CONFEDERACION DE ASOCIACIONES v. US — Oral Argument

0:02 Clerk The United States Court of Appeals for the Federal Circuit is now open and in session.

0:07 God save the United States and this honorable court.

0:13 Judge Dyk Okay, good morning.

0:14 We'll hear argument this morning in four cases which we've consolidated for purposes of oral argument.

0:24 The first number of these cases is 20-2230 Red Sun Farms v. United States,

0:33 and the other three cases go together with that one.

0:41 We'll begin with Mr. Sykes, and when you're speaking,

0:46 it would be helpful if you would identify which of the four cases you are counseled for the appellant or appellant in.

0:55 So go ahead, Mr. Sykes.

0:58 Appellant Attorney (Devin S. Sikes) Thank you, Judge Dyke.

0:59 Good morning and may it please the court.

1:01 For the record, my name is Devin Sykes.

1:03 I'm with Aiken Gumm-Strauss-Hauernfeld,

1:06 and I'm appearing today on behalf of the five associations who are appellants in Consolidated Appeal No. 20-2232.

1:14 As you know, I will address question one.

1:16 Judge Dyk I think what I'd like you to do is to identify which case you are counseled in.

1:21 I know you're representing all of the appellants here for this purpose, but which case are you counseled in?

1:31 Appellant Attorney (Devin S. Sikes) Yes, Your Honor.

1:31 So I am counseled in the...

1:34 the case that begins Confederacion de Estaciones.

1:37 Okay.

1:37 Does that answer your question?

1:38 Yes, go ahead.

1:39 Okay, great.

1:40 So as you know, I will address question one in the court's January 5th order.

1:45 Question one raises a straightforward issue.

1:48 Did appellants smooth their claims regarding Commerce's unlawful termination of the 2013 agreement when they signed the 2019 agreement?

1:56 The answer is just as simple.

1:58 No.

1:58 The operative test here is whether appellants have a concrete interest in the outcome,

2:03 however small,

2:04 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.

2:13 The CIT got it wrong for at least two reasons.

2:17 First, the CIT incorrectly held that appellants voluntarily signed the 2019 agreement.

2:23 That holding, however, erroneously ignores the factual allegations and the appellant's complaints.

2:29 At this stage of the dispute, the CIT had no choice but to assume that allegations and the complaints were not valid.

2:35 So the repeal of the legal policies are true, even if doubtful in fact, and even if the trial judge did not believe them.

2:40 Appellants alleged in their complaints that they were forced and compelled to sign the 2019 agreement.

2:45 The CIT had no license to nor ignore those allegations.

2:49 Now, second, apart from its failure to accept appellants' factual allegations as true.

2:53 Judge Dyk What are the other claims with respect to the 2013 agreement?

2:59 I know that one of them is duress.

3:03 The others are that the,

3:05 the facts are completely untrue, and their claims are true.

3:05 The statutory requirements for termination of the agreement weren't complied with,

3:13 and there's a dispute as to whether they applied to the 2013 agreement, correct?

3:18 Appellant Attorney (Devin S. Sikes) That's correct, Your Honor.

3:20 The other argument which is related to that is that improper political influence actually drove Commerce's unlawful termination

3:26 and that they offered as pretext the termination clause in the agreement.

3:31 Judge Dyk So what case supports the notion that improper political influence is a basis for treating the 2013 agreement as still in force?

3:46 Appellant Attorney (Devin S. Sikes) As treating it still in force.

3:48 Let me answer your question directly, Your Honor.

3:51 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

3:59 or has to be based on the four corners of the record.

4:01 We argue here that the improper political influence falls outside of the four corners of the record

4:07 and, therefore, that the termination was unlawful.

4:10 Does that answer your question?

4:13 Go ahead.

4:14 Thank you.

4:15 Judge Taranto This is Judge Toronto.

4:16 Can I just ask, is your claim about duress that both the 2013 termination,

4:25 that is the termination of the 2013 agreement was under duress and that entry into the 2019?

4:33 Was that the same agreement was under duress, or is it one or the other, or what?

4:39 Appellant Attorney (Devin S. Sikes) Your Honor, our duress claim is more closely related to the signing of the 2019 agreement.

4:46 Unknown Okay.

4:47 Judge Taranto And do you have any case law that, well, first, I guess there's a threshold factual question.

4:58 Are the signatories here free always to withdraw?

5:04 Appellant Attorney (Devin S. Sikes) Of course they are, Your Honor, and thank you for raising that point.

5:10 As you know, the CIT did offer that rationale in its opinion below and actually all the decisions below.

5:17 But although true, and although it's true that the appellants are not paying cash deposits or dumping duties,

5:23 that doesn't negate the fact that appellants are already suffering an injury.

5:27 And nothing in the law requires appellants to suffer yet more injury or experience total injury

5:33 before they're convicted.

5:36 Judge Taranto So, I guess, I'm just, that feels more like it's getting into the next questions to me.

5:44 I'm trying to figure out, you say that the entry into the 2019 agreement was under duress.

5:51 And are there cases that say there can be a, without further specificity, a duress defense?

6:05 Or charge against an agreement that the party is legally free to walk away from?

6:14 Appellant Attorney (Devin S. Sikes) We haven't, yeah, we did not find any cases during our briefing.

