[00:00:01] Speaker 04:
The United States Court of Appeals for the Federal Circuit is now open and in session.

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God save the United States and this honorable court.

[00:00:11] Speaker 02:
Our first case for argument today is 20-1044, Wang's Yang America Corporation versus United States.

[00:00:19] Speaker 02:
Mr. Rohl, please proceed.

[00:00:22] Speaker 04:
Yes, thank you.

[00:00:23] Speaker 04:
And good morning, your honors.

[00:00:26] Speaker 04:
First, I wanted to thank the court for making these arrangements in these difficult times so that we can proceed.

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Turning to our argument and our position in this case, the thrust of the decision below is that our client, and by the way, there are some, of course, difficult Chinese names to pronounce.

[00:00:41] Speaker 04:
I probably will butcher them, but I'll call my client Wanchong America, or WAC, and there's another company you're going to hear reference the Wanchong, or WQC, just to keep some of the initial clearance trade.

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Anyway, the court below said that my client, the importer, Wanchong America,

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failed to seek an administrative review, and had it done so, it could have availed itself of a 1581C jurisdiction.

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A couple problems with the court's decision below.

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The first problem, which we try to emphasize, is that during the time periods at issue, the merchandise that we're talking about was not subject merchandise.

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And it's pretty fundamental that an importer can only request a review if it imports subject merchandise.

[00:01:27] Speaker 00:
This is Judge Toronto.

[00:01:28] Speaker 00:
Can I ask?

[00:01:31] Speaker 00:
My understanding, correct me if I'm wrong, that in the powertrain proceeding, the importer there both requested a scope ruling and argued in the scope ruling that its products were not subject merchandise.

[00:01:52] Speaker 00:
Why could you not have done the same?

[00:01:55] Speaker 04:
Sure.

[00:01:56] Speaker 04:
Yes, they do that.

[00:01:58] Speaker 00:
New Trend, is that what the importer was called?

[00:02:01] Speaker 04:
Yeah, New Trend and Paratrend were the cases that kind of worked in parallel to resolve a scope issue back in 2010 about whether these wheel hub assemblies were subject merchandise or not.

[00:02:14] Speaker 04:
That is correct, and they did do that.

[00:02:16] Speaker 04:
I would not counsel them, of course.

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I don't know what prompted them to do that.

[00:02:19] Speaker 00:
No, but I guess that seems to me, if I was right about the factual premise that

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the requester, or at least in one of those, the requester of the scope ruling was an importer who was simultaneously arguing against coverage, that is.

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And I assume that that's an available procedural mechanism.

[00:02:44] Speaker 04:
Yes, one can avail, just as that importer did themselves, of a scope proceeding, but that's not why the judge below said they didn't have jurisdiction.

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They said we didn't have jurisdiction or

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Judge Casmon didn't have jurisdiction because you didn't request an administrative review.

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So why couldn't you have done that?

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Wasn't WAC a participant in all of the annual reviews relevant here?

[00:03:11] Speaker 00:
I have a question about which ones are relevant, but let's say at least in 2007 to 2011 when these entries were made.

[00:03:20] Speaker 04:
Sure, so WAC, just some quick history here.

[00:03:23] Speaker 04:
Yes, as you pointed out, they did import bearings, true bearings, meaning TRBs, which are black and white in the scope of the order, in the 1990s and past, even beyond that.

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In the late 90s, in the year 2000, 2001, they did participate in administrative reviews and commerce issued to what's called Wanshan Group Corporation, a 0% dumping rate or margin.

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So starting in around the year 2000, 2001, their rate was zero for TRBs.

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They had no reason to believe.

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Again, I don't know what prompted PowerTrain and NewTrend, the other importers, to get scope ruling requests.

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Maybe they had an issue with customs.

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Maybe they just wanted to get clarity.

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But there certainly was no legal obligation.

[00:04:12] Speaker 01:
This is Joe Drano.

[00:04:14] Speaker 01:
But isn't that kind of what a prudent importer does when there's doubt or any question as to coverage?

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You ask for a scope ruling or you make a test entry, a test shipment and you enter a small amount of the merchandise and you see what customs is going to do.

[00:04:35] Speaker 01:
And then on that basis, you have a wide open avenue to the CIT.

