:29:26] Speaker 04:
So we wouldn't get any additional interest.

[00:29:28] Speaker 02:
No, no, no.

[00:29:29] Speaker 02:
But I mean, if you're forced to cough up the larger amount and then sit and wait through some appeals, you get a reliquidation order, you're going to reliquidate, you're going to get your $238 back plus interest.

[00:29:43] Speaker 04:
This is an instance or circumstance that is not unusual here.

[00:29:46] Speaker 04:
Rates go up and down in these anti-dumping duty reviews, and the preliminary injunction protects both parties in terms of, you know, if the rate goes up, then the party doesn't... But it doesn't protect the government if you go out of business, or if you're unable to pay.

[00:30:00] Speaker 04:
Sure, and although the United States government has good credit, there's no guarantee that it would be returned also.

[00:30:07] Speaker 05:
You mentioned earlier, but I think that, you know, if I'm a betting gal, I would put my money on red, white, and blue.

[00:30:13] Speaker 04:
I don't disagree with you.

[00:30:15] Speaker 04:
Nonetheless, it's not an unusual circumstance.

[00:30:18] Speaker 05:
How much money are we talking about here?

[00:30:19] Speaker 05:
What's the difference between 13% and 240% or 238.2?

[00:30:22] Speaker 04:
That number is, it's confidential, but it's on Appendix 234.

[00:30:26] Speaker 05:
Is there, can you give a range or not even?

[00:30:29] Speaker 05:
That would be too much.

[00:30:30] Speaker 05:
I'm not asking you to reach confidential.

[00:30:31] Speaker 04:
13%?

[00:30:33] Speaker 04:
Yeah, 236%.

[00:30:34] Speaker 04:
I mean, I think my arms need to go a little bit longer.

[00:30:37] Speaker 04:
I was looking for dollar.

[00:30:39] Speaker 04:
It's on appendix page 234.

[00:30:41] Speaker 04:
I'll look at it.

[00:30:43] Speaker 05:
Thank you.

[00:30:44] Speaker 05:
I thank both counsel.

[00:30:46] Speaker 05:
The case is taken under submission.