6:20 Of course, as you know, Judge Toronto, the most applicable cases, at least under this court's jurisprudence,

6:25 are the New York Freedom case, or excuse me, Freedom New York case, and the North Star Steel case.

6:31 Those are the two cases that talk about duress, albeit in the context,

6:35 of a procurement contract.

6:38 Judge Taranto And did those didn't, or did they, did one of them involve a situation

6:43 where the party actually couldn't walk away and not actually carry out any stated obligation of the agreement?

6:52 Appellant Attorney (Devin S. Sikes) From our opinion, from our review of those opinions, Your Honor, we did not, we did not,

6:56 we could not tell whether that was true.

6:58 Judge Dyk Okay.

6:59 All right, just to complete the circle, the remaining argument about the 2013 agreements

7:04 is that the,

7:07 commerce's ability to withdraw from the agreements was governed by the statute,

7:12 and that the statutory conditions for withdrawal weren't satisfied.

7:16 What's the basis for the argument that statutory provision applies here

7:22 when the agreement itself gives the right to withdraw to commerce?

7:27 Appellant Attorney (Devin S. Sikes) Right.

7:28 So, we, our argument, Your Honor, is that commerce cannot augment its authority

7:35 that is cabined by statute.

7:37 And I would say to the extent that commerce itself felt that it had broad authority

7:40 to terminate agreement whenever it pleased, it didn't codify it in its regulations.

7:46 That's at 19 CFR 351.209.

7:49 The other couple points I would make on this, as you know, Judge Dyke,

7:52 the statute limits when commerce can enter into the suspension agreements.

7:58 It's got to be extraordinary circumstances.

8:01 And the legislative history, which the government cites in its brief,

8:04 also underscores that these are extraordinary circumstances,

8:07 and these agreements are meant to be used to conserve resources

8:12 and achieve quick results.

8:14 Our argument would be that it would be illogical for commerce,

8:19 excuse me, for Congress to authorize commerce to, you know,

8:23 enter into these sorts of negotiations under these circumstances

8:27 and with those goals in mind,

8:28 only for commerce then to willy-nilly terminate them whenever it pleased.

8:33 I would also say at this stage, Your Honor,

8:36 just at the outset, as you know,

8:38 the test is whether we have asserted a plausible claim

8:41 under Twombly and the related cases.

8:43 As the Supreme Court said in Chaffin,

8:46 the inquiry right now is not whether there's a prospect of,

8:49 whatever the prospects of success are,

8:51 are not pertinent to the mootness inquiry,

8:53 which is where we're at right now.

8:55 Judge Taranto Right, but just in terms of plausibility,

8:58 in the absence of additional facts,

9:00 and you can tell me if there are additional facts,

9:03 why is it plausible to,

9:06 to say that there was duress in the circumstances

9:10 that have been presented to us here,

9:15 in particular the walk away right?

9:17 And that may not be the only thing,

9:20 but why is this plausible?

9:22 Appellant Attorney (Devin S. Sikes) Sure, absolutely.

9:23 So in our complaint, Judge Toronto,

9:25 we outlined how several of the appellant's members

9:29 went out of business after the 2013 agreement was signed

9:32 and before the 2019 agreement was,

9:36 was executed.

9:37 So although it comes across as a choice,

9:39 it's really a Hobbesian choice.

9:41 The appellant's had the opportunity

9:42 to either go out of business or sign the agreement.

9:45 And the fact that appellant's chose to mitigate their damages,

9:48 although still suffering injury,

9:50 does not mean that their claims were,

9:52 were moot.

9:53 And it also demonstrates that in fact,

9:56 they were effectively forced to sign the agreement under duress.

9:59 So as not to suffer,

10:00 suffer further injury.

10:02 Judge Prost I guess just to follow up,

10:05 I just,

10:05 just to follow up,

10:06 I mean,

10:07 your first response to Judge Toronto's earlier question was that the duress is

10:11 more related to signing the 2019 agreement than anything dealing with the

10:17 2013 agreement.

10:18 So can we focus on the 20,

10:20 what the duress for the 2013 agreement?

10:23 I guess I'm getting confused between the two agreements and the allegations

10:26 here.

10:27 Appellant Attorney (Devin S. Sikes) Sure.

10:28 So thank you,

10:29 Judge Prost.

10:30 So just to clarify,

10:31 we don't have a duress claim related to the 2013 agreement,

10:34 the termination of the 2013 agreement.

10:36 That the allegation with respect to the 2013 agreement is that commerce didn't satisfy the applicable statutory and regulatory requirements.

10:47 The separate related count is that,

10:50 that our,

10:52 yes,

10:53 that commerce,

10:53 excuse me,

10:55 or that our appellants signed the agreement under duress.

10:59 Judge Dyk So what is,

10:59 aside from the duress theory,

11:01 what are the objections with respect to the 2019 agreement?

11:06 What are the basis for setting aside the 2019 agreement other than the alleged duress?

11:14 Appellant Attorney (Devin S. Sikes) Right.

11:14 So it's,

11:16 we're not challenging the terms of the agreement per se.

11:19 What we're saying is that the terms of the agreement have imposed additional onerous and injurious obligations on appellants that they otherwise wouldn't have accepted,

11:27 but for the unlawful termination of the agreement,

11:31 the fast track investigation that required appellants to submit information and condensed timelines,

11:37 which by the way,

11:38 normally take about a year at least.