[00:04:41] Speaker 04:
Sure, but I think, you know, part of this, Your Honor, is we're looking at this now with the benefit of hindsight.

[00:04:48] Speaker 01:
If we put ourselves in the mindset of it's... Well, not really, but what I just described is common practice, isn't it?

[00:04:57] Speaker 04:
It is if there's a doubt, if you have a question, sure.

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The question would be that I would ask, I mean, I know you're the one who asked the questions, not me, but rhetorically I would ask,

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Why would an importer have a doubt about their product being in scope, for example?

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And I'll answer the question, because these assemblies have TRBs in them.

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They have a hub.

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They have a seal.

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And the entire assembly seems to act as the outer ring.

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So when an importer look at that and go, gee, you know what?

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We may have a problem here.

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We're bringing in TRBs, and we don't think they're covered.

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Customers may think they're covered or commerce, so let's go get a scope, really, or let's enter a test shipment and see how that goes.

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And on that basis, we can either continue importing or we're forced to go to the CIT under 1581C.

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That's not hindsight.

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That's common practice.

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Sure.

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But again, I go back at the time.

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And again, this is a company that certainly knows TRBs.

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And I don't disagree with your factual characterization of how these products, meaning the wheel hub assemblies at issue, have some elements of being a bearing, but they also have four or five other functionalities to them that have nothing to do with being a bearing.

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And it seems to me, yes, they could have done all of that.

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There's no question they could have done all of that.

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The question that was, were they required to do all of that?

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In other words, was it unreasonable for them to say, I believe these are not TRBs.

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Certainly once commerce makes a notice and says to the world, hey, these are now in scope, I would not disagree that from that point forward.

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Isn't there an affirmative duty on importers to make informed decisions?

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It is, but the fact that they got it wrong doesn't suggest, to me, doesn't suggest that their decision that they made was unreasonable.

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They got it wrong.

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We can't deny that because we have the scope decision from both commerce and later from the powertrain court.

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We know that they got it wrong.

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The question is, was it unreasonable what they did?

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And the law seems pretty clear to me that as long as it was not the case where there was no base, like a snow ski being treated as a water ski, this is a product that had four or five other functions that had nothing to do with the bearing reducing friction function, such as converting torque, the ABS functions.

[00:07:22] Speaker 04:
And in fact, commerce itself said, in the very proceeding that said these were in scope, the issue is not clear.

[00:07:30] Speaker 00:
Mr. Rowe, okay, go ahead.

[00:07:34] Speaker 01:
Um, okay.

[00:07:35] Speaker 01:
Thank you, Judge.

[00:07:36] Speaker 01:
Um, let me ask you this question.

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Is the penalty investigation ongoing?

[00:07:42] Speaker 04:
Yes.

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Well, well, if I can be precise, the penalty, there is a penalty asserted against Wong Chung.

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There's no more investigation.

[00:07:50] Speaker 01:
Okay, but you haven't written a check.

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You haven't written a check for that.

[00:07:55] Speaker 01:
Okay.

[00:07:56] Speaker 01:
So,

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Let's say that you refuse to write a check, or you write a check.

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Wouldn't you have available to you the right to cause of action under 1581C at that point, protesting the duties that you're being forced to pay?

[00:08:12] Speaker 04:
No, it's not entirely clear at this point, Your Honor, that the government would bring a

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an action, an enforcement action, to collect the penalty and to collect the duties under 28 U.S.C.

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1588.

[00:08:26] Speaker 01:
You could protest at that time, right?

[00:08:30] Speaker 04:
No, because there wouldn't be any, there's no protest or remedy, but protesting under 19 U.S.C.

[00:08:35] Speaker 04:
1514, there's no ability to protest at that point.

[00:08:38] Speaker 01:
Under 1591C, under 1581C.

[00:08:40] Speaker 04:
1581C, that was limited to decisions of the Commerce Department, and this penalty proceeding or collection proceeding

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would not be to collect anything the commerce department is asserting is owed, it would be what customs is asserting is owed.

[00:08:56] Speaker 00:
But if the government brought an enforcement action under, what is it, 1592, then you could, among other things, at least argue against the penalty portion of this, of the demand, on the ground that what you, the course you chose, though perhaps,

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wrong, you chose reasonably.

[00:09:22] Speaker 00:
Is that right?

