[00:00:00] Speaker 03: Our next case for argument is 21-2172, California Steel Industries versus the United States. [00:00:09] Speaker 03: Is it Ransdell? [00:00:11] Speaker 03: Yes. [00:00:12] Speaker 03: Mr. Ransdell, please proceed. [00:00:14] Speaker 05: Thank you, Your Honor. [00:00:14] Speaker 05: Good morning. [00:00:15] Speaker 05: You may please the court. [00:00:16] Speaker 05: This case concerns the Commerce Department's administration of the product exclusion process embedded in the Section 232 steel tariff regime, reflecting the overarching goal of the section. [00:00:25] Speaker 04: Before you get to the legal issues you wanted to discuss, can you just tell me what the practical effect of what you want is? [00:00:33] Speaker 04: Is it just that you want to be able to appeal and file cert petitions? [00:00:37] Speaker 05: Yes, Your Honor. [00:00:38] Speaker 05: No, I'm glad you raised that. [00:00:41] Speaker 05: And this was certainly a focus for the CIT as well. [00:00:44] Speaker 05: So the practical impact here that we're looking at is, in the first instance, you'll notice that we filed a 28-J letter last Friday. [00:00:52] Speaker 05: And the CIT sort of conceived of this as if the ship has sailed. [00:00:56] Speaker 05: We're just dealing with past entries. [00:00:58] Speaker 05: And therefore, our interest has sort of lapsed, in a sense. [00:01:01] Speaker 05: But the settlement in Interpipe shows, if you look at the last page of that 28J submission, that it's dealing with entries as recent as October 2021. [00:01:12] Speaker 05: So that has a current impact on the market because these entries could still be sitting in inventory, still be awaiting sale, and that has a current impact on the marketplace and therefore [00:01:21] Speaker 05: There's that practical effect. [00:01:23] Speaker 05: And that's absolutely possible here in terms of Rule 24. [00:01:27] Speaker 05: And we think the CIT essentially resolved the question of what relief might be possible prematurely. [00:01:35] Speaker 05: And in addition to that, there's the sort of question of the administrative determination itself. [00:01:40] Speaker 05: And so here we have administrative determinations by commerce that our products are domestically available and therefore should be kept within the protective ambit of the Section 232 tariffs. [00:01:51] Speaker 05: And so we have those in hand any time anybody seeks to request an exclusion from the Department of Commerce in the future. [00:01:58] Speaker 05: It is a regulatory factor. [00:02:00] Speaker 05: We can take that, place that before the department, and it's something they're going to consider in adjudicating these. [00:02:05] Speaker 05: And it helps to keep in mind that they're dealing with hundreds of thousands of questions. [00:02:09] Speaker 04: I understand this is a very, at least to my ears, convoluted answer as to why does it matter whether you intervene or just submit amicus briefs? [00:02:20] Speaker 05: Oh, that's a great question, Your Honor. [00:02:21] Speaker 05: So really, the crux of the matter is we're dealing with confidential administrative records here. [00:02:27] Speaker 05: And as amicus, we don't have access to that confidential record. [00:02:30] Speaker 05: So the crux of the substantive dispute before the court. [00:02:34] Speaker 04: When you participate at the administrative level, what do you have access to? [00:02:39] Speaker 05: So at the administrative level, we submitted confidential information that we think supports commerce's determination. [00:02:46] Speaker 05: So we wouldn't have access to what confidential information, I believe, that the plaintiffs would have submitted. [00:02:52] Speaker 05: But since commerce went in our direction, [00:02:55] Speaker 05: The critical question for us is, is the court going to be able to look at that administrative record that we submitted, specifically our confidential information, and find support for the determination that the products are domestically available? [00:03:10] Speaker 05: And so as amicus, we're sort of on the outside looking in because [00:03:14] Speaker 05: There's 800 administrative records, one for each exclusion. [00:03:18] Speaker 05: Commerce has tried to compile these and provide them to the court. [00:03:21] Speaker 05: But we can't see what commerce is telling the court, look, here's all the information we have in front of us administratively. [00:03:28] Speaker 04: What gives you a legal right to do that? [00:03:30] Speaker 04: Even at the administrative level, all you have is a right to participate. [00:03:35] Speaker 04: You don't have a right to challenge the other