11:40 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.

11:48 I apologize.

11:50 Judge Dyk I'm I'm not quite following this.

11:52 You say the 2019 agreement should be set aside because of duress.

11:58 And then you talk about various problems with the anti dumping proceeding.

12:04 And if there were problems with the anti dumping proceeding,

12:07 presumably those could be challenged as part of the challenge to the commerce termination.

12:15 And we're going to talk about that in a minute.

12:17 But aside from the duress claim,

12:20 is there any other separate argument for setting aside the 2019 agreement?

12:29 Appellant Attorney (Devin S. Sikes) Again,

12:29 your honor,

12:30 it would be the commerce's failure to satisfy the statutory and regulatory conditions that we outlined in count count one,

12:35 excuse me.

12:37 Judge Dyk But those could be raised,

12:40 as a challenge to the final anti dumping determination right under this court's decision in Miller.

12:47 Appellant Attorney (Devin S. Sikes) That is absolutely correct.

12:48 Your honor.

12:49 Okay.

12:50 Judge Taranto Can I just just ask one final question?

12:54 You haven't yet.

12:55 I think at least this morning disputed the proposition that if the 2019 agreement is a valid agreement,

13:06 i.e.

13:07 not avoidable for duress or something.

13:10 Then that would actually make relief on any challenge to the termination of the 2013 agreement unavailable and therefore the challenge to the termination of the 2013 agreement is moot.

13:26 Do I understand that right?

13:28 That the entire objection or challenge here at least to to the mootness ruling as to termination of the 2013 agreement is that the 2019 agreement is a valid agreement.

13:41 That the entire objection or challenge here at least to the termination of the 2013 agreement is that the 2019 agreement is itself void for duress and nothing else.

13:46 So that if we rejected the duress challenge then on this first question,

13:51 indeed,

13:52 there would be no available relief for the termination of the 2013 agreement.

13:57 Appellant Attorney (Devin S. Sikes) I hope that's clear.

13:59 I think I think so.

14:01 I think I'm understanding what I would say.

14:03 Judge Toronto is that if you disagree with our duress claim,

14:08 and if you disagree with our claim about the statutory and regulatory violations or excuse me the statutory criteria not being satisfied then I agree with you then that would be foreclosed.

14:19 Our arguments regarding the termination of the 2013 agreement would be foreclosed.

14:23 Judge Taranto Okay and the statutory qualifications are qualifications for termination or qualifications for termination of the 2013 or for entry into the 2019?

14:37 Appellant Attorney (Devin S. Sikes) It would be.

14:38 They're in fact related your honor because without a proper termination we don't even get to the signing of the 2019 agreement.

14:44 Judge Dyk Well there is I understand that 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.

14:59 Appellant Attorney (Devin S. Sikes) That's correct Judge Dye.

15:02 Unknown Okay.

15:04 Judge Dyk Okay, all right.

15:05 Appellant Attorney (Devin S. Sikes) Here I'm into my rebuttal.

15:06 I'll give the remainder of my.

15:09 Okay, great.

15:10 Judge Dyk I'll give you three minutes for rebuttal.

15:11 Appellant Attorney (Devin S. Sikes) Okay.

15:12 Thank you.

15:12 Judge Dyk And we'll hear from the government.

15:17 Appellant Attorney (Devin S. Sikes) Yes, good morning your honors.

15:19 This is Robert Capura of the Department of Justice Civil Division.

15:23 And good morning and may it please the court.

15:26 The Court of International Trade was correct in its termination.

15:30 Judge Dyk This is Judge Dye.

15:31 I find very odd the notion that the signing of the 2019 agreement rendered the challenges to the 2013 agreement moot.

15:42 It may be.

15:43 It may be that those challenges don't have any merit, 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.

16:08 Appellant Attorney (Devin S. Sikes) Well, your honor, it goes to the release that could be provided by the court.

16:15 The Court of International Trade, 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.

16:37 The 2019 suspension agreement provides all of those things.

16:43 So there was no.

16:45 Further relief that the trade court could have provided after the suspension agreement.

16:52 Judge Dyk But they reintended the 2013 agreement that that would be a form of relief.

16:58 Well, I mean, it may be that the claim on the merits fails, but it doesn't I don't quite understand why the execution of the 2019 agreement automatically renders the case moot.

17:13 And there's also the claim that the 2019 agreement.

17:16 Was entered into by duress.

17:21 That may be that that claim has no merit, but it's it seems to me that the it's not a question of mootness.

17:29 It's a question of lacking a claim on the merit.

17:32 Appellant Attorney (Devin S. Sikes) Well, your honor, the 2019 agreement replaced and superseded the 2013 agreement.

17:43 So, again, there there was no action that.

17:47 The trade.

17:48 Court.

17:48 Judge Dyk Could have taken once the once the agreement was entered into and their their theory is the agreement 2019 agreement should be set aside for duress and the determination of the 29th of the 2013 agreement should be held to be improper because it didn't comply with the statutory standard.

18:07 I don't understand why those claims are moot.

18:11 They may not have merit, but why are they moot?

18:15 Appellant Attorney (Devin S. Sikes) Well, your honor, with regard to their claim of duress, as was mentioned.

