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

[00:00:07] Speaker 01:
God save the United States and this honorable court.

[00:00:13] Speaker 08:
OK, good morning.

[00:00:14] Speaker 08:
We'll hear argument this morning in four cases which we've consolidated for purposes of oral argument.

[00:00:25] Speaker 08:
The first number of these cases is 20-ish.

[00:00:28] Speaker 08:
2230 Red Sun Farms versus United States.

[00:00:34] Speaker 08:
And there are three cases.

[00:00:39] Speaker 08:
We'll go together with that one.

[00:00:41] Speaker 08:
We'll begin with Mr. Sykes.

[00:00:44] Speaker 08:
And when you're speaking, it would be helpful if you would identify which of the four cases you are counsel for the appellant or appellant in.

[00:00:55] Speaker 08:
So go ahead, Mr. Sykes.

[00:00:58] Speaker 05:
Thank you, Judge Dyke.

[00:01:00] Speaker 05:
Good morning, and may it please the court.

[00:01:02] Speaker 05:
For the record, my name is Devin Sykes.

[00:01:04] Speaker 05:
I'm with Aiken-Gunstrasse Harenfeld, and I'm appearing today on behalf of the five associations who are appellants in Consolidated Appeal Number 2232.

[00:01:13] Speaker 05:
As you know, I will address question one.

[00:01:17] Speaker 08:
I think what I'd like you to do is to identify which case you are counsel in.

[00:01:21] Speaker 08:
I know you're representing all of the appellants here for this purpose, but which case

[00:01:28] Speaker 08:
Are you counsel in it?

[00:01:31] Speaker 05:
Yes, Your Honor.

[00:01:31] Speaker 05:
So I am counsel in the case that begins Confederación de Estaciones.

[00:01:37] Speaker 05:
Okay.

[00:01:37] Speaker 05:
Does that answer your question?

[00:01:38] Speaker 05:
Yes.

[00:01:39] Speaker 05:
Go ahead.

[00:01:40] Speaker 05:
Okay.

[00:01:40] Speaker 05:
Great.

[00:01:41] Speaker 05:
So as you know, I will address question one in the court's January 5th order.

[00:01:46] Speaker 05:
Question one raises a straightforward issue.

[00:01:49] Speaker 05:
Did appellants smooth their claims regarding commerce's unlawful termination of the 2013 agreement when they signed the 2019 agreement?

[00:01:56] Speaker 05:
The answer is just as simple, no.

[00:01:59] Speaker 05:
The operative test here is whether appellants have a concrete interest in the outcome, however small.

[00:02:05] Speaker 05:
The CIT incorrectly concluded that appellants have no such interest and then took the extreme and improper step of dismissing appellant's actions with prejudice.

[00:02:14] Speaker 05:
The CIT got it wrong for at least two reasons.

[00:02:17] Speaker 05:
First, the CIT incorrectly held that appellants voluntarily signed the 2019 agreement.

[00:02:24] Speaker 05:
That holding, however, erroneously ignores the factual allegations and the appellant's complaints.

[00:02:29] Speaker 05:
At this stage of the dispute, the CIT had no choice but to assume that allegations and the complaints are true, even if doubtful, in fact, and even if the trial judge did not believe them.

[00:02:40] Speaker 05:
Appellants alleged in their complaints that they were forced and compelled to sign the 2019 agreement.

[00:02:45] Speaker 05:
The CIT had no license to ignore those allegations.

[00:02:49] Speaker 05:
Now, second, apart from its failure to accept appellant factual allegations is true.

[00:02:53] Speaker 08:
What are the other claims with respect to the 2013 agreement?

[00:02:59] Speaker 08:
I know that one of them is duress.

[00:03:03] Speaker 08:
The others are that the statutory requirements for termination of the agreement weren't complied with.

[00:03:13] Speaker 08:
And there's a dispute as to whether they applied to the 2013 agreement.

[00:03:17] Speaker 08:
Correct?

[00:03:19] Speaker 05:
That's correct, Your Honor.

[00:03:20] Speaker 05:
The other argument which is related to that is that improper political influence actually drove Congress's unlawful termination and that they offered as pretext the termination clause in the agreement.

[00:03:32] Speaker 08:
So what case supports the notion that improper political influence is a basis for treating the 2013 agreement as still in force?

[00:03:46] Speaker 05:
as treating it still in force.

[00:03:48] Speaker 05:
That is one of the, let me answer your question directly, Your Honor.

[00:03:52] Speaker 05:
What we point to in our brief, of course, is the recent DACA case from the Supreme Court that says an agency's decision has to fall within or has to be based on the four corners of the record.

[00:04:02] Speaker 05:
We argue here that the improper political influence falls outside of the four corners of the record and therefore that the termination was unlawful.

[00:04:11] Speaker 05:
Does that answer your question?

[00:04:13] Speaker 05:
Go ahead.

[00:04:15] Speaker 02:
This is Judge Toronto.

[00:04:16] Speaker 02:
Can I just ask, is your claim about duress that both the 2013 termination, that is the termination of the 2013 agreement was under duress and that entry into the 2019 agreement was under duress or is it one or the other or what?

[00:04:39] Speaker 05:
Your Honor, our duress claim is more closely related to the signing of the 2019 agreement.

[00:04:47] Speaker 02:
Okay.

[00:04:47] Speaker 02:
And do you have any case law that, well first I guess is a threshold factual question.

[00:04:58] Speaker 02:
Are the signatories here free always to withdraw from the agreement?

[00:05:06] Speaker 05:
Of course they are, Your Honor, and thank you for raising that point.

[00:05:11] Speaker 05:
As you know, the CIT did offer that rationale in its opinion below and actually all the decisions below.

[00:05:17] Speaker 05:
But although true, and although it's true that the appellants are not paying cash deposits or dumping duties, that doesn't negate the fact that appellants are already suffering an injury.

[00:05:27] Speaker 05:
And nothing in the law requires appellants to suffer yet more injury or experience total injury.

[00:05:34] Speaker 05:
before their claims are properly ripe for review.

[00:05:37] Speaker 02:
Well, I guess I'm just, that feels more like it's getting into the next questions to me.

[00:05:44] Speaker 02:
I'm trying to figure out, you say that the entry into the 2019 agreement was under duress.

[00:05:51] Speaker 02:
And are there cases that say there can be a, without further specificity, a duress?

[00:06:02] Speaker 02:
defense to charge against an agreement that the party is legally free to walk away from?

[00:06:12] Speaker 05:
Yeah, we did not find any cases during our briefing.

[00:06:20] Speaker 05:
Of course, as you know, Judge Toronto, the most applicable cases, at least under this court's jurisprudence, are the New York Freedom case, or excuse me, Freedom New York case, and the North Star Steel case.

[00:06:31] Speaker 05:
Those are the two cases that talk about duress, albeit in the context of a procurement contract.

[00:06:39] Speaker 02:
And those didn't, or did they, did one of them involve a situation where the party actually couldn't walk away and not actually carry out any stated obligation of the agreement?

[00:06:52] Speaker 05:
From our opinion, from our review of those opinions, Your Honor, we did not, we did not, we could not tell whether that was true.

[00:06:59] Speaker 08:
Okay.

[00:07:00] Speaker 08:
All right, just to complete the circle, the remaining argument about the 2013 agreements is that the commerce's ability to withdraw from the agreements was governed by the statute and that the statutory conditions for withdrawal weren't satisfied.

[00:07:16] Speaker 08:
What's the basis for the argument that statutory provision applies here when the agreement itself gives the right to withdraw to commerce?

[00:07:27] Speaker 05:
Right.

[00:07:28] Speaker 05:
So our argument, Your Honor, is that commerce cannot augment its authority that is cabin by statute.

[00:07:37] Speaker 05:
And I would say to the extent that commerce itself felt that it had broad authority to terminate agreement whenever it pleased, it didn't codify it in its regulations.

[00:07:46] Speaker 05:
It's a 19 CFR 351.209.

[00:07:50] Speaker 05:
The other couple of points I would make on this, as you know, Judge Dyke, the statute limits when commerce can enter into the suspension agreement.

[00:07:58] Speaker 05:
got to be extraordinary circumstances.

[00:08:01] Speaker 05:
And the legislative history, which the government cites in its brief, also underscores that these are extraordinary circumstances and these agreements are meant to be used to conserve resources and achieve quick results.

[00:08:14] Speaker 05:
Our argument would be that it would be illogical for Congress to authorize commerce to enter into these sorts of negotiations

[00:08:25] Speaker 05:
under these circumstances and with those goals in mind, only for Congress then to willy-nilly terminate them whenever it pleased.

[00:08:34] Speaker 05:
I would also say at this stage, Your Honor, just at the outset, as you know, the test is whether we have asserted a plausible claim under Twombly and the related cases.

[00:08:44] Speaker 05:
As the Supreme Court said in Chaffin, the inquiry right now is not whether there's a prospect of whatever the prospects of success are not pertinent to the to the mootness inquiry, which is where we're at right now.

[00:08:55] Speaker 02:
Right, but just in terms of plausibility, in the absence of additional facts, and you can tell me if there are additional facts, why is it plausible to say that there was duress in the circumstances that have been presented to us here, in particular the walk away right?

[00:09:18] Speaker 02:
And that may not be the only thing, but why is this plausible?

[00:09:22] Speaker 05:
Sure, absolutely.

[00:09:23] Speaker 05:
So in our complaint, Judge Toronto, we outline how several of the appellants' members went out of business after the 2013 agreement was signed and before the 2019 agreement was executed.

[00:09:37] Speaker 05:
So although it comes across as a choice that's really a Hobbesian choice, the appellants had the opportunity to either go out of business or sign the agreement.

[00:09:45] Speaker 05:
And the fact that appellants chose to mitigate their damages, although still suffering injury, does not mean that their claims were moot.

[00:09:53] Speaker 05:
And it also demonstrates that, in fact, they were effectively forced to sign the agreement under duress so as not to suffer further injury.

[00:10:04] Speaker 00:
Just to follow up on that, I mean, your first response to Judge Toronto's earlier question was that the duress is more related to signing the 2019 agreement than anything dealing with the 2013 agreement.

[00:10:19] Speaker 00:
So can we focus on the duress for the 2013 agreement?

[00:10:23] Speaker 00:
I guess I'm getting confused between the two agreements and the allegations here.

[00:10:28] Speaker 05:
Sure.

[00:10:28] Speaker 05:
So thank you, Judge Prost.

[00:10:30] Speaker 05:
So just to clarify, we don't have a duress claim related to the 2013 agreement, the termination of the 2013 agreement.

[00:10:38] Speaker 05:
The allegation with respect to the 2013 agreement is that commerce didn't satisfy the applicable statutory and regulatory requirements.

[00:10:47] Speaker 05:
The separate related account is that commerce, excuse me,

[00:10:54] Speaker 05:
or that our appellants signed the agreement under duress.

[00:10:59] Speaker 08:
So what is, aside from the duress theory, what are the objections with respect to the 2019 agreement?

[00:11:07] Speaker 08:
What are the basis for setting aside the 2019 agreement other than the alleged duress?

[00:11:14] Speaker 05:
Right, so we're not challenging the terms of the agreement per se.

[00:11:19] Speaker 05:
What we're saying is that

[00:11:21] Speaker 05:
the terms of the agreement have imposed additional onerous and injurious obligations on appellants that they otherwise wouldn't have accepted, but for the unlawful termination of the agreement, the fast-track investigation that required appellants to submit information and condense timelines, timelines which by the way normally take about a year at least, and then as a result of that and result of the dumping, higher dumping margins that were calculated, our clients thought they had no choice but to sign the agreement.

[00:11:48] Speaker 08:
I apologize.

[00:11:49] Speaker 08:
I'm not quite following this.

[00:11:53] Speaker 08:
You say the 2019 agreement should be set aside because of duress.

[00:11:59] Speaker 08:
And then you talk about various problems with the anti-dumping proceeding.

[00:12:05] Speaker 08:
And if there were problems with the anti-dumping proceeding, presumably those could be challenged as part of the challenge to the commerce determination.

[00:12:16] Speaker 08:
And we're going to talk about that in a minute.

[00:12:18] Speaker 08:
But aside from the duress claim, is there any other separate argument for setting aside the 2019 agreement?

[00:12:28] Speaker 05:
Again, Your Honor, it would be the commerce's failure to satisfy the statutory and regulatory conditions that we outlined in count one.

[00:12:38] Speaker 08:
But those could be raised as a challenge to the final anti-dumping determination, right?

[00:12:46] Speaker 05:
under this court's decision in Miller, that is absolutely correct, Your Honor.

[00:12:50] Speaker 08:
Okay.

[00:12:51] Speaker 02:
Can I just ask one final question?

[00:12:55] Speaker 02:
You haven't yet, I think, at least this morning, disputed the proposition that if the 2019 agreement is a valid agreement, i.e.

[00:13:07] Speaker 02:
not avoidable for duress or something, then that would actually make relief

[00:13:15] Speaker 02:
on any challenge to the termination of the 2013 agreement unavailable and therefore the challenge to the termination of the 2013 agreement is moot.

[00:13:27] Speaker 02:
Do I understand that right?

[00:13:28] Speaker 02:
That the entire objection or challenge here at least to the mootness ruling as to termination of the 2013 agreement is that the 2019 agreement is itself

[00:13:43] Speaker 02:
void for duress and nothing else, so that if we rejected the duress challenge, then on this first question, indeed, there would be no available relief for the termination of the 2013 agreement.

[00:13:58] Speaker 02:
I hope that was clear.

[00:14:00] Speaker 05:
I think so.

[00:14:01] Speaker 05:
I think I'm understanding.

[00:14:02] Speaker 05:
What I would say, Judge Toronto, is that if you disagree with our duress claim and if you disagree with our claim about these statutory and regulatory violations,

[00:14:13] Speaker 05:
or excuse me, the statutory criteria not being satisfied, then I agree with you, then that would be foreclosed.