evidence. [00:03:38] Speaker 04: You don't get to see that evidence, do you? [00:03:40] Speaker 05: your honor no you're asking for even more rights than commerce has given you at the administrative level well your honor to clarify we're not asking to challenge the evidence that the plaintiffs have provided we're asking to ensure that [00:03:54] Speaker 05: that before the court is all of the evidence that we provided administratively, because we think that is what supports Congress's determination. [00:04:01] Speaker 04: You can't submit that in an amicus brief? [00:04:02] Speaker 05: I'm sorry? [00:04:03] Speaker 04: You can't submit that in an amicus brief? [00:04:05] Speaker 05: No, Your Honor, because we can't view the confidential record, because we're not parties to the case. [00:04:10] Speaker 04: So we don't view the confidential information you gave them. [00:04:14] Speaker 04: We, yes. [00:04:15] Speaker 04: If that's all you're concerned about is making sure that the court knows what information you gave commerce, is there anything that prevents you from supplying that to the court in an amicus brief, even if it's confidential? [00:04:28] Speaker 05: Well, we are not currently under the judicial protective order. [00:04:31] Speaker 05: So that would require a modification to that as non-parties. [00:04:34] Speaker 05: And I'm not sure if that's even a possibility. [00:04:37] Speaker 04: But it's sort of, it's- It's your information. [00:04:41] Speaker 04: If you want to give it to the court, you can give it to the court. [00:04:45] Speaker 05: Certainly, but we don't know that it's not sufficient necessarily that we can provide our information to the court. [00:04:52] Speaker 04: It sounds to me like you want an alteration of the statutory structure here to allow you to be a party to the case. [00:05:00] Speaker 04: And when Congress wants these domestic industries to be a part of the case, like they do in the anti-dumping and counter-railing duty proceedings, they specifically provide statutory authority. [00:05:11] Speaker 04: You don't have any of that, do you? [00:05:13] Speaker 05: No, Your Honor. [00:05:14] Speaker 05: Section 232 itself, it's a very broad statute. [00:05:18] Speaker 05: It doesn't spell out this sort of thing. [00:05:19] Speaker 04: When Commerce implemented this, if they had wanted to, they could have said, you don't have the right to participate at all, right? [00:05:27] Speaker 04: Well, Your Honor, I'm not sure about that because the presidential proclamation here... No, 1 in 232 would require commerce to give you the right to participate. [00:05:37] Speaker 05: Oh, in section 232 itself, at this stage for the exclusion process, I'm not sure there's anything in the text of the statute that would stick to this. [00:05:46] Speaker 04: Right. [00:05:46] Speaker 04: So if the president, when it issues some kind of program like this, and he says, look, I'm going to establish these tariffs, Commerce goes set up a program, that doesn't mean you have to be allowed to participate, does it? [00:06:03] Speaker 04: You would have to look at the text of the presidential proclamation and at what commerce says. [00:06:09] Speaker 05: Right. [00:06:10] Speaker 05: And as a practical matter. [00:06:11] Speaker 04: And so if they give you the right to participate at the administrative level, you get to. [00:06:14] Speaker 04: And if they don't, you don't. [00:06:18] Speaker 05: Yes, Your Honor, we would agree. [00:06:20] Speaker 05: But we'd also observe that the substantive question that Congress is forced to decide by the terms of the presidential proclamation. [00:06:28] Speaker 04: Let me just ask you this hypothetical quickly. [00:06:30] Speaker 04: If all of this were all the same, the presidential proclamation, the ability of certain parts of the domestic industry to be excluded from this order were there, but you weren't allowed to participate at all, would that be consistent with 232? [00:06:46] Speaker 05: Well, that's a great question, because the substantive question Commerce is seeking to determine... I don't really care whether my question is great or not. [00:06:53] Speaker 04: I want the answer. [00:06:54] Speaker 04: Is it consistent with 232 for Commerce to set up a program that excludes your participation altogether? [00:07:03] Speaker 05: We would say not necessarily, because Commerce... What in 232 prohibits it? [00:07:08] Speaker 05: Well, 232 delegates the authority to the president to determine the structure. [00:07:14] Speaker 04: OK, but don't quibble with me about who is excluding you. [00:07:17] Speaker 04: Let's just assume the president and commerce excluded you from