18:20 Earlier, the parties can withdraw.

18:23 From the 2019 agreement at any time, that's an argument that the claim has no merit.

18:31 Judge Dyk That's not an argument about mootness that they were to prevail on the duress claim and the statutory violation claim relief would be available.

18:40 It's not moved.

18:44 Appellant Attorney (Devin S. Sikes) Well, again, your honor, the, the, the issue.

18:50 With regard to the mootness simply goes to.

18:53 To what the trade courts could order, what action the trade court could order commerce to take the, the effect of withdrawing from the 2013 agreement was that commerce, you know, again, took those actions I've mentioned earlier, they suspended liquidation and sought the cash deposits and continued with the investigation.

19:19 So those were the actions.

19:22 That's the, the challenge.

19:24 That was, that's the effect of the challenge to the withdrawal from the 2013 agreement would be to prevent commerce from taking those actions.

19:33 And what, what our argument is that because that was the effect of the withdrawal.

19:41 The, uh, signing of the 2019 agreement had that effect.

19:47 Judge Dyk So there was nothing further than the 2019 agreement and reinstate the 2013 agreement.

19:53 That's significant relief that's available to them.

19:56 They may not be entitled to it.

19:58 But the claims aren't mood, are they?

20:02 Appellant Attorney (Devin S. Sikes) Well, again, your honor, we believe that they are because they voluntarily.

20:07 Entered into the 2019 agreement.

20:10 Judge Taranto Can this is, this is just Toronto.

20:13 Can I ask, I guess, um, to follow, follow through on this?

20:17 I had understood.

20:19 I guess it's sort of two parts to, to what I want to ask you about.

20:25 I had understood.

20:25 That.

20:28 The principal.

20:31 Let's call it mootness contention, but the contention that no relief is available.

20:38 That could benefit the plaintiffs by a ruling on the illegality of the termination of the 2013 agreement that the principal point.

20:49 What required requires us to say.

20:54 Whether.

20:55 On the motion to dismiss.

20:58 The 2019 agreement is invalid for duress.

21:04 Now, I think I hear you saying.

21:07 That.

21:08 Somehow.

21:09 Even without our deciding that, because if, if we were to decide, there's a viable plausible non rule 12.

21:17 The.

21:19 Claim.

21:21 Of duress.

21:23 Do you still have an argument?

21:25 That.

21:26 The challenge to the 2013 agreement.

21:29 Um, is not.

21:31 A live one that is, is not one from which the plaintiffs could secure any relief.

21:38 Appellant Attorney (Devin S. Sikes) Well, your honor, if I'm understanding your, your question correctly, the, the other.

21:44 Problem that we're confronted or that appellants are confronted with here.

21:48 Is that.

21:50 There is no.

21:52 Challenge.

21:54 To the 2019 agreement.

21:55 In three of the four cases presently before the court.

21:59 There is no attempt to challenge the terms of the 2019 agreement.

22:04 And as council mentioned earlier, the one case that does contain a challenge.

22:09 Doesn't actually challenge the terms of the 2019 agreement itself.

22:13 It simply alleges that the 2019 agreement.

22:17 Was only entered into under duress.

22:20 From withdrawal from the 2013 agreement.

22:23 So in other words, that's not a direct challenge.

22:25 To the 2019 agreement.

22:27 So.

22:27 Judge Taranto I'm not sure.

22:29 I'm not sure why it matters.

22:31 Whether it's a direct challenge.

22:33 If I thought all the plaintiffs were say.

22:35 All of the plaintiffs here are saying no.

22:39 That.

22:40 The.

22:41 2019 agreement.

22:43 Can't.

22:44 Have any.

22:46 Negative effects on our ability to challenge the 2013.

22:50 Termination, which is what.

22:52 The CIT said it did have.

22:55 Because that agreement.

22:57 Is void.

22:59 For duress.

23:00 Have to decide that at least.

23:06 Or are you saying that somehow.

23:09 Even if the 2019 agreement is.

23:12 For 12 B purposes.

23:16 Void.

23:17 For duress or that the plaintiffs.

23:19 Even if we say that the plaintiffs have a merits claim that they should be allowed to move forward in the litigation with that.

23:26 Still.

23:27 There is no possible relief from the challenge to the termination of the 2013 agreement.

23:34 Appellant Attorney (Devin S. Sikes) Well, I would agree with your honor that the plaintiffs are seeking to.

23:41 Avoid the 2019 agreement.

23:44 Based on duress.

23:46 But again, the issue with that claim, and I understand, you know, this will be addressed later.

23:52 There there's an issue as to whether or not.

23:55 You know, that claim is proper.

23:57 And timely, but beyond that.

24:00 They're asking the court to avoid the 2019 agreement when they can withdraw from it at any time.

24:08 And.

24:09 Judge Taranto I guess that that feels to me like an argument, which you have not yet made.

24:13 That indeed.

24:15 There is no plausible.

24:17 For 12 B purposes.

24:19 Claim of duress here.

24:22 Appellant Attorney (Devin S. Sikes) Yes, that's correct.

24:23 Your honor.

24:25 Judge Taranto And why is that?

24:28 Appellant Attorney (Devin S. Sikes) Why is there no plausible claim?

