[00:00:00] Speaker 04:
Our next case is Realtek Semiconductor Corporation versus ITC, docket 23-1187.

[00:00:08] Speaker 04:
Councillor Chen, I understand you'll be arguing for 10 minutes and Mr. Liddell will argue for five.

[00:00:17] Speaker 04:
Is that you're splitting your argument?

[00:00:19] Speaker 01:
That's correct, Your Honor.

[00:00:23] Speaker 04:
And Mr. Angeles, you may proceed.

[00:00:27] Speaker 04:
You have reserved five minutes of time for rebuttal.

[00:00:30] Speaker 03:
That's right, Your Honor.

[00:00:30] Speaker 03:
Thank you so much.

[00:00:31] Speaker 03:
Okay.

[00:00:34] Speaker 03:
May I proceed, Your Honor?

[00:00:35] Speaker 03:
Yes.

[00:00:35] Speaker 03:
Good morning and may it please the court, Theo Angeles of K&L Gates for petitioner Realtek Semiconductor Corporation.

[00:00:42] Speaker 03:
This is yet another baseless action relating to this $1 million bounty clause that MediaTek offered to FutureLink to Sue Realtek.

[00:00:51] Speaker 03:
After conducting discovery,

[00:00:53] Speaker 03:
Realtek determined that there was no evidence for key elements of the claims.

[00:00:57] Speaker 03:
And so it identified that fact and asked FutureLink to come forward with evidence for those claims.

[00:01:03] Speaker 03:
And when it did not, it filed a sanctions motion, which the ALJ denied and which became the commission's decision.

[00:01:08] Speaker 04:
So it's a sanctions decision.

[00:01:11] Speaker 04:
Is it appealable?

[00:01:13] Speaker 03:
It is, Your Honor.

[00:01:14] Speaker 03:
Is it appealable here?

[00:01:15] Speaker 03:
It is, Your Honor.

[00:01:16] Speaker 03:
So under 1295-86.

[00:01:17] Speaker 05:
And what authority do you have for that?

[00:01:20] Speaker 03:
So, Your Honor, there is

[00:01:22] Speaker 03:
The primary authority is the language of the statute itself, 1295A6.

[00:01:26] Speaker 03:
And what 1295A6 says is that this court has exclusive jurisdiction over all final determinations of the commission relating to unfair trade practices.

[00:01:36] Speaker 03:
And so there doesn't seem to be any dispute that this is a decision of the commission and that it is a final determination.

[00:01:43] Speaker 03:
It's final.

[00:01:43] Speaker 05:
Well, final determination is a term of art in the ITC, right?

[00:01:48] Speaker 05:
So the question is, is this a final determination of the sort that 337C refers to?

[00:01:55] Speaker 05:
That's right, Your Honor.

[00:01:57] Speaker 05:
And so argue that 337C refers to final determinations in certain subsections of 337 that do not include sanctions.

[00:02:10] Speaker 05:
Sanctions are addressed only in that final sentence of 337C that says,

[00:02:17] Speaker 05:
that such matters are also reviewable, that it doesn't say here.

[00:02:24] Speaker 03:
That's right, your honor.

[00:02:25] Speaker 03:
So there are three jurisdictional clauses in 337C, sort of one, two, and three, and they were added at different times under different situations.

[00:02:33] Speaker 03:
And under three, the third jurisdictional clause, it refers to, the second and third refer to determinations rather than final determinations.

[00:02:40] Speaker 04:
Those don't apply to you.

[00:02:42] Speaker 03:
The second and first do not apply to us.

[00:02:45] Speaker 03:
That's right.

[00:02:46] Speaker 03:
The third one does apply to us, and it confirms that sanctions rulings are reviewable.

[00:02:52] Speaker 03:
So far, so good.

[00:02:53] Speaker 03:
Yes, indeed.

[00:02:53] Speaker 03:
We all agree on this one.

[00:02:54] Speaker 03:
The next part is the hard part.