[00:14:20] Speaker 05:
Our arguments regarding the termination of the 2013 agreement would be foreclosed.

[00:14:24] Speaker 02:
And the statutory qualifications are qualifications for termination or qualifications for termination of the 2013 or for entry into the 2019?

[00:14:35] Speaker 05:
They're in fact related, Your Honor, because without proper termination,

[00:14:42] Speaker 05:
We don't even get to the signing of the 2019 agreement.

[00:14:45] Speaker 08:
Well, as I understand it, there are arguments as to why it was improper to terminate the 2013 agreement, because you allege that the statutory conditions had to be satisfied before that could happen.

[00:15:00] Speaker 05:
That's correct, Judge Day.

[00:15:04] Speaker 08:
OK.

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

[00:15:05] Speaker 05:
Here I'm into my rebuttal.

[00:15:08] Speaker 05:
I'll give the remainder of my speech.

[00:15:09] Speaker 05:
Okay, great, thank you.

[00:15:10] Speaker 08:
I will give you three minutes for a rebuttal, okay?

[00:15:12] Speaker 05:
Thank you.

[00:15:13] Speaker 08:
And we'll hear from the government.

[00:15:18] Speaker 07:
Yes, good morning, Your Honors.

[00:15:19] Speaker 07:
This is Robert Capura of the Department of Justice Civil Division.

[00:15:24] Speaker 07:
And good morning and may it please the Court.

[00:15:27] Speaker 07:
The Court of International Trade was correct in its determination.

[00:15:30] Speaker 08:
This Judge, I find very odd the notion that the signing of the twenty

[00:15:37] Speaker 08:
19 agreement rendered the challenges to the 2013 agreement moot.

[00:15:43] Speaker 08:
It may be that those challenges don't have any merit.

[00:15:47] Speaker 08:
But if in fact, for example, they were to succeed on the claim that the 2013 agreement was improperly terminated under the statute, I'm not sure why the signing of the 2019 agreement renders that claim moot.

[00:16:08] Speaker 07:
Well, Your Honor, it goes to the relief that could be provided by the Court of International Trade.

[00:16:18] Speaker 07:
Specifically, the relief that had been sought was the appellants sought to prevent commerce from suspending the liquidation of imports, resuming the underlying anti-dumping investigation, and requiring cash bonds or deposits.

[00:16:38] Speaker 07:
The 2019 suspension agreement provides all of those things.

[00:16:44] Speaker 07:
So there was no further relief that the trade court could have provided after the suspension agreement.

[00:16:52] Speaker 08:
If they reinstated the 2013 agreement, that would be a form of relief.

[00:17:00] Speaker 08:
I mean, it may be that the claim on the merits fails.

[00:17:04] Speaker 08:
But I don't quite understand why

[00:17:08] Speaker 08:
the execution of the 2019 agreement automatically renders the case moot.

[00:17:14] Speaker 08:
And there's also the claim that the 2019 agreement was entered into by duress.

[00:17:21] Speaker 08:
That may be that the claim has no merit, but it seems to me that it's not a question of moot, it's a question of lacking a claim on the merit.

[00:17:34] Speaker 07:
Well, Your Honor, the 2019 agreement replaced and superseded the 2013 agreement.

[00:17:43] Speaker 07:
So again, there was no action that the trade court could have taken once the agreement was entered into.

[00:17:52] Speaker 08:
I don't understand that.

[00:17:54] Speaker 08:
Their theory is the 2019 agreement should be set aside for duress.

[00:17:59] Speaker 08:
and the determination of the 2013 agreement should be held to be improper because it didn't comply with the statutory standard.

[00:18:08] Speaker 08:
I don't understand why those claims are moot.

[00:18:11] Speaker 08:
They may not have merit, but why are they moot?

[00:18:16] Speaker 07:
Well, Your Honor, with regard to their claim of duress, as was mentioned earlier, the parties can withdraw

[00:18:23] Speaker 07:
from the 2019 agreement at any time.

[00:18:26] Speaker 08:
That's an argument that the claim has no merit.

[00:18:31] Speaker 08:
That's not an argument about mootness.

[00:18:33] Speaker 08:
If they were to prevail on the duress claim and the statutory violation claim, relief would be available.

[00:18:40] Speaker 08:
It's not moot.

[00:18:45] Speaker 07:
Well, again, Your Honor, the issue

[00:18:50] Speaker 07:
with regard to the mootness simply goes to what the trade court could order, what action the trade court could order commerce to take.

[00:19:03] Speaker 07:
The effect of withdrawing from the 2013 agreement was that commerce, you know, again, took those actions I've mentioned earlier.

[00:19:12] Speaker 07:
They suspended liquidation and sought the cash deposits and continued with the investigation.

[00:19:19] Speaker 07:
So those were the actions that the challenge, that's the effect of the challenge to the withdrawal from the 2013 agreement would be to prevent Commerce from taking those actions.

[00:19:34] Speaker 07:
And what our argument is that because that was the effect of the withdrawal, the signing of the 2019 agreement had that effect.

[00:19:47] Speaker 07:
So there was nothing further.

[00:19:49] Speaker 08:
The 2019 agreement and reinstate the 2013 agreement, that's significant relief that's available to them.

[00:19:56] Speaker 08:
They may not be entitled to it, but the claims aren't moot, are they?

[00:20:03] Speaker 07:
Well, again, Your Honor, we believe that they are because they voluntarily entered into the 2019 agreement.

[00:20:12] Speaker 02:
This is Judge Serrano.

[00:20:14] Speaker 02:
Can I ask, I guess, to follow through on this?

[00:20:18] Speaker 02:
I had understood, and I guess it's sort of two parts to what I want to ask you about.

[00:20:25] Speaker 02:
I had understood that the principle, let's call it mootness contention, but the contention that no relief

[00:20:37] Speaker 02:
is available that could benefit the plaintiffs by a ruling on the illegality of the termination of the 2013 agreement that the principal point required, requires us to say whether on the motion to dismiss the 2019 agreement is invalid for duress.

[00:21:04] Speaker 02:
Now, I think I hear you saying that somehow even without our deciding that, because if we were to decide there's a viable, plausible, non-Rule 12B claim of duress, do you still have an argument that the challenge to the 2013 agreement is not

[00:21:32] Speaker 02:
a live one that is not one from which the plaintiffs could secure any relief?

[00:21:39] Speaker 07:
Well, Your Honor, if I'm understanding your question correctly, the other problem that we're confronted or that appellants are confronted with here is that there is no challenge to the 2019 agreement.

[00:21:56] Speaker 07:
In three of the four cases presently before the court,

[00:22:00] Speaker 07:
There is no attempt to challenge the terms of the 2019 agreement.

[00:22:05] Speaker 07:
And as counsel mentioned earlier, the one case that does contain a challenge doesn't actually challenge the terms of the 2019 agreement itself.

[00:22:14] Speaker 07:
It simply alleges that the 2019 agreement was only entered into under duress from withdrawal from the 2013 agreement.

[00:22:23] Speaker 07:
So in other words, that's not a direct challenge to the 2019 agreement.

[00:22:27] Speaker 02:
So I'm not sure.

[00:22:30] Speaker 02:
I'm not sure why it matters whether it's a direct challenge.

[00:22:33] Speaker 02:
If I thought all the plaintiffs were say all of the plaintiffs here are saying no, that, um, the 2019 agreement can't have any negative effects on our ability to challenge the 2013.

[00:22:51] Speaker 02:
termination, which is what the CIT said it did have, because that agreement is void for duress.

[00:23:03] Speaker 02:
Don't we have to decide that at least?

[00:23:07] Speaker 02:
Or are you saying that somehow, even if the 2019 agreement is for 12B purposes, void

[00:23:18] Speaker 02:
for duress or that the plaintiffs, even if we say that the plaintiffs have a merits claim that they should be allowed to move forward in the litigation with, that still there is no possible relief from the challenge to the termination of the 2013 agreement?

[00:23:35] Speaker 07:
Well, I would agree with Your Honor that the plaintiffs are seeking to void the 2019 agreements

[00:23:44] Speaker 07:
based on duress.

[00:23:46] Speaker 07:
But again, the issue with that claim, and I understand this will be addressed later, there's an issue as to whether or not that claim is proper and timely.

[00:23:58] Speaker 07:
But beyond that, they're asking the court to void the 2019 agreement when they can withdraw from it at any time.

[00:24:08] Speaker 02:
I guess that feels to me like an argument which you have not yet made, that indeed there is no plausible, for 12b purposes, claim of duress here.

[00:24:22] Speaker 07:
Yes, that's correct, Your Honor.

[00:24:26] Speaker 02:
And why is that?

[00:24:28] Speaker 07:
Why is there no plausible claim?

[00:24:31] Speaker 02:
What's the case law authority that says when the allegation of duress is made, at least on these facts, that that doesn't rise, you know, meet the Trombley standard for plausibility?

[00:24:46] Speaker 07:
Well, Your Honor, the in terms of the case laws was discussed in the earlier argument.

[00:24:53] Speaker 07:
It's the

[00:24:54] Speaker 07:
plaintiff's burden to invoke the court's jurisdiction, and they haven't cited to a single case which would support an allegation of duress in these circumstances.

[00:25:07] Speaker 08:
In fact, that's an argument that they don't have a viable duress claim.

[00:25:12] Speaker 08:
It's not a mootness argument.

[00:25:15] Speaker 08:
Don't you agree that we have to decide the duress issue, whether there's a reasonable claim here, a viable claim?

[00:25:27] Speaker 07:
Yes, Your Honor, there's a claim regarding duress, but again, as counsel, I hear my time is expended if I might briefly conclude.

[00:25:37] Speaker 07:
Go ahead.

[00:25:40] Speaker 07:
As counsel indicated earlier, that challenge would go to the 2019 agreement.

[00:25:50] Speaker 07:
They're alleging that the 2019 agreement was entered into under duress.

[00:25:55] Speaker 07:
But again, the problem with that is the only way that they, there's really two issues with it.

[00:26:02] Speaker 07:
First and foremost, as we've already mentioned, they can withdraw from that remit at any time.

[00:26:06] Speaker 07:
And second of all, the duress that they're alleging was the continued investigation and the suspension of liquidation and so forth, which if they had allowed that to proceed,

[00:26:20] Speaker 07:
There was a way for them to challenge that under the statute once the final determination had issued.

[00:26:29] Speaker 07:
There was no other duress beyond that.

[00:26:33] Speaker 07:
So what?

[00:26:34] Speaker 08:
We have to decide the duress claim, don't we?

[00:26:39] Speaker 07:
Well, certainly, appellants have alleged that, Your Honor.

[00:26:42] Speaker 07:
So yes, the claim, the argument should be decided.

[00:26:47] Speaker 07:
But again,

[00:26:48] Speaker 07:
That goes to their argument on the 2019 agreement and has no impact on the fact that their agreements to the terms of the 2019 agreement removed any possibility of relief related to the 2013 agreement.

[00:27:11] Speaker 08:
OK.

[00:27:12] Speaker 08:
Well, unless my colleagues have any questions, let's hear from Mrs. Alves.

[00:27:22] Speaker 01:
Thank you, Your Honor.

[00:27:23] Speaker 01:
Mary Jane Alves from Cafe Levy-Kent on behalf of the Florida Tomato Exchange.

[00:27:28] Speaker 01:
You were asking this morning about whether there was an opportunity for the Mexican respondents to challenge the termination of the 2013 agreement.

[00:27:39] Speaker 01:
And in fact, there was.

[00:27:41] Speaker 01:
They attempted to prematurely challenge the termination of the 2013 agreement.

[00:27:47] Speaker 01:
And as Judge Toronto may recall,

[00:27:50] Speaker 01:
This court actually denied a petition that they had, that CODIS had filed, where they were seeking a writ of mandamus to the Court of International Trade, which had denied their request for an injunction against the withdrawal from the 2013 and the imposition of the suspension of liquidation.

[00:28:12] Speaker 01:
At the time, in front of the Court of International Trade, CADIS conceded, and the court in CADIS III, 459F sub 3D, recognized at the time that CADIS actually conceded that each of the prior agreements had replaced the preceding agreements, and that's in their brief at page nine.

[00:28:34] Speaker 01:
And in addition, they also conceded that they were not challenging the legality of the withdrawal.

[00:28:39] Speaker 02:
Can I just ask, is the argument, are all of the plaintiffs who are raising a 2013 termination agreement in front, right now, that is all the ones who are in front of us now, were they also essentially party to that concession?

[00:29:01] Speaker 01:
Your Honor, yes, because although I'm referring to them simplistically as CADIS, at the time they were representing several associations,

[00:29:09] Speaker 01:
And members of GEMD, Red Sun, and BioParkus were part of one of the associations that was represented as part of that litigation.

[00:29:18] Speaker 08:
OK.

[00:29:19] Speaker 08:
OK.

[00:29:19] Speaker 08:
So are those three parties, BioParks, Red Sun, and GEMD, are they raising the 2013 agreement point here in their complaints?

[00:29:31] Speaker 01:
To a greater or lesser degree, yes.

[00:29:36] Speaker 01:
Each of them has a different finesse on the point, but yes.

[00:29:39] Speaker 01:
They're all, you know, challenging the termination and whether or not the termination was legal.

[00:29:47] Speaker 02:
I thought perhaps not Red Sun but the others, yes.

[00:29:51] Speaker 02:
My notes could be wrong about that.

[00:29:55] Speaker 02:
Anyway.

[00:29:56] Speaker 01:
Red Sun also has a separate litigation as part of the GEMD litigation.

[00:30:02] Speaker 01:
They're part of the same corporate family as I understand it.

[00:30:05] Speaker 02:
Okay.

[00:30:07] Speaker 02:
So what do you make then of, I guess, our mandamus ruling or what was said?