24:31 Judge Taranto What's the case law authority?

24:32 That says when the allegation of duress is made.

24:36 At least on.

24:38 These facts that that doesn't rise.

24:41 You know, meet the probably standard for plausibility.

24:45 Appellant Attorney (Devin S. Sikes) Well, your honor, the in terms of the case was discussed in the earlier argument.

24:52 It's the plaintiff's burden to invoke the court's jurisdiction.

24:59 And they haven't cited to a single case.

25:01 Which would support.

25:03 An allegation of duress in these circumstances.

25:07 In fact.

25:08 Judge Dyk That's an argument that they don't have a viable duress claim.

25:11 It's not a mootness argument.

25:14 You don't you agree that we have to decide the duress issue.

25:18 Whether there's a reasonable claim here.

25:22 A viable claim.

25:26 Appellant Attorney (Devin S. Sikes) Yes, your honor.

25:27 There there's a claim regarding duress.

25:30 But again, as counsel.

25:33 I hear my time is expended.

25:35 If I might briefly conclude.

25:36 Go ahead.

25:39 As as counsel indicated earlier.

25:42 That that challenge.

25:44 Would go to.

25:47 The the the twenty nineteen agreement there.

25:50 They're alleging that the twenty nineteen agreement was entered into under duress.

25:55 But again, the problem with that is.

25:58 The only way that they there's really two issues with it.

26:01 First and foremost, as we've already mentioned.

26:03 They can withdraw from that agreement at any time.

26:06 And second of all.

26:07 The duress that they're alleging.

26:10 Was the continued investigation.

26:13 And the suspension of liquidation and so forth.

26:16 Which if they had allowed that to proceed.

26:20 There.

26:21 There was a way for them to challenge that under the statute.

26:25 Once the final determination had.

26:27 Had issued.

26:29 There was no other duress beyond that.

26:32 And so there.

26:34 Judge Dyk The duress claim.

26:35 That's not a claim, don't we.

26:38 Appellant Attorney (Devin S. Sikes) Well, certainly.

26:40 Appellants have alleged that your honor.

26:42 So, so, yes.

26:43 The the claim.

26:44 The argument should be decided.

26:47 But again.

26:47 That goes to their argument on the twenty nineteen agreement.

26:53 And has no impact on the fact that their agreements to the terms of the twenty nineteen agreement.

27:02 Removed any possibility of relief.

27:05 Related to the twenty thirteen agreement.

27:11 Judge Dyk Okay.

27:11 Unless my colleagues have any questions.

27:14 Let's.

27:14 Hear from Mrs.

27:16 Alvis.

27:17 Clerk On behalf of the Florida.

27:28 This morning.

27:29 About.

27:30 Whether there was.

27:31 An opportunity.

27:32 For respondents.

27:34 Mexican respondents.

27:35 To challenge.

27:36 The two thousand and thirteen agreement.

27:39 And in fact.

27:39 There was.

27:41 Attempted to prematurely.

27:43 Challenge.

27:44 The two thousand and thirteen agreement.

27:47 And as Judge.

27:47 Toronto may recall.

27:55 That the CODIS had filed.

27:57 We're seeking.

27:57 A writ of mandate.

28:00 National trade.

28:00 Which had been.

28:01 Their request.

28:02 For fifty nine.

28:20 The prior agreement.

28:28 They were not.

28:36 Changing.

28:37 The legality.

28:38 Of the withdrawal.

28:39 Judge Taranto This is.

28:40 This is.

28:41 Just trying to.

28:43 Can I just.

28:43 Ask.

28:44 Is the argument.

28:45 Of the plaintiffs.

28:48 Who are raising.

28:49 A twenty thirteen.

28:50 Termination.

28:51 Agreement.

28:51 In front.

28:53 Right now.

28:53 That is all the ones.

28:54 Who are in front of us.

28:55 Now.

28:55 Where they also.

28:57 Essentially.

28:58 Party.

28:58 To that concession.

29:01 Clerk Your honor.

29:02 Yes.

29:02 Because.

29:03 Although I'm referring to them.

29:04 Simplistically.

29:13 We're not.

29:14 Part of that.

29:17 Litigation.

29:18 Judge Dyk Okay.

29:18 Okay.

29:19 So.

29:19 Of those.

29:20 Three.

29:20 Parties.

29:21 Bio.

29:21 Parks.

29:22 Red.

29:22 Sun.

29:23 And Jim.

29:23 D.

29:24 Are they raising.

29:25 The.

29:26 Twenty thirteen.

29:27 Agreement.

29:28 Point.

29:28 Here.

29:28 In their complaints?

29:37 Clerk Asked.

29:38 On.

29:38 the point, but yes. They're all challenging the termination and whether or not the termination

29:44 Judge Taranto was... I thought perhaps not Red Sun, but the others, yes. My notes could be wrong about that.

29:54 Clerk Anyway. Red Sun also has a separate... So what do you make then of, I guess,

30:10 Judge Taranto our mandamus ruling or what was said? You were quoting a concession. Can you just go back to

30:21 say what you think that was or what the words were? Yes. In the first instance, they brought

30:26 Clerk that appeal too early and they did seek... They could not have... Commerce had issued its final

31:05 determination and then appeal at that point in time. However, determination, that's when they

31:16 negotiated the 2019 agreement. And as CODIS has conceded in its brief at page nine, each of the

31:25 times that has...