[00:02:56] Speaker 03:
But Your Honor, so our understanding is that the language of final determination is not being used in a special way because one reason we know that is if we look at clause three, it refers to determinations under sections E and F, for example, which would make no sense

[00:03:13] Speaker 03:
If final determination under enough and determination that I think known as suggesting that a determination under clause three on forfeiture of bonds for example under enough would not come to this court but that's because of the first sentence that we're talking about right I mean.

[00:03:30] Speaker 00:
The problem you have is that the sentence that says you get to go to the Federal Circuit doesn't include subsection H, right?

[00:03:40] Speaker 00:
So the sentence that says any person at literacy be affected by a final decision, that doesn't refer to actions under subsection H, right?

[00:03:52] Speaker 03:
Under the first clause.

[00:03:53] Speaker 03:
Yes, that's correct.

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

[00:03:55] Speaker 00:
Okay.

[00:03:56] Speaker 00:
So of course nobody is disputing that the third sentence doesn't relate to jurisdiction in the federal circuit for sections ENF because they are referred to in that first sentence.

[00:04:10] Speaker 03:
But there are different determinations.

[00:04:12] Speaker 03:
So ENF bond forfeiture decisions is not the same thing as a final determination under

[00:04:19] Speaker 03:
Clause 1, for example.

[00:04:21] Speaker 03:
And my understanding is that the commission's position is that the things under ENF in clause 3 come to this circuit, which feeds into our view that you don't need two different statutes to provide the Federal Circuit jurisdiction.

[00:04:33] Speaker 03:
1295A6 on its own provides this court with jurisdiction.

[00:04:38] Speaker 05:
Well, for example, the second sentence that no one has addressed

[00:04:44] Speaker 05:
is a sense that we've construed, at least with respect to advisory opinions, as not giving us jurisdiction.

[00:04:54] Speaker 05:
I don't know if you're familiar.

[00:04:55] Speaker 05:
Allied Corporation against ITC?

[00:04:57] Speaker 05:
Are you familiar with that case?

[00:04:59] Speaker 03:
Not offhand or arm.

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

[00:05:01] Speaker 05:
Well, that's what that case holds.

[00:05:04] Speaker 05:
So it's not the case that everything that falls into 337C, as mentioned in those three sentences,

[00:05:13] Speaker 05:
that we have jurisdiction.

[00:05:15] Speaker 05:
So it looks to me like, as I read this statute, that the things that come to us are defined in the first sentence.

[00:05:27] Speaker 05:
I don't see why the other two sentences necessarily bring things to us.

[00:05:31] Speaker 05:
I understand your argument about 1295A6, but we've said in a number of cases going back, I guess, to one of Oscar Davis's opinions in

[00:05:43] Speaker 05:
What was it?

[00:05:47] Speaker 05:
Before Viscofan, there was a case, yeah, block against ITC.

[00:05:53] Speaker 05:
And I think he said something to the effect of the

[00:06:03] Speaker 05:
ITC's order is neither intrinsically a final determination nor the equivalent of a final determination, and then says a final determination is a final administrative determination on the merits, excluding or refusing to exclude articles from entry.

[00:06:19] Speaker 05:
This order is not a final administrative decision on the merits, excluding or refusing to exclude

[00:06:27] Speaker 05:
articles from the entry.

[00:06:28] Speaker 05:
So under that authority, it seems to me you have a hard time saying why this.

[00:06:33] Speaker 05:
And this was in light of 1296, 1295H6 still existing.

[00:06:38] Speaker 05:
Don't you have a hard time then saying that notwithstanding that language, you've got jurisdiction here?

[00:06:45] Speaker 03:
I don't, Your Honor, and here's why.

[00:06:46] Speaker 03:
So the question in Block was whether the dismissal was sufficiently final to support this court's jurisdiction, and that the court determined that there was not finality.

[00:06:57] Speaker 03:
So there was no holding in blog.

[00:07:00] Speaker 05:
But it had to be both final and also on the merits excluding or refusing to exclude articles from entry.

[00:07:11] Speaker 03:
I think if you look exactly at the sentence you quoted, Your Honor, you would see that it was a, in that case, it would be a necessary but not an exhaustive category.