[00:30:13] Speaker 02:
You were quoting a concession.

[00:30:20] Speaker 02:
Can you just go back to say what you think that was or what it worked for?

[00:30:24] Speaker 01:
Yes.

[00:30:24] Speaker 01:
So in the first instance, they brought that appeal too early.

[00:30:28] Speaker 01:
And they did seek preliminary injunctive relief to stop commerce from terminating the 2000 agreement, 2013 agreement.

[00:30:37] Speaker 01:
and also then requiring cash deposits and bonds.

[00:30:41] Speaker 01:
And the Federal Circuit and the Court of International Trade denied relief at that time.

[00:30:46] Speaker 01:
That's not to say that they could not have appealed the withdrawal from the 2013 agreement or that there weren't other ways for them to get relief from the courts.

[00:30:58] Speaker 01:
The problem is that they made a choice.

[00:31:01] Speaker 01:
The time for that appeal would have been to wait until commerce had issued its final determination

[00:31:07] Speaker 01:
and then file a timely appeal at that point in time.

[00:31:11] Speaker 01:
However, before Commerce issued its final determination, that's when they negotiated the 2019 agreement.

[00:31:20] Speaker 01:
And as CADIS has conceded in its brief at page 9, each of the times that it has concluded prior agreements in 2002, 2008, 2013, the subsequent agreement each replaced the preceding agreements.

[00:31:36] Speaker 01:
You wouldn't want to have multiple agreements in effect at the same time.

[00:31:40] Speaker 01:
So the natural effect is when they negotiated and agreed to negotiate the 2019 suspension agreement, that then replaced the 2013 agreement.

[00:31:51] Speaker 08:
Well, that may be, but if the 2019 agreement is set aside on a duress theory that doesn't exist anymore, and then that opens up a challenge to the 2013 agreement, doesn't it?

[00:32:06] Speaker 01:
Your Honor, with respect, I think there, I agree with my colleague this morning that, Mr. Capura, that one, they have not offered a case showing duress in these circumstances.

[00:32:20] Speaker 01:
And two, to the extent that they believe that there was duress, they didn't challenge the suspension agreement.

[00:32:27] Speaker 01:
This was another opportunity that they had if they believed that- What do you mean?

[00:32:31] Speaker 08:
I don't understand what you're saying.

[00:32:32] Speaker 08:
They didn't challenge the suspension agreement?

[00:32:34] Speaker 08:
They're challenging the 2019 agreement.

[00:32:38] Speaker 01:
No, Your Honor.

[00:32:39] Speaker 01:
There is a specific statutory mechanism for them to appeal the 2019 agreement.

[00:32:44] Speaker 01:
They had to file summons within 30 days after the notice of the suspension agreement was published.

[00:32:51] Speaker 01:
And there was no timely appeal of the suspension agreement by any of the parties.

[00:32:56] Speaker 08:
Why does that time limit apply to a duress claim?

[00:33:05] Speaker 01:
Because that's what the statute has set up for any claims that would be subsumed by a claim that there's a defect in the suspension agreement.

[00:33:15] Speaker 08:
Which provision of the statute?

[00:33:19] Speaker 01:
The statute provides for its 19 U.S.E.

[00:33:23] Speaker 01:
1516 AA to B4, which provides for challenges to suspension agreements.

[00:33:31] Speaker 01:
if the party files a summons within 30 days after the notice of the suspension agreement was published.

[00:33:37] Speaker 00:
This is Judge Prost.

[00:33:39] Speaker 00:
Just to clarify, was that something that the CIT referenced in her decision?

[00:33:46] Speaker 01:
The CIT did reference in her decision that there was no timely challenge to the suspension agreement.

[00:33:54] Speaker 01:
Yes, Your Honor, I believe so.

[00:33:56] Speaker 00:
And citing this statutory provision you're citing now?

[00:34:01] Speaker 01:
I'm looking for that.

[00:34:04] Speaker 01:
I apologize.

[00:34:05] Speaker 01:
Unfortunately, I don't have a direct site in front of me.

[00:34:07] Speaker 00:
But to the best of my... Your recollection is that that was the basis on which the CIT relied?

[00:34:14] Speaker 01:
Yes, I believe that the CIT would have referenced that.

[00:34:21] Speaker 02:
And your position is that since any challenge to the 2013

[00:34:29] Speaker 02:
to the termination of the 2013 agreement would depend on avoiding an invalidation of the 2019 suspension agreement and the time limit for challenging that agreement was missed.

[00:34:51] Speaker 02:
without a challenge that even a duress argument, which would be a form of challenging the 2019 suspension agreement, is unavailable to the plaintiffs here.

[00:35:04] Speaker 02:
Did I understand?

[00:35:05] Speaker 02:
That's what I thought.

[00:35:07] Speaker 02:
I just heard from you.

[00:35:08] Speaker 01:
Yes, I believe that's correct.

[00:35:17] Speaker 08:
But the statute talks about a challenge to the suspension of the investigation.

[00:35:22] Speaker 08:
It doesn't talk about a challenge to the agreement, right?

[00:35:34] Speaker 01:
I see that my time has expired, but if you'll allow me to respond.

[00:35:41] Speaker 08:
When we're asking questions, your time hasn't expired.

[00:35:44] Speaker 01:
OK, good.

[00:35:44] Speaker 01:
Thank you.

[00:35:47] Speaker 01:
Yes.

[00:35:48] Speaker 01:
The statute refers to the suspension of the investigation, but the suspension of the investigation occurs through the mechanism of the suspension agreement, if you want to guess.

[00:36:01] Speaker 08:
OK.

[00:36:01] Speaker 08:
Anything further?

[00:36:04] Speaker 08:
I hear no further questions.

[00:36:06] Speaker 08:
Thank you, Ms.

[00:36:07] Speaker 08:
Alves.

[00:36:08] Speaker 08:
And Mr. Sykes, you have three minutes.

[00:36:11] Speaker 05:
Thank you, Judge Dyke.

[00:36:13] Speaker 05:
A few points, if I may.

[00:36:15] Speaker 05:
First of all, the government said a few times that the signing of the agreement simply wiped away any claims that we might have as to the termination of the 2013 agreement.

[00:36:25] Speaker 05:
But nothing in the 2019 agreement itself says that, in fact, the appellants, the folks who signed the agreement, waived any claims as to commerce's termination of the 2013 agreement.

[00:36:36] Speaker 05:
So that's point number one.

[00:36:38] Speaker 05:
Point number two,

[00:36:39] Speaker 05:
With respect to relief, Judge Dyck, you raised a few questions on this point.

[00:36:44] Speaker 05:
As you know, this past summer in July 2021, this court affirmed the CIT decision in CSC Sugar.

[00:36:53] Speaker 05:
In that particular case, the CIT had invalidated and set aside an amendment to a separate suspension agreement.

[00:37:01] Speaker 05:
until commerce corrects the process and once it did then the CIT approved that amendment and it was appealed and this court affirmed in a rule 36.

[00:37:11] Speaker 05:
So to your point Judge Dyke, this court does have the authority to afford relief when appropriate.

[00:37:17] Speaker 05:
The other point I will make about is one about collateral consequences.

[00:37:21] Speaker 05:
Now, as you know, in our briefs, we talk about this more directly on the claims with respect to the dumping determinations.

[00:37:27] Speaker 05:
But we also respectfully submit that the collateral consequence is exception to mootness apply here, too, in that the agreement contains numerous provisions that are burdensome on appellants.

[00:37:38] Speaker 05:
And Commerce continues to conduct proceedings that administer those burdensome terms, both in sort of the run-of-the-mill quarterly audits and quarterly certifications, but also in these invasive administrative reviews, the preliminary result of which just first issued in October of last year.

[00:37:54] Speaker 05:
So we do think setting, even if you were to agree with the government, the signing of the agreement somehow, of the 2019 agreement, somehow mooted our claims as a 2013 agreement, we think that the collateral consequences exception

[00:38:07] Speaker 05:
applies with force here, just as it does to the dumping determinations.

[00:38:11] Speaker 02:
The collateral consequences of what?

[00:38:15] Speaker 05:
The collateral consequences of the agreement itself.

[00:38:18] Speaker 02:
Which agreement?

[00:38:19] Speaker 02:
Give a date.

[00:38:20] Speaker 05:
I'm sorry.

[00:38:22] Speaker 05:
The 2019 agreement, Your Honor.

[00:38:27] Speaker 02:
Can you address the points that Ms.

[00:38:31] Speaker 02:
Alves was making about how

[00:38:36] Speaker 02:
at least one, perhaps two statutory deadlines for making a challenge were missed.

[00:38:46] Speaker 02:
The first statutory deadline would be the deadline for challenging the termination of the 2013 agreement and that was missed because by the time that

[00:38:57] Speaker 02:
The whole issue was, before that deadline, as I understand it, came around, you all signed the 2019 agreement and therefore thought, oh, we don't actually need to challenge the determination.

[00:39:11] Speaker 02:
And then second, the entry, the deadline for challenging,

[00:39:16] Speaker 02:
the entry into the 2019 agreement, let's assume that that equates with the suspension under the statutory B4 section, that that deadline also came and went without a challenge.

[00:39:30] Speaker 02:
What's wrong with that and why, if that's right, is that not sufficient by itself to eliminate any possible challenge to the termination of the 2013?

[00:39:42] Speaker 05:
Sure.

[00:39:45] Speaker 05:
Thank you, Judge Toronto.

[00:39:46] Speaker 05:
So Ms.

[00:39:47] Speaker 05:
Alves' response, excuse me, goes more towards jurisdiction, which Mr. Wynton will handle, but I'll say this.

[00:39:52] Speaker 05:
As you know, we've, I said today, we've had appellants in 2022-32, and I think this is true for all appellants.

[00:40:00] Speaker 05:
You know, we filed three separate actions.

[00:40:02] Speaker 05:
To the extent that this court, and I'm going to say little i, which is the provision that Ms.

[00:40:07] Speaker 05:
Alves referenced,

[00:40:08] Speaker 05:
We did file our action within the 31 to 60 day window that that allows.

[00:40:15] Speaker 05:
That is to a challenge to a final determination and consistent with this court's decision in Miller, we can challenge the predicate procedural steps as part of that appeal.

[00:40:25] Speaker 08:
So.

[00:40:26] Speaker 08:
Okay, but that doesn't really answer the question of whether you can have an independent action challenging the 2013 agreement.

[00:40:34] Speaker 08:
when the contention is that there is a statutory time limit that creates a bar.

[00:40:41] Speaker 05:
And I'm sorry.

[00:40:43] Speaker 05:
I believe that the argument was that somehow we have to file within 30 days from the signing of the agreement to challenge that.

[00:40:50] Speaker 05:
Is that correct, Your Honor?

[00:40:51] Speaker 05:
Is that your understanding?

[00:40:52] Speaker 05:
If that was my understanding.

[00:40:54] Speaker 08:
It's 1673 CI.

[00:40:59] Speaker 05:
I understand.

[00:41:02] Speaker 05:
So, I mean, the jurisdictional provisions here in terms of the timing to challenge the agreement, you've got to do that within 30 days.

[00:41:11] Speaker 05:
That's under 19, that's at 1516A, A2B4.

[00:41:18] Speaker 05:
And I would say that, for example, with respect to the appellants that I represent, we did timely file that challenge in CIT number 19203 within 30 days.

[00:41:29] Speaker 05:
So we have timely filed an appeal.

[00:41:34] Speaker 08:
That answers your question.

[00:41:36] Speaker 08:
Any further questions?

[00:41:39] Speaker 08:
No.

[00:41:41] Speaker 08:
All right.

[00:41:41] Speaker 08:
Thank you, Mr. Spock.

[00:41:42] Speaker 08:
Thank you.

[00:41:43] Speaker 08:
And now, on issue number two, we'll hear from Mr. Dirling.

[00:41:50] Speaker 03:
Thank you, Your Honor.

[00:41:52] Speaker 03:
I'm James Dirling.

[00:41:53] Speaker 03:
I'm addressing issue number two.

[00:41:55] Speaker 03:
Whether the case presents as it says.

[00:41:57] Speaker 08:
Wait, wait, wait.

[00:41:59] Speaker 08:
State which group you represent.

[00:42:01] Speaker 08:
I know you're speaking on behalf of.

[00:42:03] Speaker 08:
all the parties in these four cases, but which is your client?

[00:42:09] Speaker 03:
Apologies, Your Honor.

[00:42:11] Speaker 03:
We represent Red Sun Farms and Gem D. OK.

[00:42:16] Speaker 03:
Both?

[00:42:17] Speaker 03:
Yes.

[00:42:18] Speaker 03:
And so that's basically matter 2230 and 1292.

[00:42:27] Speaker 03:
My issue is a mix of standing and ripeness arguments, but they really involve a common core set of issues plaintiffs have standing because they're already suffering injury.

[00:42:36] Speaker 03:
In fact, and the dispute is ripe.

[00:42:39] Speaker 03:
because they're standing and because there's a sufficient risk of immediate hardship.

[00:42:43] Speaker 03:
Let me start with two key facts that are really central to understanding this issue.

[00:42:48] Speaker 03:
The first is that the 2019 final dumping determination increased the dumping margins.

[00:42:55] Speaker 03:
And the second key fact is that determination was never suspended.

[00:43:00] Speaker 03:
I want to stress the final determination was never suspended because the government in its briefs

[00:43:06] Speaker 03:
Repeatedly refers to the final determination was suspended, but that's not technically correct.

[00:43:12] Speaker 03:
Your honors.

[00:43:14] Speaker 03:
In fact, the final determination was finalized an issue in terms of justice ability.

[00:43:20] Speaker 08:
Why isn't this case just like met immune

[00:43:24] Speaker 03:
The case actually is quite similar to MedImmune, Your Honor, in that we agree that there's no requirement, there's no constitutional requirement that you basically take the final steps and compound the injury being suffered.