31:27 Included prior agreements in 2002, 2008, 2013, the subsequent agreement each replaced the

31:35 preceding agreements. You wouldn't want to have multiple agreements in effect at the same time.

31:40 So the natural effect is when they negotiated and agreed to negotiate the 2019 suspension

31:46 agreement, that then replaced the 2013 agreement. Well, that may be, but if the 2019 agreement is

31:55 Judge Dyk set aside on a duress theory that doesn't exist anymore...

31:59 And then that opens up a challenge to the 2013 agreement, doesn't it? Your Honor, with respect,

32:08 Clerk I think there... I agree with my colleagues this morning that one, they have not offered...

32:20 Two, to the extent that they believe that there was duress, they didn't challenge the suspension

32:25 agreement. This was another opportunity that they had if they believed that... What do you mean?

32:30 Judge Dyk I don't understand what you're saying. They didn't challenge the suspension agreement?

32:34 They're challenging the 2019 agreement.

32:38 Clerk No, Your Honor, there's a statutory mechanism for them to appeal the 2019 agreement. They had to

32:45 file a summons within 30 days after the notice of the suspension agreement was published, and there

32:51 was no timely appeal of the suspension agreement. Why does that time limit apply to a duress claim?

32:59 Which provision of the statute? The statute provides 19 U.S.C. 1516 A.A. 2B suspension

33:30 agreements. It was published. Is that an... This is Judge Prost.

33:39 Judge Prost Just to clarify, was that something that the CIT referenced in her decision?

33:44 Clerk The CIT did reference in her decision that there was no timely challenge to the suspension

33:53 agreement. Yes, Your Honor, I believe so. And citing this statutory provision you're

33:58 citing now? I'm looking for that. I apologize. Unfortunately, I don't have the direct site in

34:06 Judge Prost front of me, but to the best of my recollection... Your recollection is that that was the basis on

34:11 Clerk which the CIT relied? Yes, I believe that the CIT would have referenced that.

34:22 Judge Taranto And your position is that since any challenge to the 2013, to the termination of the 2013

34:30 agreement would depend on avoiding an invalidation of the 2019 suspension agreement and the time

34:43 limit for challenging that agreement was missed without...

34:53 A challenge that even a duress argument, which would be a form of challenging the 2019 suspension

34:59 agreement, is unavailable to the plaintiffs here. Did I understand? That's what I thought.

35:07 Judge Dyk I just heard from you. The statute talks about a challenge to the suspension of the investigation.

35:22 Clerk It doesn't talk about a challenge to the agreement, right? If you'll allow me to respond...

35:40 When we're asking questions, your time hasn't expired. Good. Thank you. The question of the

35:50 investigation, but the suspension of the investigation occurs.

35:54 Judge Dyk Anything further? I hear no further questions. Thank you, Ms. Alves. And Mr. Sykes, you have three minutes.

36:10 Appellant Attorney (Devin S. Sikes) Thank you, Judge Dyke. A few points, if I may. First of all, the government said a few times that,

36:18 you know, the signing of the agreement simply wiped away any claims that we might have as to the

36:23 termination of the 2013 agreement. But nothing in the 2019 agreement itself says that, in fact,

36:29 the appellants, the folks who signed the agreement, waived any claims as to commerce's

36:34 termination of the 2013 agreement. So that's point number one. Point number two, with respect

36:40 to relief, Judge Dyke, you raised a few questions on this point. As you know, this past summer in

36:46 July 2021, this court affirmed the CIT decision in CSE Sugar. In that particular case, the CIT

36:55 had invalidated and set aside an amendment to a CSE Sugar agreement. And in that particular case,

36:59 the CIT had a separate suspension agreement until commerce correct the process. And once it did,

37:05 then the CIT approved that amendment and it was appealed. And this court affirmed in a Rule 36.

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

37:17 The other point I will make is one about collateral consequences. Now, as you know,

37:22 in our briefs, we talk about this more directly on the claims with respect to the dumping

37:26 determinations. But we also respectfully submit that the collateral consequences are not the

37:29 federal consequences, exception and mootness apply here too, in that the agreement contains

37:34 numerous provisions that are burdensome on appellants. And commerce continues to conduct

37:39 proceedings that administer those burdensome terms, both in sort of the run-of-the-mill

37:44 quarterly audits and quarterly certifications, but also in these invasive administrative reviews,

37:50 the preliminary results of which just first issued in October of last year.

37:54 So we do think, even if you were to agree with the government, the signing of the agreement,

37:59 somehow, of the 2019 agreement, somehow mooted our claims as a 2013 agreement,

38:04 we think that the collateral consequences exception applies with force here,

38:09 just as it does to the dumping determinations.

38:11 Judge Taranto I'm sorry, the collateral consequences of what?

38:14 Appellant Attorney (Devin S. Sikes) The collateral consequences of the agreement itself.

38:18 Judge Taranto Which agreement? Give a date.

38:20 Appellant Attorney (Devin S. Sikes) Sorry, I'm sorry. Yes, the 2019 agreement, Your Honor.