[00:07:21] Speaker 03:
So for example, 1994 is when H is added, this third

[00:07:26] Speaker 03:
review provision is added to 337C.

[00:07:29] Speaker 03:
And there's no case to our knowledge that holds in any way that when Congress says to this court, here is an important determination that can be reviewed that it meant to exclude this court from doing so.

[00:07:42] Speaker 03:
And that's what we're asking ourselves.

[00:07:43] Speaker 03:
Did Congress, Congress said in section three, I want there to be a review of sanctions determinations.

[00:07:49] Speaker 03:
And the question is, what did Congress mean by that?

[00:07:52] Speaker 03:
Did Congress mean that

[00:07:53] Speaker 03:
If Realtek prevailed on summary determination before the ITC, because there was no evidence on these key elements, and also sanctions were awarded or not awarded because there was no evidence that the summary determination order would come to this court, but the sanctions order would go to the district court of DC.

[00:08:09] Speaker 05:
Well, but there are instances in which, for example, the CIT has jurisdiction over some of the orders entered by the ITC.

[00:08:19] Speaker 05:
Right?

[00:08:20] Speaker 03:
I mean, that's... Not in 337, Your Honor.

[00:08:22] Speaker 03:
So 1295A6 refers specifically... Not anything under 337?

[00:08:26] Speaker 03:
To the best of my knowledge, no, Your Honor.

[00:08:29] Speaker 03:
I think that's why 1295A6 has the language it does, because Section 337 is really a confined area of ITC's jurisprudence.

[00:08:38] Speaker 05:
If Congress had intended H to be brought in,

[00:08:42] Speaker 05:
to the group of final determinations listed earlier in the statute in the first sentence, it would have been pretty simple just to add the letter H up with the others.

[00:08:56] Speaker 05:
But instead, it created a third sentence in which it said, also reviewable, but not referring to the Federal Circuit.

[00:09:05] Speaker 05:
The first sentence does refer to the Federal Circuit.

[00:09:07] Speaker 03:
That's right.

[00:09:08] Speaker 03:
Well, I would disagree.

[00:09:09] Speaker 05:
Why do you think of it that way?

[00:09:10] Speaker 05:
What's the explanation in that sense?

[00:09:12] Speaker 03:
I'm sorry to interrupt.

[00:09:14] Speaker 03:
So in clause three, clause three was added as a block, basically as part of the 1994 amendments to section three 37.

[00:09:22] Speaker 03:
And so the government, for example, the commission relies on the fact that G was added to the first clause at some point, but that was not done at the same time.

[00:09:30] Speaker 03:
So Congress simply chose to amend by putting adding in a, just a specific provision that addressed these issues rather than going back.

[00:09:37] Speaker 03:
Would it have been clearer?

[00:09:38] Speaker 03:
It would have been clearer.

[00:09:40] Speaker 03:
Have they done?

[00:09:42] Speaker 03:
It's hard to know what's easy for Congress, your honor.

[00:09:49] Speaker 03:
We don't need two jurisdictional provisions to get this court's jurisdiction.

[00:09:55] Speaker 03:
There's already 1295A6, which says that a final determination is sufficient.

[00:10:00] Speaker 03:
That's what this court looks at.

[00:10:02] Speaker 03:
And to the extent there's some suggestion that determinations and final determinations are treated differently in 337C, I don't think that the statute will bear that.

[00:10:11] Speaker 03:
If you look at the way that word determination is used in clause two, for example, Your Honor, it just doesn't match up with that.

[00:10:18] Speaker 03:
And so this court has to decide,

[00:10:20] Speaker 03:
Do we extend the prior rulings of this court?

[00:10:22] Speaker 03:
None of them are binding.

[00:10:23] Speaker 03:
None of those rulings are binding on this panel as to how it should resolve this question.