[00:43:41] Speaker 03:
And indeed, we completely agree with the sentiment in MedImmune that when it's the government doing this, when it's the government setting up a sort of Damocles hanging over

[00:43:52] Speaker 03:
the parties here, it cannot be the case that to have a justiciable case, we have to let the sword of Damocles fall and inflict even greater harm.

[00:44:03] Speaker 03:
There's current harm being suffered.

[00:44:05] Speaker 03:
The fact that there are paths that would lead to even greater harm does not in any way... It strikes me you're making this much too complicated.

[00:44:14] Speaker 08:
Metamune says that if you have an agreement and you have a theory

[00:44:21] Speaker 08:
that the agreement would fall if you're successful in that case on establishing patent invalidity, there's a case of controversy.

[00:44:33] Speaker 08:
And isn't this the same thing?

[00:44:35] Speaker 08:
The statute says the agreement falls if you succeed in the anti-dumping proceeding and establishing no duty or a de minimis duty.

[00:44:44] Speaker 08:
Why isn't this the same?

[00:44:47] Speaker 03:
Your Honor, we would agree with that.

[00:44:49] Speaker 03:
We agree that the current situation creates a cognizable.

[00:44:54] Speaker 03:
There's enough injury, in fact, to create cognizable dispute now.

[00:45:00] Speaker 03:
And per MedImmune, there's no need to wait and take further steps, right?

[00:45:04] Speaker 03:
In that case, it was the you don't have to breach the agreement and compound the injury to have a cognizable claim.

[00:45:10] Speaker 03:
So we completely agree with that.

[00:45:14] Speaker 03:
So we completely agree with that point.

[00:45:17] Speaker 03:
But fundamentally, the reason there is currently injury in fact, obviously MedImmune supports this.

[00:45:25] Speaker 03:
But the reason we think MedImmune actually is correct in this particular context is that there is current injury in fact

[00:45:35] Speaker 03:
The final determination still exists.

[00:45:39] Speaker 03:
It is a final determination.

[00:45:41] Speaker 03:
It has legal consequences.

[00:45:43] Speaker 03:
What was suspended was the continuation of the investigation.

[00:45:47] Speaker 03:
In the prior panel, you cited this language.

[00:45:50] Speaker 03:
The suspension is suspension of the investigation.

[00:45:53] Speaker 03:
It's not suspension of the final determination.

[00:45:57] Speaker 03:
The final determination is currently having harm.

[00:46:02] Speaker 03:
And let me make that very concrete.

[00:46:05] Speaker 02:
I'm sorry, this is just random.

[00:46:08] Speaker 02:
I think I want to take a couple of steps back and then come back to what you're saying.

[00:46:13] Speaker 02:
I guess I had thought that the fairly simple view of why you have standing and the matter is right and all of that is that if your view of the proper

[00:46:35] Speaker 02:
of the challenges to the final determination were to prevail, that the results of prevailing would be a zero or low anti-dumping duty, which would then allow you to withdraw from the suspension agreement and be better off.

[00:46:57] Speaker 02:
Why is that not enough, irrespective of some, I don't know, this sort of Damocles

[00:47:05] Speaker 02:
idea that you're laying out.

[00:47:08] Speaker 03:
Your Honor, we would agree with that.

[00:47:10] Speaker 03:
We agree that is enough.

[00:47:12] Speaker 03:
With respect to different parties, the challenges to the final determination might result in different outcomes.

[00:47:20] Speaker 03:
There are at least some Mexican exporters for whom that might lead to a de minimis determination.

[00:47:26] Speaker 03:
But it is certainly true that for all of the Mexican importers, it would lead to lower dumping duties.

[00:47:33] Speaker 03:
Because that's really kind of the subtext of what's going on here.

[00:47:37] Speaker 03:
termination of the 2013 agreement so that the government could take steps to impose significant price increases on Mexican exporters.

[00:47:46] Speaker 03:
That on average, the dumping margins increased by about 12%.

[00:47:51] Speaker 03:
They were at about 18% as measured by the all-others rate, and they increased to about 30%.

[00:47:59] Speaker 03:
So this really, stepping back from the legal technicalities, economically this was about

[00:48:06] Speaker 03:
taking an old agreement that imposed one set of dumping margins and replacing it with a new agreement with significantly higher dumping margins that is currently causing injury to the Mexican exporters.

[00:48:23] Speaker 02:
And do the suspension agreements set minimum prices?

[00:48:27] Speaker 03:
Yes, they do, Your Honor.

[00:48:29] Speaker 03:
The way it works and the relationship between the final determination and the agreement is you have a determination by commerce, either a preliminary determination or, if the case has continued, a final determination.

[00:48:43] Speaker 03:
Based on that determination, a suspension agreement sets reference prices.

[00:48:48] Speaker 03:
The idea is to set prices that are designed to eliminate most of, eliminate approximately 85% of the alleged dumping.

[00:48:56] Speaker 03:
So there's this connection.

[00:48:58] Speaker 03:
The final determination essentially sets margins, which imply prices that have to be charged in the US market.

[00:49:06] Speaker 03:
The suspension agreement then goes on to basically say,

[00:49:10] Speaker 03:
if you keep prices above a certain letter level, then you are in compliance with the agreement and we won't take any further actions.

[00:49:18] Speaker 03:
That is real and concrete as you heard in the end of the prior panel.

[00:49:23] Speaker 02:
Just to be clear, do the complaints by the plaintiffs here assert that if the arguments being made to challenge the 2019 final determination

[00:49:38] Speaker 02:
succeeded that they would be better off than if... Yes, Your Honor.

[00:49:44] Speaker 02:
Okay.

[00:49:45] Speaker 03:
Yes, Your Honor.

[00:49:46] Speaker 03:
For individual plaintiffs, the situation might be somewhat different, but certainly they all are alleging that they would be better off

[00:49:54] Speaker 03:
if they were not forced to comply with the regime created by the 2019 final determination.

[00:50:03] Speaker 03:
The 2019 final determination fundamentally changed the landscape.

[00:50:07] Speaker 03:
It forced the Mexican exporters to start charging higher prices.

[00:50:12] Speaker 03:
It forced the Mexican exporters to go through these compliance reviews and, you know, going through the procedure and demonstrating that they're charging high enough prices.

[00:50:23] Speaker 03:
The fact that there could have been a worse outcome per metamune, that's not required here.

[00:50:31] Speaker 03:
There's concrete real harm being suffered now.

[00:50:40] Speaker ?:
Okay?

[00:50:40] Speaker 03:
So it's basically concrete harm in terms of the ongoing operation of the agreement.

[00:50:47] Speaker 03:
I'm sorry, I think I just heard the buzz for my time.

[00:50:51] Speaker 03:
Did I?

[00:50:54] Speaker 01:
That wasn't the buzz.

[00:50:56] Speaker 03:
No, okay, I'm sorry.

[00:50:58] Speaker 03:
So it's not just the operation of the final determination and the compliance reviews.

[00:51:03] Speaker 03:
It's also kind of concrete current injury in the practical

[00:51:11] Speaker 03:
with the practical operation of the agreement as well because it's dictating prices that have to be charged.

[00:51:21] Speaker 03:
private companies suffer harm when the government steps in and requires them to charge higher prices.

[00:51:30] Speaker 03:
That's the actual point of the suspension agreement, to force the government, the government to force private parties to charge higher prices, and that's exactly what is happening here.

[00:51:46] Speaker 03:
The other reasons there's concrete injury in fact and the arguments by the government are not persuasive.

[00:51:53] Speaker 03:
First, as you'll hear in panel three, that's precisely why Congress authorized a path, a jurisdictional path to bring this kind of case.

[00:52:03] Speaker 03:
It would seem odd for Congress to create jurisdiction to allow a fact pattern to be brought into court if that wasn't congressional recognition that in that fact pattern was some cognizable harm.

[00:52:17] Speaker 03:
And the fact that the,

[00:52:19] Speaker 03:
Mexican exporters here can terminate the agreement in no way eliminates the injury in fact.

[00:52:25] Speaker 03:
All terminating the agreement would do is basically put them in the situation of metamune, which is terminate the agreement and then suffer greater harm from having done so.

[00:52:37] Speaker 08:
Thank you.

[00:52:38] Speaker 08:
Thank you, Mr. Duralyn.

[00:52:40] Speaker 08:
Okay, we'll hear from Mr. Edelschick.

[00:52:44] Speaker 04:
Thank you, Your Honor.

[00:52:45] Speaker 04:
Doug Edelschick, Department of Justice.

[00:52:47] Speaker 08:
So why doesn't MedImmune sink your justiciability argument, assuming that we find that there's a provision of the statute that allows review of the final determination before there's an issuance of an order?

[00:53:05] Speaker 04:
Sure, Your Honor.

[00:53:06] Speaker 04:
MedImmune is very different, and I'd like to drill down on that answer if I could.

[00:53:12] Speaker 04:
In MedImmune, the Supreme Court held that a party

[00:53:17] Speaker 04:
who pays royalties when faced with an enforcement demand does not vitiate their own standing to challenge the underlying patent.

[00:53:27] Speaker 04:
This is because while the party's payment eliminated the potential for violating the law, the party is still paying the money that they claim they shouldn't have to pay.

[00:53:38] Speaker 04:
That's a concrete traceable harm.

[00:53:40] Speaker 08:
That's what they're saying here, too, that we're paying money under the 2019 agreement that we shouldn't have to pay.

[00:53:48] Speaker 04:
Well, actually, Your Honor, there's apples and oranges here.

[00:53:53] Speaker 04:
That is a question of

[00:53:57] Speaker 04:
what they're doing under the 2019 suspension agreement.

[00:54:01] Speaker 04:
But what we are talking about is the justiciability of a challenge to the subsequent final determination from the continued investigation.

[00:54:09] Speaker 04:
Those are two different things.

[00:54:11] Speaker 04:
As my colleague, Mr. Kupura, alluded.

[00:54:13] Speaker 08:
But if they succeed on the challenge to the final anti-dumping determination, under the statute, if there's no dumping margin, there's an automatic termination of the agreement.

[00:54:26] Speaker 08:
And even if not, they can still then make their choice to terminate the agreement on their own and escape the payments that they have to make under the 2019 agreement, right?

[00:54:42] Speaker 04:
Sure, Your Honor.

[00:54:42] Speaker 04:
But the difference with MedImmune is, MedImmune explains that when the government is involved, MedImmune says that a party complying with a law can still sue to challenge it.

[00:54:54] Speaker 04:
You don't have to violate

[00:54:56] Speaker 04:
the law to be able to sue.

[00:54:58] Speaker 04:
A threat of government enforcement is enough.

[00:55:01] Speaker 04:
But in this case, the key difference, Your Honor, is we don't have any... There's no government enforcement in MedImmune.

[00:55:08] Speaker 08:
In fact, the Supreme Court in MedImmune said there wasn't and said this was a private dispute.

[00:55:14] Speaker 04:
That's right, Your Honor, but... It's different from government cases.

[00:55:19] Speaker 04:
Right.

[00:55:19] Speaker 04:
There was a discussion of government cases and private cases.

[00:55:22] Speaker 04:
So I'm taking the discussion of the government cases

[00:55:26] Speaker 04:
uh... from metamune and we we have none of those things metamune was talking about in those government enforcement cases there's no demand for payment pursuant to the final determination there's no payment of anti-dumping duties no one has to comply with the final determination at this time so it's a Hobbesian choice between complying with the final determination uh...

[00:55:56] Speaker 04:
or coming into court and suing.

[00:56:01] Speaker 04:
They don't have to do either.

[00:56:04] Speaker 04:
No one has to comply.

[00:56:05] Speaker 02:
This is Judge Gerando, but I guess I keep coming back to the question, why isn't this as simple as they allege, highly plausibly, that they would be better off if

[00:56:21] Speaker 02:
They, one, they're challenged to the final determination because under the governing legal standards that would enable them to get out from an unduly burdensome current monetary obligation.

[00:56:34] Speaker 02:
Why is that insufficient for Article 3?

[00:56:38] Speaker 04:
There's no nexus.

[00:56:40] Speaker 04:
There's no connection between those two things.

[00:56:44] Speaker 04:
There is no obligation for a current financial obligation.

[00:56:48] Speaker 04:
No one is paying

[00:56:50] Speaker 04:
cash deposits or duties based on the final determination.

[00:56:54] Speaker 08:
They're paying duties under, they're paying effectively duties under the 2019 agreement.

[00:57:01] Speaker 04:
No, no, Your Honor.

[00:57:02] Speaker 04:
Actually, Your Honor, if I could, the suspension agreement simply establishes.

[00:57:09] Speaker 08:
It's setting prices.

[00:57:11] Speaker 04:
It's reference prices.

[00:57:12] Speaker 04:
That's right.

[00:57:13] Speaker 04:
So they're charging more.

[00:57:15] Speaker 08:
That injures them.

[00:57:17] Speaker 04:
their chart right and if they wanted to challenge the twenty nineteen suspension agreement through a duress theory or otherwise uh... as my colleague mister cupra indicated that claim is untimely and as much albies it it elaborated that claim had to be brought within thirty days the publication of the suspension agreement and the only party even attempted

[00:57:45] Speaker 04:
to challenge the 2019 agreement is Cotty's.

[00:57:48] Speaker 04:
And they brought their initial suit, 19-203, in the trade court two months after the publication of the 2019 suspension agreement.

[00:58:03] Speaker 04:
It's untimely.

[00:58:04] Speaker 04:
There is no timely challenge to the 2019 suspension agreement before the court.

[00:58:12] Speaker 04:
And this, of course,

[00:58:13] Speaker 04:
dovetails into the mootness issue as well, if you don't have a timely challenge to the 2019 agreement through duress or anything else, then the 2019 agreement stands unless and until a party decides to terminate.