38:25 Judge Taranto Okay. And can you address the point,

38:30 that Ms. Alves was making about how at least one, perhaps two statutory deadlines for making a

38:42 challenge were missed? The first statutory deadline would be the deadline for challenging

38:51 the termination of the 2013 agreement, and that was missed because by the time that the whole issue

38:58 was, but before that, it was, it was, it was, it was, it was, it was, it was, it was, it was, it was,

39:00 that deadline, as I understand it, came, came round, you all signed the 2019 agreement

39:06 and therefore thought, oh, we don't actually need to challenge the termination, and then second,

39:12 the entry, the deadline for challenging the entry into the 2019 agreement, let's assume that that

39:20 equates with the suspension under the statutory before section, that that deadline also came and

39:27 went without a challenge.

39:30 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?

39:43 Appellant Attorney (Devin S. Sikes) Sure.

39:43 So thank you, Judge Toronto.

39:46 So Ms. Alva's response goes more towards jurisdiction, which Mr. Witten will handle, but I'll say this.

39:51 As you know, we, as I said to you, have appellants in 20, 22, 32, and I think this is true for all appellants.

39:59 You know, we filed three separate actions.

40:01 To the extent that this court, and I'm going to say little i, which is the provision that Ms. Alva's referenced, we did file our action within the 31 to 60-day window that that allows.

40:14 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.

40:25 Judge Dyk Okay, but that doesn't really answer the question of whether you can have...

40:29 We can have an independent action challenging the 2013 agreement when the contention is that there's a statutory time limit that creates a bar.

40:41 Appellant Attorney (Devin S. Sikes) And I'm sorry, I believe that the argument was that somehow we have to file within 30 days from the signing of the agreement to challenge that.

40:50 Is that correct, Your Honor?

40:51 Is that your understanding?

40:52 If that was my understanding.

40:56 Judge Dyk It's 1673 CI.

41:01 I understand.

41:02 Appellant Attorney (Devin S. Sikes) CI, right.

41:03 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.

41:11 That's under 1516A, A2B4.

41:17 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.

41:29 So we have timely filed an appeal.

41:34 Judge Dyk I hope that answers your question.

41:36 Any further questions?

41:38 No.

41:39 All right.

41:40 Thank you, Mr. Cite.

41:42 Thank you.

41:42 Now, on issue number two, we'll hear from Mr. Derling.

41:49 Appellee Attorney (Douglas Glenn Edelschick) Thank you, Your Honor.

41:51 I'm James Derling.

41:53 I'm addressing issue number two.

41:55 Whether the case presents...

41:57 Judge Dyk Wait, wait, wait.

41:59 State which group you represent.

42:01 I know you're speaking on behalf of all the parties in these four cases, but which...

42:07 Sure.

42:07 Your client.

42:09 Appellee Attorney (Douglas Glenn Edelschick) Apologies, Your Honor.

42:10 We represent Red Sun Farms and Gem D.

42:14 Okay.

42:15 Both?

42:16 Yes.

42:17 And so that's basically matter 2230 and 1292.

42:25 So my issue is a mix of standing and ripeness arguments, but they really involve a common core set of issues.

42:33 Plaintiffs have standing because they're already suffering injury, in fact, and the dispute is ripe.

42:38 Because they're standing and because there's a sufficient risk of immediate hardship.

42:42 Let me start with two key facts that are really central to understanding this issue.

42:48 The first is that the 2019 final dumping determination increased the dumping margins.

42:54 And the second key fact is that determination was never suspended.

43:00 I want to stress the final determination was never suspended because the government in its briefs repeatedly refers to the final determination was never suspended.

43:08 The final determination was suspended, but that's not technically correct, Your Honors.

43:14 In fact, the final determination was finalized in issue...

43:18 Judge Dyk In terms of justiciability, why isn't this case just like MetaMune?

43:24 Appellee Attorney (Douglas Glenn Edelschick) The case actually is quite similar to MetaMune, 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 information.

43:39 But it's not like there is a general consideration when it comes to injury being suffered.

43:40 And indeed, we completely agree with the sentiment in MetaMune that when it's the government doing this, when it's the government setting up a sword of Damocles hanging over 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.

44:03 There's current harm being suffered.

44:05 The fact that there are paths that would lead to even greater harm does not matter.

44:09 Judge Dyk It strikes me you're making this much too complicated.

44:14 MetaMune says that if you have an agreement and you have a theory that the agreement would fall if you're successful in that case on establishing patent invalidity, there's a case or controversy.

44:33 And isn't this the same thing?

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

44:44 Why isn't this the same thing?

44:46 Appellee Attorney (Douglas Glenn Edelschick) Your Honor, we would agree with that.

44:49 We agree that the current situation creates a cognizable – there's enough injury, in fact, to create cognizable dispute now.

44:59 And per MetaMune, there's no need to wait and take further steps, right?

45:04 Right.

45:04 In that case, it would be a cognizable dispute.

45:05 You don't have to breach the agreement and compound the injury to have a cognizable claim.

45:10 So we completely agree with that.

45:13 And so we completely agree with that point.

45:17 But fundamentally, the reason there is currently injury, in fact – obviously, MetaMune supports this.

45:25 But the reason we think MetaMune actually is correct in this particular context, right, is that there is current injury.

45:34 In fact, there is current injury.

45:35 In fact, the final determination still exists.