[00:10:27] Speaker 03:
And when you have a situation where Congress has specified that review should occur of a sanctions determination, and has also separately specified that this court has exclusive jurisdiction over final determinations relating to unfair trade practices, and as we've cited in the Celotex case, which involved the jurisdiction of the bankruptcy court, relating to is interpreted very broadly.

[00:10:48] Speaker 00:
Can I ask you a question?

[00:10:49] Speaker 00:
You said that our prior precedent interpreting this statute is not binding on us.

[00:10:55] Speaker 00:
I take it that you're saying, even though that prior precedent, some of it relies on the rationale that final determination is specially defined by section 1337C, that we're not bound by that.

[00:11:09] Speaker 03:
I think, Your Honor, certainly this Court is bound by the prior determinations of its panels.

[00:11:14] Speaker 03:
What I'm saying is this is a new question.

[00:11:16] Speaker 03:
The Court has never decided whether, by Congress adding the statement saying, we want there to be review of sanctions decisions, what it meant was, we want you to go to some other Court to do that.

[00:11:27] Speaker 03:
We don't want you to go to the federal court.

[00:11:29] Speaker 00:
Can we presume that Congress was familiar with VSCOFAN?

[00:11:33] Speaker 00:
Or can we presume that Congress was familiar with DC Circuit case law that says,

[00:11:39] Speaker 00:
that when it doesn't specify a particular court where there is, you're not going to be able to go from an agency directly to a court of appeals?

[00:11:48] Speaker 03:
Yes, your honor.

[00:11:48] Speaker 03:
But VSCOFAN involved a situation where Congress didn't speak to the reviewability of a determination on this issue.

[00:11:56] Speaker 03:
So that's why it's a very different situation.

[00:11:58] Speaker 03:
VSCOFAN involved something that was not specified in 337C.

[00:12:02] Speaker 03:
Here we have a situation where it is specified in 337C.

[00:12:06] Speaker 00:
What about the general principle that, I guess this doesn't matter either, but just the general principle that the district court, we're going to presume if there's not a court identified, you will presume that it's going to be reviewed by a district court.

[00:12:20] Speaker 00:
And I take it your response to that is, oh, you can't presume that here because of the first sentence in section 1337C.

[00:12:27] Speaker 03:
I would say the first part of that.

[00:12:29] Speaker 03:
But I would say it's because of 1295A6 that said, this court is the exclusive jurisdiction for final determinations.

[00:12:36] Speaker 03:
and determinations are specified.

[00:12:38] Speaker 03:
This is a determination that's final.

[00:12:39] Speaker 04:
And our precedent has addressed that.

[00:12:42] Speaker 04:
What's the final determination?

[00:12:44] Speaker 04:
And it's one that goes to the merits that deals with the issue of excluding by the specialized exclusion orders imports.

[00:12:52] Speaker 04:
And your case does not involve that.

[00:12:55] Speaker 03:
So I would say this, Your Honor, our case involves a final determination on the merits of a sanctions issue.

[00:13:01] Speaker 03:
And that's how we read those cases.

[00:13:02] Speaker 03:
Those cases don't

[00:13:03] Speaker 03:
Those cases were only addressing the statute as it existed at the time when it didn't provide for it.

[00:13:09] Speaker 04:
To get to your interpretation, we have to engage in quite a bit of jumping around in the regulations.

[00:13:16] Speaker 04:
I mean, we have something that facially applies to this situation.

[00:13:22] Speaker 04:
And that is this court, and it names the court.

[00:13:25] Speaker 04:
We don't have to guess as to which court we're talking about.

[00:13:28] Speaker 04:
It names this court by name that we have jurisdictional or final determinations of commission.

[00:13:34] Speaker 04:
It doesn't say anything about sanctions.

[00:13:37] Speaker 04:
And we have defined what a final determination is in the past.

[00:13:45] Speaker 04:
Our precedent does that.

[00:13:47] Speaker 03:
Sir, I would say that the especial unius canon that Your Honor is invoking

[00:13:52] Speaker 03:
doesn't apply in this case because of the language of 1295A6.