participating. [00:07:21] Speaker 04: You were not allowed to participate in this proceeding whatsoever, even though it was intended in part for your benefit. [00:07:28] Speaker 04: That's legal, isn't it? [00:07:29] Speaker 05: If the president had done so, yes, your honor. [00:07:31] Speaker 04: So do you think the president gave you a right that extends to participate in legal proceedings at the CIT? [00:07:38] Speaker 05: We think the president set up a tariff section that was intended specifically to benefit us. [00:07:46] Speaker 04: And it directed commerce to consider specifically whether the products are- Where in the presidential proclamation does it suggest that you would be given the right to challenge decisions of, [00:07:55] Speaker 04: the administrative agency or participate in their defense at the CIT? [00:08:01] Speaker 05: Well, yes. [00:08:03] Speaker 05: OK. [00:08:04] Speaker 05: So the presidential proclamation itself does not address appeals of exclusion determinations at all. [00:08:10] Speaker 05: Not for us, not for the other parties. [00:08:11] Speaker 04: What did it say with regard to your participation? [00:08:14] Speaker 05: So it directs commerce to consider domestic availability. [00:08:17] Speaker 05: It does not specifically address our participation. [00:08:20] Speaker 04: So that doesn't even require you to participate. [00:08:22] Speaker 04: So the presidential proclamation gives you no legal rights whatsoever. [00:08:26] Speaker 05: Well, Your Honor, we wouldn't agree that it gives us no legal rights because- Well, it doesn't mention you. [00:08:31] Speaker 04: It doesn't mention you being allowed to participate at all. [00:08:34] Speaker 04: So how can that give you legal rights? [00:08:36] Speaker 05: Well, it does structure these tariffs for our benefit. [00:08:39] Speaker 04: And so our understanding would be that if Congress had- That's an economic benefit that the president is giving to you as a company. [00:08:46] Speaker 04: It's not a legal right to participate in any administrative or legal proceedings. [00:08:52] Speaker 04: That's correct, right? [00:08:53] Speaker 04: Yes, Your Honor. [00:08:54] Speaker ?: OK. [00:08:55] Speaker 04: So if you don't have a legal right to participate in proceedings, then why do you have a right to intervene? [00:09:04] Speaker 05: Because even if we didn't have a legal right to participate, we believe that in that scenario, we would have a sort of a mirror APA standing to bring a claim if, for example, Congress had rendered a determination and it had said we had submitted factual information establishing our ability to produce this. [00:09:23] Speaker 05: And Congress said, no, we're going to allow this exclusion because no party submitted evidence. [00:09:29] Speaker 05: And in this hypothetical, we had. [00:09:31] Speaker 04: So you think you could have appealed from Congress's [00:09:34] Speaker 04: decision to grant exclusion requests to the CIT? [00:09:42] Speaker 05: Yes. [00:09:43] Speaker 05: If commerce had done so on an arbitrary basis of some sort, I think the CIT statute giving a jurisdiction to review the administration of tariffs, and here we have a tariff program, we would have had a mere APA claim to say, look, this was arbitrary because you didn't consider our evidence, and your decision says as much. [00:10:03] Speaker 04: What in the regulations setting up this program, or there's certainly nothing in 232, right? [00:10:11] Speaker 04: What in the regulations setting up this program suggested that you would have the right to appeal? [00:10:17] Speaker 05: So the regulations, they're explicit that they don't address the right to appeal for any party. [00:10:22] Speaker 04: And so where is your statutory authority to appeal? [00:10:27] Speaker 05: So our statutory authority to appeal, we believe, would be grounded in the APA, just like these claims here. [00:10:33] Speaker 04: Well, the APA doesn't grant jurisdiction. [00:10:35] Speaker 04: What's the jurisdiction for you to appeal to the CIT? [00:10:38] Speaker 05: Oh, certainly. [00:10:38] Speaker 05: It would be 1581 ID. [00:10:42] Speaker 05: What does that say? [00:10:44] Speaker 05: It concerns, I'm sorry, yes, Your Honor. [00:10:47] Speaker 05: It grants the Court of International Trade jurisdiction to hear claims concerning the administration or enforcement of tariffs not for the purpose of raising revenue, which is the Section 232 tariffs are an example of that, Your Honor. [00:11:02] Speaker 04: And you think that extends to parties that have no involvement with the payment of tariffs? [00:11:08] Speaker 05: So yes, Your Honor, we would say that that