[00:09:25] Speaker 04:
That is certainly correct, but the Sackett case teaches that the remedy we have from dealing with customs in the penalty case, which is what you're asking about, we shouldn't have to say that the remedy we have with a different agency is a cure to the remedy with commerce.

[00:09:43] Speaker 04:
The issue here is Congress's decision and how it was interpreting WGC, which is who had determined the zero percent rate.

[00:09:50] Speaker 00:
Can I ask you a question about the case law that says 1581 I is not available where one of the earlier subsections is available here, 1581 C. Have we said that even if, for example,

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1581C was available.

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Nevertheless, if it was reasonable not to pursue the 1581C course, then 1581I is available.

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I had thought, and just tell me if I'm wrong, that our law about the relation between C and I

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does not build in a reasonableness assessment of the availability of C. If it was available, then I is not.

[00:10:52] Speaker 04:
Well, I would point, Your Honor, to, I believe, the SunTech decision where there was a question about a Chinese exporter who claimed they never got notice of an administrative review.

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So they could have participated in the review, but they did not.

[00:11:07] Speaker 04:
I believe Your Honor authored the opinion in that case stating that for jurisdictional purposes, which is all we're talking about here, they assumed that all the facts were true, that they never got served, even though they could have participated.

[00:11:23] Speaker 00:
Can I just double check one fact?

[00:11:26] Speaker 00:
When were the entries at issue here liquidated, or at least by what date were they liquidated?

[00:11:33] Speaker 04:
Sure.

[00:11:34] Speaker 04:
So the entries were made just to clarify entry date versus liquidation date.

[00:11:38] Speaker 04:
The entries at issue are from October 2007 until September 30th, 2012.

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That's what the bill is for for that time period.

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Those are the entries.

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The liquidation dates would be about 10 months after those dates.

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So the latest liquidation date would be in about 10 months from September 2012, which puts us at about July of 2013.

[00:12:00] Speaker 00:
Okay, so a bunch of these were not liquidated until, sounds like, substantially more than a year after February 21st, 2012, when the powertrain scope ruling of commerce came out.

[00:12:16] Speaker 04:
Correct, and all the entries of the ones where customs said we owed money, the specific entries they reviewed, they were all before February 2012.

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and then they would have liquidated afterwards.

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I mean, customs could have suspended liquidation here when they were doing the audit.

[00:12:30] Speaker 04:
They chose not to.

[00:12:31] Speaker 02:
Okay, counsel, why don't we save the remainder of your time for rebuttal and let's hear from Mr. Tosini.

[00:12:41] Speaker 03:
Good morning and may it please the court.

[00:12:44] Speaker 03:
I think the most important observation from the last 10 minutes is that

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The standard that the court applies when determining whether jurisdiction is available under its residual provision is whether there was a remedy under one of the earlier subsections and whether that remedy was not manifestly inadequate.

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Now, WAC has not argued that the remedy under 1581C was manifestly inadequate.

[00:13:15] Speaker 00:
The company is only arguing that... Can I just ask, just to be clear, the remedy that the CIT pointed to was not a scope ruling but participation in one of the annual administrative reviews to determine that WQ was like its affiliated corporations, independent of the Chinese government.

[00:13:39] Speaker 03:
Absolutely.

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That's the important thing to keep in mind.

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If you go back to the complaint, the case is somewhat more now into a question as to whether the importer was reasonable.

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But if you go back to the complaint, what WAC is asking for is a determination from the court that WQ, another affiliated company, was independent of Chinese government control.

[00:14:06] Speaker 03:
All that the Commerce Department did here was advise CBP that it had never actually looked at WQ itself as an exporter.

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And that's a fact that nobody can test in this case.

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And that's really important because the remedy was always there to look at WQ as an exporter for the company either to make test shipments and for Commerce to determine whether, first of all, whether that company was free of government control.

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And second, to determine

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if it were free of government control to determine the rate of dumping.

[00:14:42] Speaker 00:
Can I just add another perhaps quite minor point?

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That the CIT when discussing the administrative review remedy seemed to talk about the administrative reviews in 1994 to 2001.

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Since we're talking about entries between 2007 and 2012, isn't the relevant administrative review

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Aren't the relevant administrative reviews the ones for those years?

[00:15:13] Speaker 03:
Yes, but I don't think the trial court foreclosed those particular reviews.