[00:13:56] Speaker 03:
And I don't think that this court's prior, respectfully, I don't think this court's prior opinions explicitly state that when there is a guidance in 337C that reviewability should happen, that that's outside of 1295A6.

[00:14:12] Speaker 03:
So I say I'm well into my rebuttal time.

[00:14:15] Speaker 03:
I'm happy to address the other issues now, or I can do that on rebuttal.

[00:14:19] Speaker 03:
OK.

[00:14:19] Speaker 03:
Thank you, Your Honor.

[00:14:20] Speaker 04:
Thank you.

[00:14:25] Speaker 04:
Attorney Chen.

[00:14:28] Speaker 02:
Good morning, Your Honors.

[00:14:29] Speaker 02:
May it please the court, Kathy Chen for the ITC.

[00:14:32] Speaker 02:
I'd like to first start off with some questions the panel asked about subject matter jurisdiction here.

[00:14:37] Speaker 02:
There's no inconsistency between Section 1295A6 and Section 337C.

[00:14:43] Speaker 02:
Section 337 existed long before Section 1295A6 came into existence when this court was created.

[00:14:52] Speaker 02:
And even before then, there was a very common understanding, a special understanding of what final determinations meant.

[00:15:01] Speaker 02:
Going back to this predecessor court's understanding in import motors, allied, block, all of these decisions define final determinations appealable under Section 1295A6 to mean those recited in Section 337C.

[00:15:18] Speaker 02:
And specifically,

[00:15:20] Speaker 02:
In crucible, this court defined final determinations to mean final administrative decisions made by the Commission on the merits as to whether to exclude or not to exclude articles from entry.

[00:15:33] Speaker 02:
There's no such final determination here on the merits.

[00:15:36] Speaker 02:
There's no final determination made under subsections D, E, F, or G. Now, if I would also like to comment that

[00:15:46] Speaker 02:
Congress did not intend for all sanctions to be reviewable by this court.

[00:15:51] Speaker 02:
Sanctions determinations that are challenged under the APA are often determined by a federal district court.

[00:15:58] Speaker 00:
How have there been any cases?

[00:16:01] Speaker 00:
I think I know the answer to this.

[00:16:02] Speaker 00:
But I take it there have been no cases where there has been an APA appeal taken to a district court.

[00:16:10] Speaker 02:
There has, in jubilance on page 33 of the IDC.

[00:16:13] Speaker 00:
But that wasn't a sanctions case.

[00:16:15] Speaker 02:
It was not a sanctions.

[00:16:16] Speaker 02:
There was a declassification decision.

[00:16:18] Speaker 02:
But in the same vein, the declassification decision.

[00:16:21] Speaker 00:
Are you aware of any, there are no sanctions cases?

[00:16:24] Speaker 00:
That was my question.

[00:16:25] Speaker 00:
Have there been any sanctions cases?

[00:16:27] Speaker 02:
No, I am not aware of a sanctions decision alone being litigated in the federal district court.

[00:16:33] Speaker 02:
I think the jubilant case, though, however,

[00:16:36] Speaker 02:
on point here because it is a declassification decision that also was not a final determination on the merits made under subsections D through G. And it was challenged in the federal district court, DC district court.

[00:16:50] Speaker 02:
In the same vein here, Realtek could have challenged the denial of sanctions decisions here in a federal district court.

[00:16:57] Speaker 02:
However, this court does not have jurisdiction.

[00:17:00] Speaker 02:
If I could also briefly discuss the last two sentences of subsection C.

[00:17:07] Speaker 02:
I think this court's precedent in Hyundai decision interpreted based on the legislative history and the statutory language, the second to last sentence in subsection C. It found in the Hyundai decision, it said that this second to last sentence was intended by Congress to convey a less stringent standard review for certain commission findings related to the remedy, the public interest, and bonding.

[00:17:36] Speaker 05:
in the same fashion as- Right, but in Hyundai, if I recall correctly, the court did exercise jurisdiction.

[00:17:46] Speaker 02:
The court did, because there was a final determination on the merits.

[00:17:48] Speaker 02:
Exclusion orders were issued.