does in this circumstance because we are specifically identified as the intended beneficiary of these tariffs. [00:11:17] Speaker 05: So therefore, because in the hypothetical where we're not identified as a beneficiary, we're just sort of on the outside looking in. [00:11:25] Speaker 05: And that situation, I understand. [00:11:28] Speaker 05: We don't have a role to play there. [00:11:32] Speaker 05: But here, where we're specifically identified in the proclamation creating these tariffs as the intended beneficiary, then we're losing something if those tariffs are improperly administered, either arbitrarily or otherwise. [00:11:46] Speaker 05: And so on that basis, we think we would have an injury to claim at the court. [00:11:52] Speaker 05: And therefore, we'd be able to bring this to their attention. [00:11:55] Speaker 03: You're into rebuttal time. [00:11:56] Speaker 03: Would you like to save it? [00:11:59] Speaker 05: Yes, Your Honor, if there's no further questions, I will. [00:12:02] Speaker 03: OK. [00:12:03] Speaker 03: Mr. Litvak. [00:12:05] Speaker 01: May it please the court. [00:12:06] Speaker 01: My name is Sandy Litvak. [00:12:07] Speaker 01: I'm of the law firm of Chavis Lindsay. [00:12:10] Speaker 01: And today, I'm representing all the plaintiff faculty on this appeal. [00:12:15] Speaker 01: We've answered in our brief all their arguments, and I'm going to stand on that. [00:12:20] Speaker 01: But I'd like today, if I may, with the Court's permission, to just focus on two things that I think are disposable. [00:12:25] Speaker 01: One is, what is the real interest that's required by 24A? [00:12:29] Speaker 01: And two, is that interest adequately protected? [00:12:35] Speaker 01: The answer to the second is yes, and I'll tell you what I think the answer to the first is. [00:12:41] Speaker 01: In the Court of International Trade, but unlike here, [00:12:46] Speaker 01: They said their interest was, and it is, an economic one. [00:12:51] Speaker 01: They've conjured up a scenario in which they could be adversely impacted economically. [00:12:58] Speaker 01: OK, they said that. [00:13:00] Speaker 01: Now, that didn't work for a reason, I'll tell you, and it doesn't work here. [00:13:03] Speaker 04: So I get you want to have to give your general argument. [00:13:06] Speaker 04: I'm curious about what your response to his last argument that under that terror provision under I, they would get to challenge this. [00:13:16] Speaker 04: I mean, that seems to be the answer to that. [00:13:19] Speaker 01: Yeah, I think he spoke or is in error. [00:13:22] Speaker 01: Let me put it that way. [00:13:23] Speaker 01: I mean, this is why I think that's wrong. [00:13:28] Speaker 01: What they would have to do is claim they're in a grief party under the APA. [00:13:34] Speaker 01: But to do that, they've got the same problem they've got here. [00:13:36] Speaker 01: You have to have a direct, immediate impact. [00:13:39] Speaker 01: And that's what they don't have. [00:13:41] Speaker 01: They're a bystander. [00:13:42] Speaker 01: They have a rooting interest, as we put it in our grief. [00:13:44] Speaker 01: Those are my words. [00:13:45] Speaker 00: Let me interrupt you to make sure I have this straight. [00:13:50] Speaker 00: You say they're not in a grief party. [00:13:52] Speaker 00: However, injury was found to a domestic industry [00:13:57] Speaker 00: That's them. [00:13:58] Speaker 00: So why are they not an agreed party? [00:14:01] Speaker 01: Well, if the exclusion had been granted, which is the hypothetical under which the agreed party would ever arrive, if they had been granted, commerce would have made a determination [00:14:14] Speaker 01: It doesn't directly affect them. [00:14:16] Speaker 01: It's not saying they can't do something. [00:14:19] Speaker 01: It is just simply saying that the tariffs will not apply to these particular shipments. [00:14:26] Speaker 01: It might apply to others. [00:14:27] Speaker 01: It might be limited in quantity. [00:14:29] Speaker 01: We're talking about a hypothetical in which commerce has made an industry-wide decision. [00:14:34] Speaker 01: They would not have any special standing. [00:14:36] Speaker 02: No future imports could be covered by the exclusion. [00:14:39] Speaker 02: So any relief granted on this remand would not directly impact their economic interest, correct? [00:14:46] Speaker 01: No. [00:14:46] Speaker 01: At this point, no. [00:14:47] Speaker 01: Absolutely not. [00:14:48] Speaker 01: Certainly not directly. [00:14:49] Speaker 02: Actually, no. [00:14:50] Speaker 02: You disagree with me? [00:14:51] Speaker 02: I said no future imports