[00:15:17] Speaker 03:
I think if WAC had identified WQ as an exporter in those earlier reviews or once it began exporting in, say, 2007, if the company had then asked for a review,

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company would have had an adequate remedy.

[00:15:39] Speaker 03:
Commerce would have determined whether WQ was part of the China-wide entity, and that result would have applied to all of the imports that issue in this case.

[00:15:48] Speaker 00:
Can you address the kind of doctrinal question that I asked Mr. Rohl?

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In our case law about the relation between 1581C and 1581I, is there a role for the question

[00:16:05] Speaker 00:
Even if C was available, was it reasonable for the now plaintiff in an I action to have bypassed the C remedy?

[00:16:20] Speaker 03:
No, there's no reasonableness requirement.

[00:16:22] Speaker 03:
And that would be, first of all, the court would have to look at the state of mind of the plaintiff at the time of the relevant activity, which of course would open a whole new morass.

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And second, to the extent there is any reasonableness, it would go to the second prong of the analysis, which would be whether the remedy under the alternative subsection would have been manifestly inadequate.

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And, you know, if you look at one of the footnotes in Judge Katzen's opinion,

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He noted, and nobody can test, that WAC never argued that its remedy under C would have been manifestly inadequate.

[00:17:01] Speaker 03:
It could have gotten exactly the determination that it asked for in an administrative review, that WQ is not controlled by the Chinese government.

[00:17:11] Speaker 02:
Council, can I ask, this is Sushmore, do you believe that we have to decide whether or not the CLU memo is a final agency action?

[00:17:21] Speaker 03:
No, the court doesn't need to decide that in this case because the C versus A question would dispose of the case.

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As would on the basis of rightness, the court could likewise affirm.

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But, you know, turning to that issue, there's no reversible error here in the court's determination that there was no final agency action.

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Go to our brief when we talk about the relevant cases out there.

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For example, the Corps of Engineers v. Hawks case.

[00:18:01] Speaker 03:
There's no action that altered the legal relationship between WAC and the United States because WQ had been part of the China-wide entity presumptively going back to the issuance of the order in the 1980s, this court's decision in

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makes that abundantly clear.

[00:18:22] Speaker 03:
And another important thing to look from the Sigma opinion, which moves back to the availability of a remedy under C versus A, is that just because a company, an exporter is affiliated with a company that's independent of Chinese government control, that affiliate is still presumed to be part of the China-wide entity unless it proves that it's separate from Chinese government control.

[00:18:47] Speaker 03:
Really, the C versus A question can be disposed of by a straightforward application of SIGVA here.

[00:18:55] Speaker 01:
I mean, can you... Counselor, this is... Go ahead, please.

[00:18:59] Speaker 01:
This is Judge Rand.

[00:19:01] Speaker 01:
Looking at the CLU memo, it appears to me, and tell me if I'm wrong, but it appears to me that what it does, it just provides a historical summary of the administrative reviews and the results and the participants in those

[00:19:16] Speaker 01:
in those reviews.

[00:19:17] Speaker 01:
It didn't add any new facts or subject matter.

[00:19:21] Speaker 01:
It didn't make any findings, I'll put it that way.

[00:19:24] Speaker 01:
Is that correct?

[00:19:26] Speaker 03:
That's absolutely true.

[00:19:27] Speaker 03:
It's just recounting the, you know, what happened.

[00:19:34] Speaker 00:
Okay.

[00:19:34] Speaker 00:
And can I just follow up on that?

[00:19:36] Speaker 00:
And what is the logical consequence of that characterization?

[00:19:44] Speaker 00:
for the question of final agency action or its cousin rightness?

[00:19:52] Speaker 03:
Well, it never altered the legal relationship of the parties because WQ, the exporter, was always part of the China-wide entity, going back to the last time that one of the Wangsheng Group companies was reviewed.

[00:20:12] Speaker 00:
But I guess I'd understood WAC's argument to be that when commerce answered the question by recounting the, I think, undisputed history, at that point CBP was bound to determine that WQ was subject to a 92% rate.

[00:20:41] Speaker 03:
I wouldn't say that it was bound to make that determination.

[00:20:49] Speaker 03:
Turning to the ripeness issue, assuming that the current proceeding before CBP ripens into a referral to the Justice Department and we file a complaint against the importer, the importer

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has a right to a trial de novo.