[00:17:50] Speaker 05:
Oh, exclusion orders were issued in Hyundai?

[00:17:52] Speaker 02:
Exactly.

[00:17:53] Speaker 05:
OK, so the question, well, how did the question then of the second sentence, or second to last sentence, how did that- It was because the appellant challenged the remedial orders, and the commissions-

[00:18:06] Speaker 05:
as part of the final determination challenge.

[00:18:09] Speaker 02:
Exactly.

[00:18:10] Speaker 02:
And there was a dispute as to what standard review applied to the commissions.

[00:18:15] Speaker 05:
And that's when 706 E and A came into play.

[00:18:18] Speaker 02:
Exactly, Your Honor.

[00:18:19] Speaker 02:
And the court looked at the legislative history and the language of that second to last sentence and said it was Congress intended to apply a less standard standard, the abuse of discretion standard, to certain commission findings.

[00:18:31] Speaker 02:
But that second to last sentence is not a

[00:18:33] Speaker 02:
a grant of jurisdiction upon this court that's separate from that third to last sentence, right?

[00:18:40] Speaker 02:
In similar fashion, if you look at in 1994 when Congress added this very last sentence that includes subsection H, the structure of this last sentence is very similar to the second to last sentence, including use of the word also.

[00:18:53] Speaker 02:
And that intends to convey that this last sentence is also to merely provide a less free than standard review.

[00:19:01] Speaker 02:
for certain findings on bond forfeiture and imposition of sanctions.

[00:19:05] Speaker 02:
Now certainly, for instance, there's the Organikimia case where the commission entered default judgment.

[00:19:13] Speaker 02:
There are sanctions decisions that would be reviewable by this court.

[00:19:16] Speaker 02:
That's not this case.

[00:19:17] Speaker 05:
But they have to be attached to a final determination, I think.

[00:19:20] Speaker 02:
Or they have the operative effect or intrinsically a final determination under DEF or G. This is like Amarin or Amgen.

[00:19:28] Speaker 02:
Exactly, Your Honor.

[00:19:30] Speaker 05:
allied corporation against ITC.

[00:19:34] Speaker 05:
Are you familiar with that case?

[00:19:36] Speaker 02:
Yes, in an allied it was a modification.

[00:19:38] Speaker 02:
There was two allied cases.

[00:19:40] Speaker 05:
Okay, I'm talking about the one at 850 FedSecond.

[00:19:44] Speaker 02:
Right, in that one there was a modification and so the modification actually

[00:19:49] Speaker 02:
the court found that it had an operative effect in affecting the original exclusion order that was issued in the underlying investigation.

[00:19:57] Speaker 05:
And for that reason, it's- But the court talked.

[00:20:00] Speaker 05:
Part of that opinion that I'm really focusing on is the portion in which they said, with respect to the Second Senate's advisory opinion, would not be within the scope of this court's jurisdiction, an ITC advisory opinion.

[00:20:17] Speaker 02:
Right.

[00:20:18] Speaker 02:
In that one, the advisory opinion is also not a final determination under DEF or G. And for that reason, the court said that it did not have jurisdiction over the advisory opinion.

[00:20:29] Speaker 05:
So that would be an example of something in one of the last two sentences that was a decision, that is the last decision that the ITC is going to make on this issue, which doesn't have jurisdiction laid in this court, right?

[00:20:47] Speaker 02:
This court would not have jurisdiction, but also in advisory opinions, the commission would not be issuing any remedial relief of exclusion orders, and it would not be actually making a final determination on the merits.

[00:21:00] Speaker 05:
Yeah, I'm trying to get a sense from you whether you regard that case and the holding with respect to advisory opinions as supporting the view that there are provisions, there are things in the second and third sentences

[00:21:15] Speaker 05:
that don't come to this court, but could presumably go to another court.

[00:21:19] Speaker 02:
Yes.

[00:21:20] Speaker 02:
But also as another example, under subsection J, when a final determination where there's a finding of violation with an exclusion order, it goes to the president for review.