[00:58:32] Speaker 04:
And so regardless of the issues raised related to the 2013 withdrawal, we still have the 2019 agreement.

[00:58:41] Speaker 04:
There's no relief that

[00:58:43] Speaker 04:
or jurisdiction that the trade court would possess to award any relief relative to 2019.

[00:58:50] Speaker 04:
And so what's left of 2013?

[00:58:53] Speaker 04:
That's the mootness arguments that Mr. Kapur advanced.

[00:58:58] Speaker 04:
Now these plaintiffs are eager for an advisory opinion on the final determination, but their claims of harm are totally hypothetical and speculative.

[00:59:10] Speaker 04:
They speculate that if

[00:59:13] Speaker 04:
The 2019 agreement is terminated.

[00:59:17] Speaker 04:
And if the parties fail to achieve a new suspension agreement, then an anti-dumping duty order would issue.

[00:59:25] Speaker 04:
And then the final determination would calculate the cash deposits and duties that would be assessed.

[00:59:33] Speaker 04:
But that's pure speculation now, especially given that the parties have had a long history going back 25 years of entering into one suspension agreement after another.

[00:59:43] Speaker 04:
And as Katie's admits in their reply brief at page 22, that is, quote, a day that may never come, unquote.

[00:59:53] Speaker 00:
Well, this is Judge Proce.

[00:59:56] Speaker 00:
This may have lied into our third issue.

[00:59:58] Speaker 00:
But what is your response to the argument that if they waited until the anti-dumping order issue, they would be untimely?

[01:00:08] Speaker 00:
Then you would be in here saying, making the cousin of the argument you're making here, that they didn't appeal in time.

[01:00:15] Speaker 04:
No, Your Honor.

[01:00:16] Speaker 04:
They've misconstrued the statute and will obviously drill down to that on that issue in issue three.

[01:00:23] Speaker 04:
But we will readily concede that once an anti-dumping duty order issues, if it ever issues,

[01:00:33] Speaker 04:
That would be the time and they would be free to challenge any and all aspects of the final determination at that time in accordance with the statute, as long as they brought their challenge within a timely fashion after the issuance of the dumping order.

[01:00:51] Speaker 08:
Okay.

[01:00:52] Speaker 08:
Anything further?

[01:00:55] Speaker 04:
Sure, your honor.

[01:00:55] Speaker 04:
So because at this time,

[01:00:59] Speaker 04:
There's no concrete harm, no actual or imminent harm.

[01:01:03] Speaker 04:
None was identified flowing from the final determination that applies to no one, causes no one any enforcement obligations.

[01:01:16] Speaker 04:
There's no threat of enforcing that final determination against anyone at this time.

[01:01:23] Speaker 04:
There's no injury in fact flowing from the final determination.

[01:01:27] Speaker 04:
and the plaintiff's claims are not justiciable.

[01:01:31] Speaker 04:
Thank you.

[01:01:32] Speaker 08:
Okay, thank you.

[01:01:33] Speaker 08:
Ms.

[01:01:33] Speaker 08:
Alves.

[01:01:37] Speaker 01:
Thank you, Your Honor.

[01:01:38] Speaker 01:
I want to make just a couple of quick points.

[01:01:42] Speaker 01:
At one point, Mr. Durling had suggested that the final determination is already in effect.

[01:01:50] Speaker 01:
Under the statute, 19 U.S.D.

[01:01:52] Speaker 01:
1673 C.F.

[01:01:54] Speaker 01:
3B,

[01:01:55] Speaker 01:
The final determination is not in effect while the suspension agreement is in effect.

[01:02:01] Speaker 01:
And so therefore I also then concur with Mr. Edelstein that in fact there are no duties that currently apply.

[01:02:08] Speaker 01:
And in fact that's one of the benefits that the Mexican respondents have right now is they're trying to litigate the dumping margins that they would face if and when there is an anti-dumping duty order.

[01:02:24] Speaker 01:
while the suspension agreement is in effect so that they don't have to pay duties during that period.

[01:02:31] Speaker 01:
In fact, in its brief, the apartheid went even further.

[01:02:36] Speaker 01:
They said that Mexican exporters may or may not decide that it makes sense to remain in the agreement if the dumping margins were set in a lawful manner.

[01:02:50] Speaker 01:
And that's in their opening brief at page 49.

[01:02:53] Speaker 01:
So basically what they're saying is, well, we'd like to see what all of the options are.

[01:02:58] Speaker 01:
We don't want to have to pay any duties right now.

[01:03:00] Speaker 01:
We like the suspension agreement in that sense.

[01:03:03] Speaker 01:
But we'd like to be able to challenge the final determination now so we know what margins we're going to face.

[01:03:09] Speaker 01:
And then we'll decide.

[01:03:11] Speaker 01:
whether or not we want to keep the suspension agreement in place or we might withdraw at that point because we might.

[01:03:16] Speaker 02:
So you're saying like you're sort of conveying the idea as if it were a perfectly self-evident point that that's somehow an improper posture to take.

[01:03:31] Speaker 02:
Why in the world is that improper?

[01:03:34] Speaker 01:
It's improper because under the statute, the statute sets forth a logical sequence

[01:03:40] Speaker 01:
of timing.

[01:03:41] Speaker 01:
They actually had an opportunity to challenge the final determination after commerce issued the final determination if they had not already entered into the suspension agreement.

[01:03:56] Speaker 01:
But under the terms of the statute, because the suspension agreement is in effect, the final determination is not in effect and therefore they have to wait until the order goes into place.

[01:04:08] Speaker 01:
On the other hand, their ability to challenge the final determination is not extinguished.

[01:04:13] Speaker 01:
They have that ability if and when they choose to terminate the suspension agreement or it otherwise terminates for some other reason.

[01:04:20] Speaker 08:
That's all getting into the statutory argument which is the next issue.

[01:04:25] Speaker 08:
The question is, if the statute provides an avenue for them to challenge the final determination now,

[01:04:34] Speaker 08:
In fact, there is a case or controversy.

[01:04:37] Speaker 08:
It's not an Article 3 problem, right?

[01:04:39] Speaker 01:
The problem is right now there is no opportunity for them to challenge that.

[01:04:46] Speaker 08:
But assuming that the statute provides an opportunity, there's no Article 3 problem, right?

[01:04:55] Speaker 01:
The statute does eventually provide them with an opportunity after an anti-dumping duty.

[01:05:00] Speaker 08:
You're not answering my question.

[01:05:02] Speaker 08:
Hypothetically, let's assume that the statute provides an avenue for challenging the final determination now.

[01:05:09] Speaker 08:
There is no Article III problem, right?

[01:05:13] Speaker 01:
If the statute allowed them to challenge now, correct.

[01:05:17] Speaker 01:
There's no Article III problem, but the statute does not.

[01:05:24] Speaker 08:
OK, anything further?

[01:05:26] Speaker 01:
I also wanted to respond to your question about the applicability of medimmune.

[01:05:34] Speaker 01:
Medimmune is not at all applicable here because this is the situation where I agree with Mr. Edelschick.

[01:05:42] Speaker 01:
The respondents had choices.

[01:05:43] Speaker 01:
They had a choice to appeal the final determination and not enter into the suspension agreement, or they had an opportunity to enter into the suspension agreement, which they took.

[01:05:55] Speaker 01:
So this is not a situation where they did not have an option to appeal.

[01:06:03] Speaker 01:
Moreover, there's an elaborate statutory scheme here that Mr. Durling was ignoring.

[01:06:09] Speaker 01:
He kept referring to injury to the Mexican respondents, the notion that they had to either be subject to the suspension agreement or to an anti-dumping duty order.

[01:06:21] Speaker 01:
But this is a remedial statute.

[01:06:23] Speaker 01:
That is the point of the statute.

[01:06:25] Speaker 01:
They were found to be dumping by the Department of Commerce and in both its preliminary determination and in its final determination, the U.S.

[01:06:36] Speaker 01:
International Trade Commission found injury.

[01:06:38] Speaker 01:
In those circumstances, the domestic industry isn't.

[01:06:46] Speaker 08:
I see my time is expired.

[01:06:50] Speaker 08:
Mr. Durling will give you two minutes if you have anything further to say.

[01:06:55] Speaker 03:
Just a few, three brief points.

[01:06:57] Speaker 03:
First, on the issue of paying money and whether that's a distinction with MedImmune, being forced to pay higher prices is an analogous form of injury.

[01:07:08] Speaker 03:
The dumping margins and the final determination and the reference prices in the suspension agreement are really two sides of the same coin, because the reference prices are being set based on the dumping margins that were found and the dumping margins were

[01:07:21] Speaker 03:
impermissible from our perspective.

[01:07:23] Speaker 03:
They were unreasonably high.

[01:07:25] Speaker 03:
That's the second point.

[01:07:26] Speaker 03:
The reference prices as reflected in the dumping margin

[01:07:31] Speaker 03:
the dumping margins were too high.

[01:07:33] Speaker 03:
Yes, this is a remedial statute, but the remedy can only be extended as far as there is a reasonable basis for setting those dumping margins.

[01:07:42] Speaker 03:
Our core allegation is the 2019 final determination set impermissible dumping margins, and that's what's causing the current injury in fact.

[01:07:52] Speaker 03:
And then finally, whether that final dumping determination is still in effect, it absolutely is in effect,

[01:07:59] Speaker 03:
It was finalized, right?

[01:08:02] Speaker 03:
I direct the court to Bennett v. Spear where Justice Scalia was commenting on when to think of an agency action as being final and he basically said the agency action is final when legal consequences will flow.

[01:08:16] Speaker 03:
There are legal consequences flowing from the final determination.

[01:08:20] Speaker 03:
The dumping margins in that final determination is right now being used in compliance reviews to see whether the Mexican exporters are in compliance or whether they're going to be subject to penalties under the terms of the suspension agreement.

[01:08:37] Speaker 03:
Ongoing proceedings, preliminary determination was already made.

[01:08:40] Speaker 03:
Final determination is imminent at the end of January.

[01:08:44] Speaker 03:
This final determination is real.

[01:08:47] Speaker 03:
It is concrete.

[01:08:48] Speaker 03:
It is having immediate consequences.

[01:08:51] Speaker 03:
And for all those reasons, we think there is a sufficient injury in fact to allow for a currently cognizable legal dispute.

[01:09:00] Speaker 03:
Thank you.

[01:09:03] Speaker 08:
Okay.

[01:09:03] Speaker 08:
Thank you.

[01:09:05] Speaker 08:
That concludes our argument on issue number two.

[01:09:07] Speaker 08:
With respect to issue number three, we'll hear from Mr. Wynton.

[01:09:12] Speaker 09:
Thank you.

[01:09:13] Speaker 09:
This is Jeffrey Winton, Council of the Bioparkase Group, which is your case numbers 22, 65, 66, and 67.

[01:09:21] Speaker 09:
The issue whether the jurisdictional provisions of the statute require us to wait until the anti-dumping order is published.

[01:09:31] Speaker 09:
The statute is absolutely clear on this.

[01:09:34] Speaker 09:
Not only are we not... Nothing about this statute is absolutely clear.

[01:09:40] Speaker 09:
Well, I would say it's complicated, but it's not unclear.

[01:09:45] Speaker 09:
And you just need to parse through the provisions.

[01:09:48] Speaker 09:
When we sat down to prepare our appeals back in 2019, that's what we did, and we puzzled.

[01:09:55] Speaker 09:
Which is this?

[01:09:56] Speaker 09:
Is this a 2BI, an appeal of a final determination, or is it a 2B4, which is an appeal of a suspension agreement, including any final determinations,

[01:10:07] Speaker 09:
in the continued investigation.

[01:10:09] Speaker 09:
And we said it could be either, so we've filed appeals under both provisions.

[01:10:14] Speaker 08:
As I understand it, you're basically relying on three provisions here as giving jurisdiction.

[01:10:20] Speaker 08:
One is this IV provision with the including language.

[01:10:25] Speaker 08:
Another one is NAFTA provision and the general residual provision, correct?

[01:10:32] Speaker 08:
Right.

[01:10:33] Speaker 09:
And the argument that we have to wait for the any dumping order is based on the premise, first of all, that the... Wait, wait.

[01:10:41] Speaker 08:
Before you get to that, tell us where we have jurisdiction.

[01:10:46] Speaker 08:
And then we'll worry about the timing issue.

[01:10:50] Speaker 08:
Sure.

[01:10:51] Speaker 08:
So the jurisdiction... Where the CIT has jurisdiction.

[01:10:55] Speaker 09:
Right.

[01:10:55] Speaker 09:
The CIT has jurisdiction under...

[01:10:58] Speaker 09:
28 USC 1581, which says, I think it's C, says that any action described in 1516A, the court has jurisdiction over.

[01:11:09] Speaker 09:
And so that handles the first two theories of jurisdiction.

[01:11:13] Speaker 09:
And then the third theory is 1581I, residual jurisdiction.

[01:11:19] Speaker 09:
So the question is, is this an action described in 1516A?

[01:11:22] Speaker 09:
If it is, then the CIT has jurisdiction under

[01:11:26] Speaker 09:
1581C, and if it's not described in that, then it falls under the residual jurisdiction of 1581I.

[01:11:35] Speaker 09:
If you then start going through the procedures, you know, the 1516A language, which is this, is this the final determination in an investigation?

[01:11:48] Speaker 09:
And the government says no, it's something different because it's a continued investigation suspension agreement.

[01:11:55] Speaker 09:
That's not a final determination.

[01:11:57] Speaker 09:
under 1673D, or whatever the tariff act provision is, 775, whatever.

[01:12:04] Speaker 09:
They say that's not a final determination under 1673D.

[01:12:10] Speaker 09:
But that's actually flatly wrong, because the statute itself says that the determination of continued investigation is a final determination under 1673D.