[00:21:08] Speaker 03:
It's not going to have a right to prove that the exporter was free of Chinese government control, but it will have the opportunity to prove that the Commerce Department was wrong and that WQ actually was reviewed.

[00:21:21] Speaker 03:
If it were to do that, it would be a very different case.

[00:21:24] Speaker 03:
But no, and that's the sort of evidence that is available at the Commerce Department for parties who want it, and it's also available

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certainly to affiliated companies of the plaintiff in this case.

[00:21:39] Speaker 02:
Counsel, would it make any difference to your case if I viewed WAC's challenge to Commerce's clarification of prior ambiguous administrative rulings rather than just challenging entitlement to WGC's right?

[00:21:59] Speaker 03:
I don't think it would

[00:22:01] Speaker 03:
it would make a difference here because you need to look at the true nature of a determination to assess jurisdiction and there was no final determination that really came out of it.

[00:22:14] Speaker 03:
If you look at the CLU memo itself, all it really says is we reviewed

[00:22:20] Speaker 03:
exports that were produced by companies A and B and C, we did not look at.

[00:22:24] Speaker 02:
Isn't that going beyond what we would normally do in a jurisdictional assessment?

[00:22:29] Speaker 02:
Isn't that sort of better for the CFC to do in the first instance?

[00:22:37] Speaker 03:
Well, the trial court did look at the memo and the plaintiff here was certainly free to provide any evidence

[00:22:49] Speaker 03:
any jurisdictional facts that it had in its possession, but it did not.

[00:22:55] Speaker 03:
So yes, that is the sort of thing, determining jurisdictional facts that the trial court should generally do, and the trial court did that based on the record made before that court.

[00:23:08] Speaker 00:
Can I ask you, in a 1592 enforcement action, I think you said that

[00:23:16] Speaker 00:
Well, I'm trying to figure out what issues would be litigable by WAC.

[00:23:23] Speaker 00:
So would the issue of WQ's independence from the Chinese government be litigable?

[00:23:31] Speaker 00:
I think you said the answer is no, right?

[00:23:34] Speaker 03:
We believe the answer is no.

[00:23:36] Speaker 00:
And I don't think, I think I heard Mr. Rohl say that he views the question of

[00:23:45] Speaker 00:
generation two and three's coverage by the anti-dumping duty order as settled so that that doesn't actually seem to be an issue anymore.

[00:23:55] Speaker 00:
But one aspect might be, and I want to know whether you think this is litigable, and that is whether the February 21, 2012 scope ruling in the powertrain decision would

[00:24:08] Speaker 00:
could be applied or whether it would be inconsistent with 351-225 to apply it to entries that were made before that date without a suspension of liquidation.

[00:24:24] Speaker 03:
And no, we don't think that the regulation would cause any issues.

[00:24:29] Speaker 00:
What... But could they litigate that question in the 1592 proceeding?

[00:24:37] Speaker 00:
I think they could litigate it in the context of reasonableness.

[00:24:40] Speaker 03:
And if the importer demonstrates that it acted reasonably, that's a complete defense.

[00:24:48] Speaker 03:
It's not only a defense to penalties, as Your Honor noted.

[00:24:52] Speaker 03:
It's a complete defense to lost revenue as well.

[00:24:56] Speaker 03:
Ah, OK.

[00:24:57] Speaker 03:
And I didn't know.

[00:24:58] Speaker 03:
Thank you.

[00:24:59] Speaker 03:
So if the under 19 USC subsection, 1592D.

[00:25:08] Speaker 03:
So that's where the whole question of the application of the regulation might go into force.

[00:25:17] Speaker 03:
If the importer were to demonstrate that it acted reasonably at the time because it, for some particular reason, then it would have a complete defense.

[00:25:29] Speaker 03:
On the other hand, products in this case, commerce had previously determined that they fell under the unambiguous language of the

[00:25:37] Speaker 03:
anti-dumping duty order, and those are countervailing factual issues that the trial court would have to determine in the first instance.

[00:25:46] Speaker 02:
Okay, counsel, I think we have your argument.

[00:25:49] Speaker 02:
Mr. Rohl, you have a few minutes of rebuttal.

[00:25:52] Speaker 04:
Thank you.