[00:21:32] Speaker 02:
There's a Duracell case by this court where these kind of reviews by the president are also not reviewed by this court.

[00:21:41] Speaker 02:
And even though an exclusion order was issued in these type of situations,

[00:21:51] Speaker 02:
If there are no further questions, the commission asks this court to dismiss the entire appeal based on lack of jurisdiction, including lack of standing.

[00:21:58] Speaker 04:
Thank you.

[00:22:01] Speaker 04:
Mr. Ladell, you have five minutes.

[00:22:05] Speaker 01:
Thank you, Your Honor.

[00:22:07] Speaker 01:
I'm happy to address the jurisdictional questions, but I think my friend and my colleague has adequately discussed those.

[00:22:13] Speaker 01:
If the court has questions for me about those that are any different, obviously we agree with the commission that there is no jurisdiction here.

[00:22:19] Speaker 01:
I was going to address the underlying merits, even assuming there was jurisdiction.

[00:22:25] Speaker 01:
And just briefly, I think I'll say that,

[00:22:29] Speaker 01:
There's been no showing that the ALJ and the commission in any way abused their discretion in denying the sanctions request.

[00:22:38] Speaker 01:
I think the record is pretty clear that the arguments were considered, that Realtek suggests that somehow there was a failure to consider its arguments under the APA.

[00:22:49] Speaker 01:
That's just not true.

[00:22:50] Speaker 01:
It made essentially two arguments.

[00:22:52] Speaker 01:
It argued that there was no evidence or evidentiary support

[00:22:58] Speaker 01:
The ALJ clearly considered and rejected that argument.

[00:23:01] Speaker 01:
It also argued that there was essentially an improper purpose.

[00:23:06] Speaker 01:
The ALJ also rejected that, although they no longer appeal that issue.

[00:23:12] Speaker 01:
The case law doesn't suggest that the ALJ had to sort of specifically go through every piece of evidence or every factual contention that Realtek makes.

[00:23:23] Speaker 01:
That's not the law here in reviewing

[00:23:26] Speaker 01:
whether an APA violation existed.

[00:23:27] Speaker 01:
They try to basically transform their disagreement with the end result into an APA argument that just doesn't work here.

[00:23:36] Speaker 01:
I'm happy to answer any questions, but I don't know if there's more I need to speak to.

[00:23:39] Speaker 04:
Thank you for your argument.

[00:23:48] Speaker 03:
Thank you, Your Honor.

[00:23:50] Speaker 03:
I want to return to the allied court case that Judge Bryson mentioned, because I sort of re-familiarized myself a little bit with it.

[00:23:57] Speaker 03:
My reading of that case is that it turns on the same issues that Block turned on.

[00:24:01] Speaker 03:
In fact, it cites Block and relies on it.

[00:24:03] Speaker 03:
And it was a finality issue.

[00:24:04] Speaker 03:
So the issue there was whether an advisory opinion that was identified as an advisory opinion was actually reviewable because it was so denominated.

[00:24:14] Speaker 03:
And it created a hypothetical question for a court of appeals

[00:24:19] Speaker 03:
to not be able to review it.

[00:24:20] Speaker 03:
I'm looking here at 1579 to 80, the discussion that's there.

[00:24:25] Speaker 03:
And what this court I believe said.

[00:24:26] Speaker 05:
I was actually looking at 1578 to 79, where it starts in on the whole question.

[00:24:32] Speaker 05:
First, starting at the paragraph, if we're going line by line here, under B, the second paragraph.

[00:24:41] Speaker 05:
And it says they are not, these advisory opinions are not reviewable because they are not final determinations required by Section 337C and 1295

[00:24:54] Speaker 05:
a six.

[00:24:56] Speaker 05:
And that's what struck me as suggesting that in cases that are governed by the second sentence of 337, the second to last sentence of 337C, that you've got a situation where you can't come to this court.

[00:25:17] Speaker 03:
So your honor, I actually read that completely differently.

[00:25:20] Speaker 03:
And so let me tell you why.