could be covered by the exclusion. [00:14:54] Speaker 02: So on this remand. [00:14:55] Speaker 01: Oh, yes. [00:14:56] Speaker 01: I agree with you. [00:14:58] Speaker 01: Yes. [00:14:58] Speaker 01: I misheard what you said. [00:14:59] Speaker 01: Yes. [00:15:01] Speaker 01: The key here, to come back to the question you asked, [00:15:04] Speaker 04: If you don't have to pay tariffs and commerce says you don't have to pay tariffs because you've satisfied this. [00:15:17] Speaker 04: Well, I guess you've said that doesn't directly impact them. [00:15:20] Speaker 04: That's what they would have to show to challenge that exclusion. [00:15:24] Speaker 04: Not just generally, this might have some downstream impact on their business. [00:15:30] Speaker 01: That's exactly the point. [00:15:31] Speaker 01: That is precisely the point. [00:15:33] Speaker 01: And it's precisely the problem here too. [00:15:36] Speaker 01: Their argument is we might be economically impacted. [00:15:39] Speaker 01: You know, this is four square. [00:15:42] Speaker 04: Maybe the government has an answer. [00:15:46] Speaker 04: You may know this, too, if you do this stuff. [00:15:48] Speaker 04: Isn't that I for whatever provision he's talking about directed at people who have to pay tariffs and that they can challenge it under I for some reason if it doesn't go through the other parts of either A or whatever? [00:16:03] Speaker 01: I'm going to defer to the government on that. [00:16:05] Speaker 04: I'm not particularly familiar with that specific subpart of I either, but it seems to me that it relates to people who have been told they have to pay tariffs or at a higher rate than they think they should, not at an industry that is protected by those tariffs. [00:16:22] Speaker 01: I'm not an expert on it, but yes, it's direct. [00:16:26] Speaker 01: Look, the tariff is a penalty. [00:16:28] Speaker 01: And again, as I say, it comes back to American [00:16:30] Speaker 01: merchant marines. [00:16:31] Speaker 01: It's exactly the same situation there that this court looked at. [00:16:35] Speaker 01: There, Aeron objected to one of its competitors getting a subsidy. [00:16:41] Speaker 01: This is the flip side. [00:16:43] Speaker 01: This is the tariff being imposed. [00:16:44] Speaker 01: Instead of the subsidy, it's the tariff. [00:16:47] Speaker 01: In both cases, American and here, [00:16:51] Speaker 01: The objecting party, the competitor, is saying, hey, look, that might hurt me. [00:16:56] Speaker 01: I may lose sales in this case, or I may lose profits in this case. [00:17:00] Speaker 01: And what the court said, and rightly so, is that's not enough. [00:17:04] Speaker 01: It's got to be direct and immediate. [00:17:06] Speaker 01: And that's what Judge Baker said. [00:17:08] Speaker 01: He had it absolutely right. [00:17:10] Speaker 01: Now, I think, obviously, which is the reason for the lawsuit, that Congress got it wrong. [00:17:15] Speaker 01: But that's what the judge is going to decide. [00:17:18] Speaker 01: I want to comment on something said that you focused upon, which is the record. [00:17:22] Speaker 01: The record is before the court. [00:17:25] Speaker 01: First of all, they can tell the court whatever they want as amicus. [00:17:29] Speaker 01: He's not going to preclude them. [00:17:29] Speaker 01: Indeed, he keeps inviting them to file amicus papers if they like. [00:17:34] Speaker 01: Secondly, secondly, beyond that, the fact is the record is what the Commerce Department looked at and decided upon. [00:17:44] Speaker 01: The record is set. [00:17:47] Speaker 01: It's not what they like. [00:17:48] Speaker 01: It's not what they think. [00:17:49] Speaker 01: It's what the commerce do. [00:17:51] Speaker 04: And the reason- And they can see all non-confidential parts of this record, right? [00:17:55] Speaker 04: Yeah. [00:17:55] Speaker 04: Or is the entire record designated as confidential? [00:17:58] Speaker 01: The record is, no. [00:18:00] Speaker 01: The entire record is not confidential. [00:18:01] Speaker 01: Portions of it are confidential. [00:18:05] Speaker 01: And they've designated some of their stuff as confidential. [00:18:08] Speaker 01: But the question at the end of the day [00:18:11] Speaker 01: is why did Commerce rely upon it? [00:18:13] Speaker 01: By the way, when Commerce asked for a voluntary remand, they cited Judge Kelly's decision in a JSW case in which I was involved, because what Judge Kelly said, and the reason they've asked for the remand, is she said, you, Commerce, have never explained how you got to this decision. [00:18:33] Speaker 01: It wasn't a question about is it right or