[01:12:20] Speaker 08:
Now, we're talking about your NAFTA argument.

[01:12:24] Speaker 08:
No, well, yes, this isn't the NAFTA argument.

[01:12:29] Speaker 08:
Is the argument that 1516A G3A1 is the provision that gives jurisdiction?

[01:12:41] Speaker 09:
Give me a second.

[01:12:43] Speaker 09:
G.

[01:12:56] Speaker 09:
G3.

[01:13:02] Speaker 09:
No.

[01:13:03] Speaker 09:
No.

[01:13:04] Speaker 09:
Yes.

[01:13:05] Speaker 09:
Yes.

[01:13:05] Speaker 09:
I'm sorry.

[01:13:05] Speaker 09:
Yes.

[01:13:08] Speaker 09:
Yes.

[01:13:08] Speaker 09:
In the sense that 1516G would deprive the court of jurisdiction.

[01:13:16] Speaker 09:
But G3 says there's been no NAFTA panel appeal.

[01:13:20] Speaker 09:
So then we're thrown back into 1516A5, which sets the deadline for appealing a determination under that.

[01:13:31] Speaker 08:
Forget about the deadline.

[01:13:33] Speaker 08:
We've got to find a provision that gives jurisdiction.

[01:13:37] Speaker 08:
Right.

[01:13:39] Speaker 08:
It has to be 1516G3AI, aside from the including provision, right?

[01:13:46] Speaker ?:
Right.

[01:14:00] Speaker 09:
G3I, yes.

[01:14:02] Speaker 09:
The determination is reviewable under subsection A if the determination is subject to be reviewed as a determination as to which no one is requested FTA review.

[01:14:09] Speaker 09:
So yes, that makes this decision reviewable under 1516A, A. And then we fall under, on the NAFTA theory, 2A2BI, which is a final determination.

[01:14:27] Speaker 09:
If this were not a NAFTA case,

[01:14:30] Speaker 09:
We would have to wait until the anti-dumping order was published to pursue an appeal of a determination under 2BI because that's what the statute says.

[01:14:40] Speaker 09:
But it says if it's a NAFTA case, that doesn't apply.

[01:14:43] Speaker 09:
There's a different deadline which is you have to wait 30 days and then you have 30 days to commence your appeal.

[01:14:49] Speaker 09:
That's A5.

[01:14:51] Speaker 09:
And so that's our NAFTA theory and it follows the statute.

[01:14:54] Speaker 09:
If we were to wait for the anti-dumping order to be published,

[01:14:58] Speaker 09:
We would not be complying with A5.

[01:15:01] Speaker 09:
We'd be out of time.

[01:15:02] Speaker 09:
And then we run out of, you know, the court, we fail the statute of limitations, which is set forth in, it is complicated, 28 U.S.C.

[01:15:13] Speaker 09:
2636, which says a civil action contentional reviewable determination in section 516 is barred unless commenced within the time specified in that section.

[01:15:26] Speaker 09:
So we have to file our appeal within the time specified in 1516A, which because this is a NAFTA country, to the extent that this is a determination reviewable under NAFTA, we fall under the A5 deadlines, which is the 31 to 60 days.

[01:15:43] Speaker 09:
We could not wait for the end of dumping order.

[01:15:46] Speaker 09:
The second theory of jurisdiction is that this is a determination and a continued investigation.

[01:15:54] Speaker 09:
after suspension agreement and that's a 2B4.

[01:16:00] Speaker 09:
And the deadline for filing a 2B4 appeal is.

[01:16:04] Speaker 08:
Why does this fall under 2B4?

[01:16:06] Speaker 08:
That sounds like a provision that's designed to enable someone who's a domestic producer to challenge the decision to suspend the investigation.

[01:16:22] Speaker 08:
Isn't that the legislative history of the provision?

[01:16:25] Speaker 08:
Am I mistaken?

[01:16:27] Speaker 09:
Well, the language says what it says.

[01:16:29] Speaker 09:
And it says you can challenge the suspension agreement including any determination.

[01:16:34] Speaker 08:
Well, why would someone who's subject to the suspension agreement be challenging the suspension agreement?

[01:16:40] Speaker 09:
Well, but we're not.

[01:16:43] Speaker 09:
We are challenging the final determination.

[01:16:46] Speaker 09:
And as the plain language of four says, we can challenge a final determination.

[01:16:52] Speaker 09:
in a continued investigation.

[01:16:53] Speaker 09:
That's what the language says.

[01:16:55] Speaker 09:
And if you, you know, read it out as the Court of International Trade has wanted to do, so why would Congress put that in?

[01:17:02] Speaker 09:
I could see saying you can challenge a suspension agreement, period, right?

[01:17:08] Speaker 09:
That would be one approach.

[01:17:10] Speaker 09:
And then I couldn't claim I have jurisdiction.

[01:17:12] Speaker 09:
What is this additional language add here, you know, challenging a suspension agreement,

[01:17:18] Speaker 09:
The purpose of this language, there must be some purpose to this language and it's really the only possible purpose is that you get to appeal the final determination if it's a continued investigation.

[01:17:29] Speaker 09:
What else could this language mean?

[01:17:31] Speaker 09:
The notion that somehow the suspension agreement might include the subsequent final determination is logically impossible because the suspension agreement is always negotiated

[01:17:42] Speaker 09:
before you even know the investigation is going to be continued.

[01:17:46] Speaker 09:
So what possible sense could this mean?

[01:17:48] Speaker 09:
The only way this language makes sense is if you say Congress intended that you be able to appeal both the suspension agreement and any final determination to continue the investigation, and that you should do that on a different schedule than if it were, say, a determination leading to an order.

[01:18:07] Speaker 09:
And one reason may be quite obvious.

[01:18:10] Speaker 09:
In a normal case, you have a determination.

[01:18:12] Speaker 09:
The order is, you know, two months later.

[01:18:14] Speaker 09:
You have the commerce determination 45 days later, the ITC determination, and then like a week later, the order.

[01:18:21] Speaker 09:
So there's not that long a period.

[01:18:23] Speaker 09:
But with the suspension agreement, there can be a very long period.

[01:18:27] Speaker 09:
As we've seen, it may be never between the determination and the anti-dumping order.

[01:18:31] Speaker 09:
And therefore, it makes sense to allow you to bring the challenges to the determination more quickly, which is what Congress has enacted.

[01:18:40] Speaker 02:
But also say there's an argument here that... Mr. Wynton, this is Judge Toronto.

[01:18:48] Speaker 02:
Can I just double check something?

[01:18:50] Speaker 02:
Am I right in thinking that, I guess it's under 1673 CG, both domestics and

[01:19:05] Speaker 02:
exporters, if the exporters account for a significant portion of exports, have the statutory right to request continuation even after a suspension agreement is entered into?

[01:19:19] Speaker 09:
Yes, I believe that's right and, you know, that would have given us, yes, I believe that's right.

[01:19:26] Speaker 09:
I would need to double check the statute which I don't have.

[01:19:29] Speaker 02:
Does that have any implications for an understanding about whether Congress understood or didn't understand or expected that parties to the suspension agreement would be among those who would be requesting continuation because the result of the continuation would matter to them even while the suspension agreement is in effect?

[01:19:57] Speaker 09:
Yes, I think that's right.

[01:19:59] Speaker 09:
But Judge Toronto, I think you got my client's position exactly right.

[01:20:04] Speaker 09:
We challenged the termination of the agreement.

[01:20:07] Speaker 09:
We think the whole thing was unlawful and ultra-various.

[01:20:10] Speaker 09:
But beyond that, we think we're entitled to look at this and say, what were the real dumping margins here?

[01:20:17] Speaker 09:
What were the real dumping margins here?

[01:20:19] Speaker 09:
And then to make a decision how to move forward, because we feel that we're harmed.

[01:20:23] Speaker 09:
And my client,

[01:20:24] Speaker 09:
is the one who's really exposed because our dumping margin is 10% higher than anybody else's.

[01:20:30] Speaker 09:
But beyond that, we want a properly calculated dumping margin.

[01:20:35] Speaker 09:
And then we think we're harmed by being forced into a suspension agreement.

[01:20:39] Speaker 09:
And if the dumping margin were lower, it might be de minimis.

[01:20:42] Speaker 09:
We might be out of this case.

[01:20:43] Speaker 09:
It might be low enough that we say, having a dumping order

[01:20:48] Speaker 09:
is better than having to live with the suspension agreement.

[01:20:51] Speaker 09:
And so going back to it, it's not my statutory argument, but on the harm issue, we feel that we are harmed, obviously harmed here.

[01:21:02] Speaker 09:
I don't know.

[01:21:02] Speaker 09:
I heard a beep.

[01:21:03] Speaker 09:
I don't know if that means my time is up.

[01:21:05] Speaker 09:
It's many different beeps.

[01:21:09] Speaker 09:
I would add, if I can, there's a notion that

[01:21:14] Speaker 09:
the statute disfavors appeals before there's an anti-dumping order.

[01:21:19] Speaker 09:
That in the absence of the anti-dumping order, the statute just doesn't allow appeals.

[01:21:23] Speaker 09:
That is also flatly wrong because if you look at, and it's not directly relevant here, but 1516A3 talks about situations where the ITC finds no injury.

[01:21:36] Speaker 09:
Commerce finds dumping, the ITC finds no injury, and the statute explicitly says you can appeal in that situation.

[01:21:43] Speaker 09:
So from a statutory point of view, it's clear Congress did not think you always have to wait for an anti-dumping order to be published.

[01:21:52] Speaker 09:
And in fact, in the NAFTA context, we cannot wait until the anti-dumping order is published because then our appeal would be untimely.

[01:22:03] Speaker 09:
I don't know.

[01:22:04] Speaker 09:
I can keep walking through this, but maybe it'd be better to save my time unless there are questions.

[01:22:13] Speaker 08:
Okay, hearing none, thank you, Mr. Wynton.

[01:22:16] Speaker 08:
Mr. Edelschick?

[01:22:18] Speaker 04:
Thank you, Your Honor.

[01:22:19] Speaker 04:
Doug Edelschick, Department of Justice.

[01:22:21] Speaker 04:
I'd like to start out with just a point of agreement.

[01:22:25] Speaker 04:
I agree with Mr. Wynton that the final determination at issue is a final determination resulting from a continued investigation under B4 of the statute, 1516A.

[01:22:40] Speaker 04:
So we're talking about a B4 determination.

[01:22:45] Speaker 04:
And why does that matter?

[01:22:47] Speaker 04:
Well, it matters because the new NAFTA provisions, the USMCA provisions in subsection G of the statute don't apply to final determinations from a continued investigation under B4.

[01:23:05] Speaker 04:
Under 1516A, subsection G1

[01:23:11] Speaker 04:
B, the statute defines determinations that are subject to those NAFTA provisions, which alter the timing and whatnot.

[01:23:22] Speaker 04:
And the definition of what let's call it a NAFTA determination, a determination that's subject to these NAFTA provisions, it includes

[01:23:33] Speaker 04:
B1 determinations, B2, B3, B6, and B7 determinations.

[01:23:39] Speaker 04:
It does not include B4 determinations.

[01:23:42] Speaker 04:
And so that is why none of the NAFTA provisions apply in this case.

[01:23:50] Speaker 04:
So we're back under.

[01:23:51] Speaker 08:
What about 1516A G3A1?

[01:23:57] Speaker 04:
I'm sorry, Your Honor.

[01:23:58] Speaker 04:
Could you give me that subsection again, please?

[01:24:00] Speaker 08:
1516A.

[01:24:02] Speaker 08:
G3A1.

[01:24:07] Speaker 04:
Right.

[01:24:07] Speaker 04:
That would not apply because those are, that's using the term determination.

[01:24:12] Speaker 04:
Yeah.

[01:24:13] Speaker 04:
And determination is defined as only those B1, 2, 3, 6, and 7 determinations.

[01:24:22] Speaker 04:
Yeah.

[01:24:23] Speaker 04:
Not a B4 determination.

[01:24:24] Speaker 08:
No, no, no, no.

[01:24:25] Speaker 08:
We're not, I'm not talking about the including provision.

[01:24:28] Speaker 08:
I'm not talking about B4 now.

[01:24:30] Speaker 08:
I'm asking a different question of whether under the NAFTA provisions, which say that if you don't go to the bilateral panel, you can get a determination under subsection A. Yes.

[01:24:47] Speaker 04:
That provision does not apply.

[01:24:49] Speaker 08:
Why not?

[01:24:51] Speaker 04:
That only applies to what I'll call NAFTA determinations.

[01:24:56] Speaker 04:
Those determinations that are described in G1

[01:25:02] Speaker 04:
And B4 determinations are not NAFTA determinations.

[01:25:06] Speaker 08:
No, you keep going to B4.

[01:25:08] Speaker 08:
I'm not talking about B4.

[01:25:09] Speaker 08:
Forget about B4.

[01:25:12] Speaker 08:
There are two separate theories here.

[01:25:15] Speaker 08:
They have a theory that 1516G3Ai, or 1, is an additional avenue to review, which is not dependent on falling within 4.

[01:25:33] Speaker 04:
That is not correct, Your Honor.

[01:25:36] Speaker 04:
I understand your question.

[01:25:37] Speaker 04:
Their argument is not correct, Your Honor, because the provision you just cited, G3A1, uses the term determination, which is a defined term in subsection G.

[01:25:58] Speaker 04:
And their, this determination, a final determination from a continued investigation is not a NAFTA determination for purposes of subsection G. Go ahead, Judge Toronto, you had a question?

[01:26:11] Speaker 02:
Yeah, I thought what I was hearing from Mr. Winton is that if you start with this G3A1, which does refer to a determination, on that theory, this is a 1516A,

[01:26:27] Speaker 02:
to B1 case, not a B4 case.

[01:26:31] Speaker 02:
And B1 is included in the definition of determination under G1.