[00:25:21] Speaker 03:
If you look at the, um, the portion of the opinion that's talking about this issue, it says ITC advisory opinions, then it has a citation, are not reviewable by this court because they are not final determinations required by 337C and 1295A6.

[00:25:37] Speaker 03:
And then the court goes on to say, the reason that's true is quote, the commission may at any time reconsider any advice given under this section.

[00:25:47] Speaker 03:
and where the public industry requires rescind or revoke its prior advice.

[00:25:51] Speaker 03:
That's language of finality, Your Honor.

[00:25:53] Speaker 03:
That's not language of reviewability.

[00:25:55] Speaker 05:
We're talking about the word final in two different senses here.

[00:25:59] Speaker 05:
And it's sort of like the word jurisdiction, which has many, many meanings.

[00:26:03] Speaker 05:
But if by final we mean a final determination is used as a term of art to refer to something that is so referred to in the earlier part of 337c, then

[00:26:16] Speaker 05:
This case seems to stand for the proposition that the second to last sentence does not have a jurisdictional home in this court.

[00:26:26] Speaker 05:
If what you mean by final determination is any determination whatsoever, as long as it satisfies requirements of finality, then that seems to me quite a different animal.

[00:26:37] Speaker 05:
That's the position you're taking.

[00:26:39] Speaker 05:
That is, Your Honor.

[00:26:40] Speaker 05:
I don't think, as I read the

[00:26:43] Speaker 05:
The way the commission uses that term and the way it's used in the statute doesn't seem to me to be the meaning of finality that's intended.

[00:26:53] Speaker 03:
But you can respond to that.

[00:26:56] Speaker 03:
And this is why the allied case is so important because when the court is talking about finality and allied, it's using it in the administrative law sense of that word, which of course is what is important for jurisdiction is you need finality under the APA.

[00:27:10] Speaker 03:
It's a final determination that's

[00:27:12] Speaker 03:
that's reviewable.

[00:27:12] Speaker 03:
And that's why under 337C, it uses both final determinations and determinations, uses both of those terms.

[00:27:20] Speaker 03:
I don't, to the best of my knowledge, we're not using... Because final determination, if it were used truly in the sense of the art in the commission, wouldn't actually make sense because most of these findings don't come in final determinations.

[00:27:33] Speaker 03:
They come in what are called reference of decisions or there are lots of

[00:27:38] Speaker 03:
things that the commission issues that are denominated different ways, some of which are on the remedy, some of which are on the 337 questions.

[00:27:46] Speaker 03:
And the commission uses these different terms.

[00:27:48] Speaker 04:
Those are all, those are all decisions that the ITC makes within the 337 proceeding itself.

[00:27:55] Speaker 04:
But the term determinations, final determinations is a term of art in the, in the ITC world.

[00:28:03] Speaker 03:
It is your honor.

[00:28:04] Speaker 03:
And I'm good green with you.

[00:28:05] Speaker 03:
And what I'm saying is that if that were the case,

[00:28:08] Speaker 03:
then one would be much narrower than the commission is taking because

[00:28:11] Speaker 03:
It's things that are not called final determinations are part of D, E, F, and G. When the commission issues its remedy, it doesn't do so in the final determination.

[00:28:19] Speaker 03:
It does so in a different document, for example, or the ALJ does so.

[00:28:23] Speaker 03:
And so there's no evidence that by using the word final determination in the first clause that Congress enacted and then using the word determination in the other clauses, it proves too much.

[00:28:35] Speaker 03:
It's not consistent with the plain language of the statute.

[00:28:38] Speaker 03:
And what the Supreme Court has consistently told the courts

[00:28:41] Speaker 03:
of appeals, including this one, is look to the statutory language.

[00:28:45] Speaker 03:
Let's look at the language.

[00:28:46] Speaker 03:
There has to be some reason to believe that some special meaning was anticipated, rather than the plain meaning of the statute.

[00:28:56] Speaker 04:
Thank you, Your Honor.

[00:28:59] Speaker 03:
Thank you.

[00:29:00] Speaker 04:
We thank the parties for their firm argument.