[00:25:53] Speaker 04:
Yes, thank you.

[00:25:54] Speaker 04:
Thank you.

[00:25:56] Speaker 04:
With regard to 1581C jurisdiction, before I comment on the final agency action discussion that was just taking place,

[00:26:05] Speaker 04:
I'm still stuck how we get past the fact that in 2007, for example, the beginning of the audit period, the merchandise at issue was not scope merchandise, or subject merchandise, rather.

[00:26:18] Speaker 04:
It would have been impossible to request an administrative review for 2007 or 2008 or 2009.

[00:26:25] Speaker 04:
Yes, to Judge Raina's question, could they have asked for one?

[00:26:29] Speaker 04:
Could they have done it?

[00:26:30] Speaker 04:
With hindsight, should they have done it?

[00:26:32] Speaker 04:
We can say with hindsight, yes, they should have.

[00:26:34] Speaker 04:
the questions were they legally obligated to, was there anything wrong legally with the way they declared their entries?

[00:26:39] Speaker 04:
And the answer to that has to be no.

[00:26:41] Speaker 04:
There's no legal requirement until the scope ruling comes out to treat your merchandise as being subject merchandise.

[00:26:48] Speaker 04:
So if you don't have subject merchandise, we could not have done a review for the 2007, eight, nine, 10, 11 time periods.

[00:26:55] Speaker 04:
It just cannot be.

[00:26:58] Speaker 04:
Turning to, excuse me, turning to the question about final agency action,

[00:27:04] Speaker 04:
and the May memo that we're challenging, the May 2016 memo, the exhibit, if you have that, that's at Joint Appendix page 64.

[00:27:13] Speaker 04:
I'm referring to, sorry for my voice, it's failing me now.

[00:27:19] Speaker 04:
It talks about this note that was put into ACE, right?

[00:27:22] Speaker 04:
If one were to search, excuse me, if the court were to search, of course it's our job to educate the court, but I'm saying what I'm about to say can be confirmed.

[00:27:31] Speaker 04:
Every Federal Register notice that Commerce ever put out in the administrative reviews involving our client involved the rate for WGC, Wanchong Group Corporation.

[00:27:40] Speaker 04:
Why was it necessary in 2013 to put this note in ACE and to make a determination, if you read the language of the note, it says this information, the last sentence, this information was determined based on the questionnaire response.

[00:27:53] Speaker 04:
Commerce very much defined in this May memo who WGC is, what they consider it to be.

[00:28:01] Speaker 04:
The reason we believe we have jurisdiction, and we may be wrong at the end of this on the merits, it's possible, we don't believe we are, but the court has to examine the substance of what Commerce did here.

[00:28:11] Speaker 04:
Was it really just reporting the news where they said, hey, in these old reviews, we determine rate of X for this company and Y for the other company?

[00:28:19] Speaker 04:
Or was Commerce interpreting to say WGC means this, right?

[00:28:25] Speaker 04:
On Joint Appendix page 60, which is part of the main memo, they talk about in the

[00:28:30] Speaker 04:
last full kind of big paragraph, last sentence says, none of these documents clearly identify WQ as being a manufacturer or exporter.

[00:28:39] Speaker 04:
Again, clearly.

[00:28:40] Speaker 04:
How clear was it?

[00:28:41] Speaker 04:
That's something for the court to decide.

[00:28:43] Speaker 04:
Again, maybe the court, when it reviews the record in this case, which is all we're asking for, will decide that, yes, that was clear.

[00:28:49] Speaker 04:
I seem out of time.

[00:28:50] Speaker 04:
If I could just make one last quick point, and then I'll wrap it up.

[00:28:54] Speaker 04:
In that same paragraph,

[00:28:56] Speaker 04:
Commerce itself says that in the review period for 98 to 99, WQ, which is the company we're saying should get the zero rate as well, was, and this is a quote, a stock company that handles all of the manufacturing of the group.

[00:29:09] Speaker 04:
So to say there's no evidence on the record that WQ was the producer of the merchandise is simply false and contradicted by Commerce's own document.

[00:29:17] Speaker 04:
I realize I'm out of time, and I thank you for listening.

[00:29:20] Speaker 02:
I thank both counsels.

[00:29:22] Speaker 02:
This case is taken under submission.