[01:26:40] Speaker 04:
It would be, but this is not a garden variety B1 determination.

[01:26:47] Speaker 02:
I think he agreed that this was not a garden variety one, but he said it is an after one.

[01:26:56] Speaker 08:
Is your theory that this is not a final determination under 1673D?

[01:27:05] Speaker 08:
Is that your theory?

[01:27:07] Speaker 04:
Not under B1.

[01:27:08] Speaker 04:
It's a B4 determination.

[01:27:11] Speaker 08:
Forget about B4.

[01:27:13] Speaker 08:
We're not talking about B4.

[01:27:17] Speaker 04:
Well, actually, Your Honor, respectfully,

[01:27:21] Speaker 04:
We are, B4 talks about final determinations resulting from a continued investigation.

[01:27:27] Speaker 04:
That is exactly.

[01:27:28] Speaker 08:
Please stop talking about B4.

[01:27:30] Speaker 08:
We're not talking about B4.

[01:27:32] Speaker 08:
There's an alternative route to jurisdiction that they have argued, which has nothing to do with B4.

[01:27:39] Speaker 08:
And we're trying to ask you as to why that alternative theory is not correct.

[01:27:44] Speaker 04:
Right.

[01:27:45] Speaker 04:
And it goes back to the structure of the statute, if I could, Your Honor, explain.

[01:27:52] Speaker 04:
Under B1 determinations are your garden variety, final determinations, final affirmative determinations.

[01:28:06] Speaker 04:
And those the statute teaches are reviewed

[01:28:12] Speaker 04:
in conjunction under 2A I Roman.

[01:28:18] Speaker 08:
Why is this not a determination under B1, final affirmative determination by the administrative authority under 1673D?

[01:28:30] Speaker 08:
Why is that not within that language?

[01:28:34] Speaker 04:
Because those are determinations that those types of determinations are those final determinations that are

[01:28:42] Speaker 04:
issued in conjunction with an anti-dumping duty order.

[01:28:45] Speaker 04:
If we look at the structure of overlapping related statutory provisions within A2, we have B1 talks about your final affirmative determinations, and the statute elaborates that under 2A little i Roman 2,

[01:29:11] Speaker 04:
Those final determinations that are talked about in B1 are reviewed in the context of an anti-dumping or countervailing duty order that's issued in tandem.

[01:29:29] Speaker 08:
Why is it not a determination that falls under B1?

[01:29:33] Speaker 04:
It is not, because this is a more specific type of final language.

[01:29:40] Speaker 08:
Read the section.

[01:29:41] Speaker 08:
Tell me what language excludes it.

[01:29:46] Speaker 04:
My argument, Your Honor, is based on the structure of a number of provisions.

[01:29:54] Speaker 04:
Specifically, I know you didn't want to hear about it, Judge Dyke, but B4 talks about this specific type of final determination, a final determination resulting from a continued investigation.

[01:30:09] Speaker 04:
That is different.

[01:30:10] Speaker 04:
It's specifically identified as a B4 determination.

[01:30:17] Speaker 04:
A B1 determination, in contrast, is a determination that is reviewed in conjunction with an anti-dumping or countervailing duty order under 2A2A1R2.

[01:30:34] Speaker 04:
So there are different scenarios.

[01:30:37] Speaker 04:
One is in the typical garden variety scenario, where you have a final determination and an anti-dumping duty order issue at the same time.

[01:30:48] Speaker 04:
B4 talks about final determinations in the context of suspension agreements.

[01:30:53] Speaker 08:
When there is a final.

[01:30:54] Speaker 08:
So the fairness says that then you have no argument based on the language of B1 as to why this doesn't fall under B1.

[01:31:06] Speaker 04:
I would not agree with that, Your Honor, because my argument is based on the language of the statute in context of other statutory provisions that are right next to it.

[01:31:17] Speaker 08:
Specifically to tell me, is there any language in B-1 that excludes this determination?

[01:31:25] Speaker 04:
Not exclusively in B-1 standing alone, no.

[01:31:32] Speaker 04:
Cannons of statutory construction require us to construe the statute as a whole in context with other related provisions.

[01:31:39] Speaker 04:
And right next door to that provision is two provisions.

[01:31:46] Speaker 04:
One that says how you obtain review of B1 determinations, and that's done in conjunction with an anti-dumping or countervailing duty order.

[01:31:55] Speaker 04:
That's not our situation.

[01:31:57] Speaker 04:
There's also, on the other side of the house, right next door in B4, specific provisions that pertain to final determinations resulting from a continued investigation.

[01:32:12] Speaker 04:
And that's exactly what our situation is.

[01:32:16] Speaker 02:
And when you have the statute... Can I just ask you, this is Judge Toronto, did you have an argument, I don't think you've at least yet made it this morning,

[01:32:26] Speaker 02:
that a final determination resulting from a continued investigation is not made under 1673D.

[01:32:39] Speaker 02:
Something about the language of either 1673C or 1673D would make that true, putting aside your argument about an implication of the related parts within 1516A.

[01:32:57] Speaker 04:
I'm sorry, Your Honor, I'm trying, but I'm not sure I followed your question.

[01:33:01] Speaker 02:
Okay, so put aside your argument about the structure of 1516A, in which you make an argument about the relation of the various parts under A to A and A to B and inside A to B of little i and little iv.

[01:33:24] Speaker 02:
Put that completely to one side and focus just on the language of BI, the one that says final affirmative determinations made under 735 this act, which is 1673 D. Now turn to 1673 D.

[01:33:41] Speaker 02:
Is there language in 1673D or the provision that comes immediately before 1673C that says when there is a continuation of the investigation and that results in a final determination, that particular final determination doesn't come within 1673D?

[01:34:03] Speaker 02:
Or do you accept that that does come within 1673D?

[01:34:08] Speaker 04:
I'm not aware of any language in 1673D that would speak to this, but I believe that Commerce's final determination from the continued investigation in this case specifically purports to be a final determination from the administrative authority under 1673C, not D. What about subsection

[01:34:39] Speaker 08:
1673CF3, which seems to say that it is determination under 1673D.

[01:34:51] Speaker 04:
You'll have to excuse me one moment, Your Honor, while I have to switch to that provision.

[01:35:12] Speaker 04:
So your question seems to F3, Your Honor.

[01:35:15] Speaker 08:
Specifically dealing with continued investigation, 1673 CF3.

[01:35:21] Speaker 08:
It seems to say that if there's a continuing investigation of the kind that we have here, that the final determination is one pursuant to 1673 D.

[01:35:44] Speaker 04:
That would be if it's a negative determination, it's under D. No, but the subsection B is dealing with an affirmative determination.

[01:35:56] Speaker 08:
It says, again, under such section, referring back to 1673D.

[01:36:06] Speaker 04:
I'll grant you, Your Honor, that the language of these various provisions

[01:36:14] Speaker 04:
is not entirely clear, but I would submit to Your Honor that given the structure of 1516A, which distinguishes between... You've got the specific and the general, right?

[01:36:34] Speaker 04:
You've got the general provision under B1 that talks about final determinations in general, and you've got the specific

[01:36:43] Speaker 04:
in B4 that talks about final determinations from a continued investigation.

[01:36:51] Speaker 04:
And under the normal scans of statutory construction, the specific should control over the general.

[01:37:04] Speaker 05:
Okay, anything further?

[01:37:06] Speaker 04:
Go ahead.

[01:37:10] Speaker 04:
Because the NAFTA provisions don't apply, the 1516A subsection A2 establishes two ways to obtain review.

[01:37:23] Speaker 04:
The first way is under AI Roman 2, which allows for review within 30 days after publication of a B1 determination, the second

[01:37:40] Speaker 04:
to the courthouse is a review under A little i Roman 1 which allows for review within 30 days after publication of a B4 determination.

[01:37:54] Speaker 04:
Because we're dealing with a B4 determination, that's the type of determination that is at issue here and in order to obtain that review,

[01:38:09] Speaker 04:
there needs to be a tandem challenge to the suspension agreement itself.

[01:38:16] Speaker 04:
The provisions in B4 provide that the review of a suspension agreement may include review of a final determination from a continued investigation.

[01:38:30] Speaker 04:
The key word in the statute is including.

[01:38:33] Speaker 04:
Congress provided that

[01:38:35] Speaker 04:
review of a final determination is included.

[01:38:37] Speaker 04:
It's a part of review of a suspension agreement.

[01:38:41] Speaker 02:
Can I just ask you this?

[01:38:42] Speaker 02:
This is, this is Jeff Turner.

[01:38:43] Speaker 02:
Can I ask you, how does the timing work?

[01:38:45] Speaker 02:
I mean, I, I assume that there will be a time gap and you know better than I, what the normal expected range of that time gap is between a suspension, which before refers to, and a final determination in a continuation after a suspension.

[01:39:02] Speaker 02:
Um,

[01:39:03] Speaker 02:
Do multiple B4 actions have to be filed and then they get merged?

[01:39:09] Speaker 02:
Or how does this work?

[01:39:11] Speaker 02:
I thought I recalled that part of Mr. Winton's argument, at least in his brief, was an argument to the effect that the timing rules provided for when you have to sue simply make it unreasonable to view B4 the way you do.

[01:39:27] Speaker 02:
So can you explain the timing rules?

[01:39:30] Speaker 04:
Sure.

[01:39:30] Speaker 04:
It's quite simple.

[01:39:32] Speaker 04:
a party must commence an action within 30 days of publication of the suspension agreement and if the party also wishes to challenge the final determination from the continued investigation all they have to do is amend their complaint to include that challenge as well or they could file a separate complaint in a timely fashion after

[01:40:01] Speaker 04:
and presumably consolidate the two actions.

[01:40:04] Speaker 04:
But either way, it's quite a simple matter.

[01:40:10] Speaker 04:
And it was Congress that established a nexus between challenges to suspension agreements and challenges to final determinations from continued investigations.

[01:40:24] Speaker 04:
But the plaintiffs want to essentially rewrite subsection B4

[01:40:29] Speaker 04:
to delete the word including to sever the connection between suspension agreements and final determinations and basically have the statute say or instead of including.

[01:40:40] Speaker 02:
And in your view if, so you laid out a scenario in which there are essentially two pleadings filed whether or not the second one is a separate action or an amended pleading.

[01:40:54] Speaker 02:
In your view a challenger

[01:40:59] Speaker 02:
If it did not file a timely CIT lawsuit to challenge, the suspension would have lost its right later, say 90 days later or 120 days later.

[01:41:15] Speaker 02:
If the final determination then in the continuation comes out at that point, there is no such right under B4 to challenge that.

[01:41:27] Speaker 02:
Is that your view?

[01:41:29] Speaker 04:
They've lost it for now, but not forever.

[01:41:32] Speaker 04:
If there is no timely challenge to the suspension agreement, as we have in this case, no one challenged the suspension agreement within 30 days of publication of the suspension agreement.

[01:41:46] Speaker 04:
So the statute would provide them with an ability to challenge now

[01:41:54] Speaker 04:
Within 30 days of the suspension agreement, they didn't avail themselves of that opportunity, but they still could challenge any and all aspects of the final determination if and when an anti-dumping duty order issues.

[01:42:10] Speaker 04:
And then they could obtain the normal review of that provision at that time.

[01:42:19] Speaker 04:
So it's not as if,

[01:42:24] Speaker 04:
they're out on their ear, they just have to wait.

[01:42:28] Speaker 04:
And they have to wait until a day that, as Katie's has admitted in their reply brief, it's a day that may never come.

[01:42:37] Speaker 02:
And that's... You understand this far better than I. So suppose the party, the exporter,

[01:42:49] Speaker 02:
enters into the suspension agreement and say the exporters together amount to a substantial share or significant share or whatever the term is.

[01:43:01] Speaker 02:
substantially all, and they say to themselves, suspension agreement seems okay, but it's really, and they would like to get a final determination, so they invoke the right to a continuation.

[01:43:14] Speaker 02:
The proceeding is then underway, and they think to themselves, well, whether we're unhappy with this suspension agreement will really depend on the result of that proceeding, which is going to get factored into the reference prices and so on.

[01:43:29] Speaker 02:
Um, and so we're going to file our action, um, to challenge the suspension agreement and hope it doesn't get adjudicated before the final determination is, um, is, uh, comes out.

[01:43:47] Speaker 02:
And so all the action is going to be.

[01:43:49] Speaker 04:
It would never, it would never be adjudicated that quickly.

[01:43:55] Speaker 04:
Normally, the final determination would issue in a month or so.

[01:44:03] Speaker 02:
But your view is Congress contemplated that as something exporters should be able to do.

[01:44:13] Speaker 04:
Yes, because even though the final determination is not being applied to anyone at this point,

[01:44:25] Speaker 04:
Um, the, there is essentially a boot and suspenders, uh, ability of a plaintiff to challenge both the suspension agreement and the final determination at the same time.

[01:44:39] Speaker 02:
So I guess, I guess I want to ask, ask the question if, if Congress contemplated that where the only substantive aspect of the challenge will be to the final determination and the continuation.

[01:44:52] Speaker 02:
Why would we read the statute to say that you have to challenge the suspension agreement as a mere formality to hold your place to challenge the only thing you really care about?

[01:45:04] Speaker 02:
Congress wanted them to be able to do that.

[01:45:07] Speaker 04:
Well, because I'm quite confident that Congress would not have intended to authorize parties to come into court to challenge a final determination that's

[01:45:22] Speaker 04:
not in effect and causes no one to pay anything.

[01:45:26] Speaker 02:
I'm sorry, I thought you just agreed that B4 does provide for that as long as you've put in a placeholder CIT action on the suspension.

[01:45:36] Speaker 04:
Yes, yes indeed.

[01:45:37] Speaker 04:
So B4, the entire thrust of B4, it's all about the suspension agreement.

[01:45:44] Speaker 04:
So the first half of subsection B4 talks about a determination to suspend.