wrong. [00:18:35] Speaker 01: She never got to that. [00:18:36] Speaker 01: She was just saying, there's nothing before me that I can decipher as to why or how you got that. [00:18:41] Speaker 01: So she sent it back. [00:18:42] Speaker 01: Commerce or the Department of Justice now looks at it and says, well, you know, maybe there's some merit to that. [00:18:47] Speaker 01: Maybe we better go back, look at it again, maybe come to the same decision, but write a better decision, or maybe come to a different decision and decide that the plaintiffs are right. [00:18:58] Speaker 01: All of that abides. [00:18:59] Speaker 01: All of that further suggests the last point I want to make within my remaining three minutes, which is this, like Wolfson, is a case where it is perfectly clear the government's interests and their interests are totally aligned. [00:19:14] Speaker 01: They both want the commerce decision to be upheld. [00:19:18] Speaker 01: It's just that simple. [00:19:20] Speaker 01: They have different motives. [00:19:21] Speaker 01: The government wants it upheld because it believes it's correct in accordance with the APA. [00:19:26] Speaker 01: They want it upheld, maybe for that, but more importantly, because they think they have an economic interest. [00:19:32] Speaker 01: But the end result is the same. [00:19:35] Speaker 01: Their interests are perfectly aligned, and that leaves me in my last two minutes to one point. [00:19:40] Speaker 01: The reason they want it, and you ask, well, why wouldn't the MECA satisfy you? [00:19:50] Speaker 01: I don't want to attribute bad motives, but the thing is clear, they don't like the fact that we settled. [00:19:56] Speaker 01: They don't like the fact that we've gotten back some tariff money. [00:20:00] Speaker 01: Now, put aside the fact that that doesn't impact them. [00:20:03] Speaker 01: They don't want it. [00:20:05] Speaker 01: But the fact that they don't want it isn't sufficient to grant intervention. [00:20:11] Speaker 01: Settlements are a good thing, not a bad thing. [00:20:13] Speaker 01: The government has looked at its case. [00:20:15] Speaker 01: The plaintiffs have looked at its case. [00:20:18] Speaker 01: And each side has decided, you know what? [00:20:21] Speaker 01: We better not risk the court decision. [00:20:22] Speaker 01: Let's resolve it. [00:20:24] Speaker 01: They want to get in the middle of that. [00:20:25] Speaker 04: Can I just ask you, even if they were allowed to intervene, [00:20:28] Speaker 04: Could they stop the government from settling? [00:20:30] Speaker 01: No, they can't stop them, but if you excuse the vernacular, they can muck up the process. [00:20:35] Speaker 04: Sure. [00:20:36] Speaker 01: And that's what they would do. [00:20:38] Speaker 01: Because short of that, what's the difference? [00:20:40] Speaker 01: What do they want in it? [00:20:41] Speaker 04: They can't do anything. [00:20:43] Speaker 04: I understand that. [00:20:44] Speaker 04: They can muck up the process now if they want to. [00:20:47] Speaker 04: It doesn't have to be through the court proceeding. [00:20:49] Speaker 04: They can raise it through the political people at Commerce. [00:20:52] Speaker 04: And you don't complain to them that this exclusion, you shouldn't have granted it, right? [00:20:57] Speaker 01: Yeah, they can do that. [00:20:57] Speaker 01: But the Department of Justice is involved. [00:20:59] Speaker 01: And the Department of Justice is making the decisions. [00:21:02] Speaker 01: And they're making the decisions based upon their assessment of the merits of the lawsuit. [00:21:07] Speaker 01: I'm comfortable with them making that decision. [00:21:08] Speaker 01: Sure, but they're going to listen to Commerce. [00:21:10] Speaker 01: Of course they are. [00:21:11] Speaker 04: It's their client. [00:21:12] Speaker 04: It's their client. [00:21:14] Speaker 01: Of course they're going to listen. [00:21:15] Speaker 04: But at the end of the day... There's no way that commerce is going to shut out the domestic industry if they want to be heard. [00:21:22] Speaker 01: They will be heard. [00:21:23] Speaker 01: There's a process to be heard. [00:21:25] Speaker 01: I've spent enough time with the Department of Justice to have confidence. [00:21:27] Speaker 01: They will make a judgment based on the merits. [00:21:30] Speaker 01: They will decide whether the risk of losing the lawsuit is sufficiently great that they ought to settle with us. [00:21:37] Speaker 01: They have decided that in a variety of cases. [00:21:39] Speaker 01: And by the way, there's a variety of cases where they haven't decided that. [00:21:43] Speaker 01: They haven't settled