[01:45:52] Speaker 04:
And then it goes on to say, including a final determination, there's a lot of verbiage here, but if you'll bear with me, including any final determination resulting from a continued investigation, which changes the size of the dumping margin or the subsidy calculated or the reasoning underlying such calculations at the time the suspension agreement was concluded.

[01:46:20] Speaker 08:
So again, the final... That's referring to the changing the margin from the preliminary determination?

[01:46:28] Speaker 04:
Yes, exactly.

[01:46:29] Speaker 04:
So what this is doing in this statutory provision is it's saying that, you know, normally under APA-style review, you would challenge a decision from an administrative agency based on everything that was in front of the agency at the time the decision was made.

[01:46:49] Speaker 04:
But this statute creates essentially a little backspin that if, you know, after the suspension agreement is published, there is a final determination which changes the dumping margin or subsidy that was calculated at the time of the suspension agreement.

[01:47:07] Speaker 04:
Well, you can challenge that too.

[01:47:09] Speaker 04:
So it's not just a freestanding challenge to a final determination from a continued investigation.

[01:47:16] Speaker 04:
It's all about the changes to what was understood at the time the suspension agreement was issued.

[01:47:22] Speaker 04:
And if that final determination, the changes made by it, called into question the underlying rationale for the suspension agreement, well, that would be another reason that the suspension agreement could be attacked.

[01:47:38] Speaker 04:
So that's how these provisions all operate together.

[01:47:41] Speaker 04:
But it's all about the suspension agreement and the challenge to the suspension agreement.

[01:47:46] Speaker 04:
And here we have no timely challenge to the 2019 suspension agreement.

[01:47:54] Speaker 04:
So for these reasons, the court should hold that the tariff act did not confer a jurisdiction upon the trade court to review the final determination because there was no anti-dumping duty order

[01:48:06] Speaker 04:
and no timely challenge to the 2019 suspension agreement, and the court should affirm the judgments of the trade court.

[01:48:13] Speaker 04:
Thank you.

[01:48:15] Speaker 08:
Okay.

[01:48:15] Speaker 08:
Thank you, Mr. Edelschick.

[01:48:17] Speaker 08:
Ms.

[01:48:17] Speaker 08:
Alves?

[01:48:19] Speaker 01:
Thank you, Your Honor.

[01:48:21] Speaker 01:
I wanted to make a couple of quick points, but of course, happy to answer additional questions as well.

[01:48:27] Speaker 01:
With respect to the

[01:48:31] Speaker 01:
1516AA2B4 provision, there were some questions about what the purpose of the provision was.

[01:48:40] Speaker 01:
And really, there are two purposes.

[01:48:42] Speaker 01:
One, as you recognized with respect to the legislative history, it was to give, for example, the domestic industry the opportunity to challenge a suspension agreement or others.

[01:48:51] Speaker 01:
It was also designed to provide for a situation where in between the preliminary determination and the final determination,

[01:49:01] Speaker 01:
there were changes that would affect the assumptions underlying this suspension agreement.

[01:49:08] Speaker 01:
And Judge Sharonto, you had asked about timing, like how quickly all of this happened.

[01:49:14] Speaker 01:
The 2019 agreement was published on September 24th.

[01:49:21] Speaker 01:
The Department of Commerce issued its final determination on October 25th, and the commission issued its

[01:49:28] Speaker 01:
affirmative final determination on December 12th.

[01:49:31] Speaker 01:
So if in the process, if this case involved a section B suspension agreement, which it did not, and by a B agreement I mean under 19 USC 1673 C B, if this was a situation where the suspension agreement

[01:49:53] Speaker 01:
was one involving an agreement to completely eliminate sales at less than fair value.

[01:50:01] Speaker 01:
It would matter if there was a change between the preliminary and final determinations at commerce, what those are.

[01:50:10] Speaker 02:
Can I just, the timing, I guess I'm focused a little bit less on the timing at the moment.

[01:50:15] Speaker 02:
I guess I want to put to you the question I tried to ask.

[01:50:19] Speaker 02:
of the government.

[01:50:21] Speaker 02:
So as I think you indicated, you agree that under 1673 CG, Congress contemplated that a variety of parties, the domestics, but also in fact the exporters who are parties to a suspension agreement, can ask for a continuation of the proceeding to get a final determination.

[01:50:40] Speaker 02:
And B4 specifically sort of zeroes in on the idea that maybe that final determination will actually alter the rates

[01:50:49] Speaker 02:
that were baked into the suspension agreement itself, which presumably will have come from the preliminary determination.

[01:50:58] Speaker 02:
So Congress is expressly contemplating in B4 that what really may matter to the exporters who have pursued their continuation rights is what happens in that proceeding.

[01:51:13] Speaker 02:
Why, if that is

[01:51:15] Speaker 02:
congressional contemplation, should it matter that those exporters have to file a placeholder action to the suspension agreement when Congress understands that the only thing they may actually care about is the result of the final determination?

[01:51:36] Speaker 01:
Because only in certain circumstances did Congress actually want them to have an opportunity to appeal

[01:51:44] Speaker 01:
under paragraph four.

[01:51:47] Speaker 01:
And that was in a situation where you had a 1673CB agreement, which we don't have here.

[01:51:54] Speaker 01:
Here we had a 1673CC agreement, where the agreement was only styled to eliminate injuries effect.

[01:52:03] Speaker 01:
So the margins had nothing to do with the suspension agreement.

[01:52:06] Speaker 01:
If you had a different agreement,

[01:52:08] Speaker 01:
a 1673CB agreement where the agreement was aiming to eliminate completely the sales at less than fair value, then the change in margins would matter because it would affect the underlying assumptions for the suspension agreement.

[01:52:22] Speaker 01:
And so that's why you would want to have that place marker appeal under section four where you would appeal the suspension agreement just in case the final determination that Commerce issued

[01:52:38] Speaker 01:
changed that underlying assumption for that Section 1673CB agreement.

[01:52:46] Speaker 02:
Just to be clear, B4 doesn't distinguish among the types of 1673C agreements, right?

[01:52:56] Speaker 01:
That's correct.

[01:52:57] Speaker 01:
But the implication, the language talks about whether or not it's a final determination resulting from a continued investigation.

[01:53:06] Speaker 01:
which changes the size of the dumping margin or net counter available subsidy calculated or the reasoning underlying such calculations at the time the suspension agreement was concluded.

[01:53:18] Speaker 01:
So the only logical way that this would matter would be in the context of an agreement under 1673CB and not under this.

[01:53:29] Speaker 01:
Regardless though, as Mr. Edelschick pointed out, there was no,

[01:53:34] Speaker 01:
ability to bring any appeal under this provision because the Mexican respondents failed to appeal the suspension agreement itself, which they do not deny.

[01:53:46] Speaker 01:
They needed to file a timely appeal of the suspension agreement within 30 days after publication of the suspension agreement in the Federal Register.

[01:53:55] Speaker 08:
Okay.

[01:53:55] Speaker 08:
Thank you, Ms.

[01:53:56] Speaker 08:
Alveth.

[01:53:58] Speaker 08:
Mr. Wynton?

[01:54:02] Speaker 09:
Thank you.

[01:54:02] Speaker 09:
It's Jeff Wynton again.

[01:54:04] Speaker 09:
try to keep it brief.

[01:54:06] Speaker 08:
So just on this last point about the subsection four theory, it's quite odd.

[01:54:15] Speaker 08:
It only gives jurisdiction to challenge the final determination if there's been a change in the margin or the reasoning.

[01:54:26] Speaker 08:
So this seems to be a very odd way to create a general

[01:54:33] Speaker 08:
a challenge to the anti-dumping determination, it seems to be limited to very specialized circumstances.

[01:54:40] Speaker 08:
So if here there had been no change in the dumping margin from the preliminary determination, there'd be no jurisdiction under 4 under any theory.

[01:54:52] Speaker 09:
Sure.

[01:54:53] Speaker 09:
Well, let me take issue with something my former colleague.

[01:54:58] Speaker 09:
No, but try to answer my question first.

[01:55:02] Speaker 09:
Well, this is by way of answering it.

[01:55:06] Speaker 09:
There is here we have satisfied this requirement.

[01:55:09] Speaker 09:
There is a change in the dumping margin and the reasoning.

[01:55:12] Speaker 09:
And this is important in this agreement because although it's not an eliminate dumping agreement, it's an eliminate injurious effect agreement.

[01:55:22] Speaker 09:
One of the requirements of that provision is that we have to eliminate 85% of the dumping margin.

[01:55:28] Speaker 09:
And so we're in a situation where what eliminated 85% of the dumping margin meant what we thought we were signing up to is something different based on what commerce's final determination says.

[01:55:40] Speaker 09:
And so therefore, it's reasonable for us to be able to appeal this.

[01:55:44] Speaker 09:
But also say, when you look at the timing provision of the statute, it does not say that we have to appeal within 30 days after publication of the suspension agreement.

[01:55:54] Speaker 09:
It says it's two-way.

[01:55:56] Speaker 09:
11 says we have to appeal within 30 days of any determination described in B4.

[01:56:04] Speaker 09:
And we did that.

[01:56:05] Speaker 09:
We filed our appeal within 30 days of one of the determinations described in B4.

[01:56:10] Speaker 09:
So we are timely filed.

[01:56:16] Speaker 09:
By the way, to go back to something mentioned earlier, there's no... Excuse me.

[01:56:20] Speaker 04:
I'm sorry.

[01:56:21] Speaker 04:
This is Doug Edelschick.

[01:56:22] Speaker 04:
I think we lost one of the attorneys.

[01:56:25] Speaker 04:
I just wanted to bring it to the court's attention.

[01:56:27] Speaker 04:
Mr. Kipura dropped off.

[01:56:30] Speaker 00:
I just stopped the clock.

[01:56:31] Speaker 00:
I will reconnect and I'll attempt to reconnect them.

[01:56:35] Speaker 09:
This is Mr. Winton.

[01:56:36] Speaker 09:
Should I just keep going or... Yeah, please keep going.

[01:56:39] Speaker 09:
Okay.

[01:56:40] Speaker 09:
So let's go back.

[01:56:41] Speaker 09:
Under the eliminate injurious effect type of agreement, we have to agree to eliminate 85% of our dumping margin.

[01:56:49] Speaker 09:
So what the final dumping margin is has an impact on the administration agreement.

[01:56:53] Speaker 09:
It's something that commerce looks at as part of its compliance reviews in this case.

[01:56:59] Speaker 09:
The second point I wanted to make was if this is a B4,

[01:57:05] Speaker 09:
determination as Mr. Edelschick concedes, the timing provision for that does not say you have to appeal within 30 days of the suspension agreement.

[01:57:14] Speaker 09:
It says you have to appeal within 30 days of any determination described in paragraph B4, which we did because one of the determinations described in paragraph B4 is the continued

[01:57:26] Speaker 09:
determination to continue the investigation.

[01:57:28] Speaker 09:
So, there's no timing problem.

[01:57:31] Speaker 08:
The timing problem wouldn't exist anyway by virtue of 1516 AA5 if we're talking about the NAFTA, right?

[01:57:40] Speaker 08:
Right.

[01:57:41] Speaker 09:
And that leads me to my next point.

[01:57:43] Speaker 09:
Mr. Adelschick said, if we wait until an anti-dumping order is published, we can challenge anything we want under 2AI2.

[01:57:53] Speaker 09:
And 2AI2 says that you can appeal within 30 days after publication in the Federal Register of an anti-dumping or cannabinoid duty order based on any determination described in clause one of paragraph B. So in order for us to challenge things after the anti-dumping orders, Mr. Edelschick suggests, it has to be that this is a B1 case.

[01:58:13] Speaker 09:
The determination falls under B1.

[01:58:16] Speaker 09:
It may also fall under B4.

[01:58:19] Speaker 09:
But it certainly falls under B1, in which case the A5 timing and the NAFTA.

[01:58:25] Speaker 09:
So there's nothing in the statute that says B4 excludes jurisdiction under B1.

[01:58:34] Speaker 09:
And especially where the claim is

[01:58:36] Speaker 09:
that really B4 only allows you to challenge a suspension agreement, which is the position of the government, it cannot be then that B4 somehow precludes you from challenging the determination under B1, which, because they say it's something different, there's a fundamental inconsistency.

[01:58:53] Speaker 02:
Mr. Wyndon, this is Judge Tarana.

[01:58:55] Speaker 02:
Can I just ask, are there other overlaps within the B reviewable determinations list

[01:59:05] Speaker 09:
To be honest, I haven't thought that about it, so I have to look.

[01:59:08] Speaker 09:
Okay.

[01:59:09] Speaker 09:
That's fine.

[01:59:11] Speaker 08:
Okay.

[01:59:11] Speaker 08:
Thank you, Mr. Winton.

[01:59:13] Speaker 08:
Unless there are further questions from my colleagues, I think that concludes the argument on issue three.

[01:59:19] Speaker 08:
Now, we had left an opportunity for any party who hadn't been heard to present five minutes of argument.

[01:59:29] Speaker 08:
Is there anybody that falls into that category?

[01:59:38] Speaker 08:
Not hearing any, I think that concludes our session for today.

[01:59:43] Speaker 08:
Does any of my colleagues have any further questions?

[01:59:46] Speaker 00:
No, thank you.

[01:59:47] Speaker 08:
No, thanks.

[01:59:48] Speaker 08:
Okay.

[01:59:49] Speaker 08:
All right.

[01:59:49] Speaker 08:
Thank all council.

[01:59:51] Speaker 08:
This has been complicated and you've managed to do it very well considering the limitations we have because we're doing this remotely.

[02:00:01] Speaker 08:
So thank all council.

[02:00:02] Speaker 08:
The cases are submitted.

[02:00:07] Speaker 01:
The honorable court is adjourned until tomorrow morning at 10 a.m.