it for whatever reason. [00:21:45] Speaker 01: CSI is one of them. [00:21:47] Speaker 01: But I've also settled for JSW and other clients. [00:21:50] Speaker 01: So the government looks at the merits. [00:21:54] Speaker 01: Their interests are absolutely protected by the United States, illegitimate interests. [00:22:00] Speaker 01: Thank you, Your Honor. [00:22:01] Speaker 03: Thank you, Mr. Litvak. [00:22:05] Speaker 03: Ms. [00:22:05] Speaker 03: Mato? [00:22:08] Speaker 06: Good afternoon, Your Honors. [00:22:09] Speaker 06: Anne Motto on behalf of the United States. [00:22:11] Speaker 06: I will just address a few issues so as not to be repetitive with my colleague, Mr. Litvak. [00:22:17] Speaker 06: We do agree that the interveners have not shown that for the proposal. [00:22:21] Speaker 04: Before you get on to what you really want to talk about, can you just answer this? [00:22:25] Speaker 04: I know it's a late-turn question that you may not know, but is this subpart of I something that even conceivably applies to the domestic, this specific part of the domestic industry here? [00:22:39] Speaker 06: No. [00:22:40] Speaker 06: So section 1581 I, 1581 in general, is just a jurisdictional statute. [00:22:45] Speaker 06: It does not supply a cause of action. [00:22:47] Speaker 06: 1581 I is a residual grant of jurisdiction that if A through H doesn't cover it, I is kind of that catch-all provision. [00:22:55] Speaker 06: Here, the substantive cause of action under I is the APA. [00:23:00] Speaker 06: The APA governs the claims in I cases. [00:23:05] Speaker 06: Here, the proposed intervenors don't have an APA claim because they were successful before Congress. [00:23:10] Speaker 06: So they don't have an APA claim. [00:23:12] Speaker 04: So that would not be. [00:23:12] Speaker 04: Do you think they could have filed an APA claim if they were not successful? [00:23:17] Speaker 04: Well, these people, if you had given them the exclusion at commerce to the people seeking it, [00:23:28] Speaker 04: And I'm a little confused because it doesn't sound like they're actually an official party to the administrative proceeding. [00:23:35] Speaker 04: They're just allowed to comment. [00:23:38] Speaker 04: But either way, do you think that they could file an APA challenge to commerce as exclusion decision if commerce granted the relief accepted under that I provision? [00:23:51] Speaker 06: I don't think so. [00:23:52] Speaker 06: I think they would have a standing issue. [00:23:54] Speaker 06: Because again, I don't think, when we're looking at intervention, for example, we're looking to see on whether, well, they'd have a standing issue because if the exclusion requests were granted, and then the, because we're talking about if it was granted, right? [00:24:12] Speaker 06: If they were granted and they were allowed to import those products, [00:24:16] Speaker 06: Even if they sued, they would still, again, they'd have a problem showing that a judgment in this case would directly impact them. [00:24:22] Speaker 06: Because all that would, again, it would affect the pockets of the other party. [00:24:26] Speaker 02: We don't have to decide any of this because they won't. [00:24:29] Speaker 06: Correct. [00:24:30] Speaker 06: But I do think in that situation, they'd have a hard time, again, showing. [00:24:34] Speaker 06: Yes. [00:24:35] Speaker 06: And just to address Your Honor's questions about Section 232, Section B2 of the statute only says, if appropriate, that the Secretary of Commerce may hear from the domestic industry. [00:24:47] Speaker 06: And the proclamation, as my colleague talked about, it doesn't talk about them at all. [00:24:51] Speaker 06: So there is no right for them to be here. [00:24:53] Speaker 06: They do have a right to object before commerce. [00:24:57] Speaker 06: But here, win, lose, settle. [00:25:00] Speaker 06: They cannot show that they will be directly impacted by a judgment of the court for the reasons stated by my colleague. [00:25:06] Speaker 06: And if your honors don't have any other questions from me, I'm happy to give Mr. Littvack the rest of my time. [00:25:14] Speaker 03: Thank you, Your Honor. [00:25:14] Speaker 03: Thank you very much. [00:25:16] Speaker 03: Mr. Randstel, you have some rebuttal time left. [00:25:20] Speaker 05: Thank you, Your Honors. [00:25:22] Speaker 05: So if I may refocus a little bit back to Rule 24A, even if it were impossible for us to appeal an alternative sort of hypothetical situation, we can intervene as defendant here because we had a regulatory [00:25:37] Speaker 05: right to offer factual information administratively. [00:25:41] Speaker 05: Commerce relied on that information making its decisions and we satisfy the criteria of the rule for intervention. [00:25:49] Speaker 05: And the practical fact is the potential for future or forward-looking relief if it was ever in doubt is established by the settlements in Inner Pipe and the many other settlements that our friends on the other side mentioned. [00:26:03] Speaker 05: And moreover, the administrative determinations here themselves have value to us as a regulatory factor that commerce considers in making these exclusion determinations in the future. [00:26:14] Speaker 05: So we have, if I can sort of put it crudely, an ace in the hole that we can point to with respect to any future exclusion requests for these products. [00:26:24] Speaker 05: And if planets are successful, there's a possibility. [00:26:27] Speaker 05: And again, rule 24 is only looking for a possibility. [00:26:29] Speaker 05: The word is may. [00:26:31] Speaker 05: And so it doesn't need to be definite, but there's a possibility that that gets taken out from under us. [00:26:36] Speaker 05: And so we go from having an ace in the hole to the deck being stacked against us. [00:26:40] Speaker 05: And so there is a real risk of practical impairment on a going forward basis. [00:26:48] Speaker 05: And the question again of the adequacy of protection, the final prong of the rule, we think is answered by the existence of the settlements and sort of by the [00:26:59] Speaker 05: just the sheer volume of administrative records at issue here. [00:27:02] Speaker 05: I mean, the plaintiffs themselves, they moved to quote unquote complete the record because they thought that what the government provided to the court was incomplete. [00:27:09] Speaker 05: So when we're dealing with 800 records out of hundreds of thousands, the potential that something might be missing, that's something that we would be able to point to as supporting the government's original decision making is a real practical potential. [00:27:23] Speaker 05: And so, you know, this is not a tort case like in Wolfson where the government's just protecting the treasury money. [00:27:33] Speaker 05: This is a case where Commerce Department is a neutral decision-maker sort of administering a statute. [00:27:39] Speaker 05: And it's got to make judgment calls about, you know, what specifically the terms set out in the proclamation mean. [00:27:46] Speaker 05: whether there's a quantity and quality. [00:27:50] Speaker 05: What are those requirements? [00:27:51] Speaker 05: And we may look at them one way. [00:27:53] Speaker 05: Commerce may look at them the other way. [00:27:54] Speaker 05: And we may have ways of reading our evidence that we provided administratively that establishes that whatever standards Commerce settles upon were met. [00:28:03] Speaker 05: And if we are allowed to participate in this process, we can point to the administrative record that is before the court and say, look, Commerce, here's where it is. [00:28:12] Speaker 05: You don't need to settle these cases. [00:28:14] Speaker 05: You are right all along, and here's the support. [00:28:16] Speaker 05: And just a last point. [00:28:19] Speaker 04: But you're not even allowed to do that at the administrator process. [00:28:22] Speaker 04: You might have a better argument if Commerce and its regulations had given you the right to be a party at the administrator process and comment on the record and the like, but you can't do any of that, right? [00:28:33] Speaker 04: You don't get to see [00:28:34] Speaker 04: everything everybody else submitted, you just get to offer your own comments. [00:28:39] Speaker 04: You're asking for more rights at the CIT than you have at Commerce. [00:28:43] Speaker 05: No, Your Honor, I would respectfully disagree because we are simply seeking to explain our evidence that we provided administratively and that is we have full possibility to do so. [00:28:55] Speaker 04: You still can do that. [00:28:56] Speaker 05: Well, Your Honor, we don't know what the Department of Justice is looking at. [00:29:00] Speaker 04: Again, right, you don't look at the record, which you don't have a right to do at Commerce. [00:29:05] Speaker 05: But we have a right to look at the record that would support Commerce's denial of these exclusions. [00:29:11] Speaker 05: And that is something that we don't know whether that is complete before the Court of International Trade, Your Honor. [00:29:17] Speaker 03: OK, thank you very much. [00:29:18] Speaker 03: I thank both counsels. [00:29:19] Speaker 03: This case is taken under submissions. [00:29:21] Speaker 03: It concludes our proceedings for today.