45:39 It is a final determination.

45:41 It has legal consequences.

45:43 What was suspended was the continuation of the investigation.

45:47 In the prior panel, you cited this language.

45:50 The suspension is suspension of the investigation.

45:53 It's not suspension of the final determination.

45:56 The final determination is currently having harm.

46:01 And let me make that very concrete.

46:05 Judge Taranto I'm sorry.

46:06 This is Judge Drano.

46:07 I think I want to take a couple of steps back and then come back to what you're saying.

46:11 I guess I had thought that the fairly simple view of why you have standing and the matter is ripe and all of that is that if your view of the challenges to the final determination were to prevail,

46:39 that the result 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.

46:56 Why is that not enough, irrespective of some, I don't know, this sort of Damocles idea that you're laying out?

47:08 Appellee Attorney (Douglas Glenn Edelschick) Your Honor, we would agree with that.

47:10 We agree that is enough.

47:12 With respect to different parties, the challenges to the final determination might result in different outcomes.

47:20 There are at least some Mexican exporters for whom that might lead to a de minimis determination,

47:26 but it is certainly true that for all of the Mexican importers, it would lead to lower dumping duties,

47:32 because that's really kind of the subtext of what's going on here.

47:36 This was termination of the 2013 agreement.

47:39 So that the government could take steps to impose significant price increases on Mexican exporters,

47:46 that on average, the dumping margins increased by about 12 percent.

47:52 They were at about 18 percent as measured by the all others rate, and they increased to about 30 percent.

47:59 So this really, you know, stepping back from the legal technicalities, economically,

48:04 this was about taking an old agreement that imposed one set of dumping duties,

48:09 and replacing it with a new agreement with significantly higher dumping margins

48:14 that is currently causing injury to the Mexican exporters.

48:22 Judge Taranto And do the suspension agreements set minimum prices?

48:27 Appellee Attorney (Douglas Glenn Edelschick) Yes, they do, Your Honor.

48:29 The way it works and the relationship between the final determination and the agreement

48:33 is you have a determination by commerce, either a preliminary determination

48:38 or if the case is a preliminary determination, you have a determination by commerce,

48:40 and the process is continued, a final determination.

48:42 Based on that determination, a suspension agreement sets reference prices.

48:48 The idea is to set prices that are designed to eliminate most of,

48:52 eliminate approximately 85 percent of the alleged dumping.

48:56 So there's this connection.

48:57 The final determination essentially sets margins which imply prices that have to be charged in the U.S. market.

49:06 The suspension agreement then goes on to basically say,

49:09 if you keep prices above a certain level, then you are in compliance with the agreement

49:15 and we won't take any further actions.

49:17 That is real and concrete, as you heard in the end of the prior panel.

49:23 Judge Taranto Just to be clear, do the complaints by the plaintiffs here assert that if the arguments being made

49:33 to challenge the 2019 final determination succeeded,

49:39 that they would be better off than if...

49:43 Yes, Your Honor.

49:44 Okay.

49:45 Appellee Attorney (Douglas Glenn Edelschick) Yes, Your Honor.

49:46 For individual plaintiffs, the situation might be somewhat different,

49:50 but certainly they all are alleging that they would be better off if they were not forced

49:56 to comply with the regime created by the 2019 final determination.

50:02 The 2019 final determination fundamentally changed the landscape.

50:07 It forced the Mexican exporters to support the agreement.

50:10 start charging higher prices. It forced the Mexican exporters to go through these compliance

50:16 reviews and, you know, going through the procedure and demonstrating that they're charging high

50:21 enough prices. The fact that there could have been a worse outcome per metamune, that's not

50:29 required here. There's concrete, real harm being suffered now, okay? So it's basically concrete

50:42 harm in terms of the ongoing operation of the agreement. I'm sorry, I think I just heard the

50:48 buzz for my time. Did I? That wasn't the buzz. No, okay, I'm sorry. So it's not just the operation

50:59 of the final determination and the compliance reviews. It's also kind of concrete current

51:07 injury in the practical operation of the agreement.

51:16 Because it's dictating prices that have to be charged. Private companies suffer harm when the

51:25 government steps in and requires them to charge higher prices. That's the actual point of the

51:32 suspension agreement, to force the government, the government to force private parties to charge

51:38 higher prices. And that's exactly what is happening here. The other reasons there's concrete injury

51:48 is the fact and the arguments by the government are not persuasive. First, as you'll hear in panel

51:55 three, that's precisely why Congress authorized a jurisdictional path to bring this kind of case.

52:02 It would seem odd for Congress to create jurisdiction to allow a fact pattern to be brought into

52:09 court if that wasn't congressional recognition that in that fact pattern was some cognizable harm.

52:16 And the fact that the

52:18 Mexican exporters here can terminate the agreement in no way eliminates the injury in fact.

52:24 All terminating the agreement would do is basically put them in the situation of metamune, which is

52:30 terminate the agreement and then suffer greater harm from having done so. Thank you.

52:37 Judge Dyk Thank you, Mr. Gerling. Okay, we'll hear from Mr. Edelchik. So why doesn't metamune sink your

52:51 justiciability or what?

52:52 So metamune's a little moreMM2 often than any other argument, Acuming that we find that there's a provision of the statute

52:57 that allows review of the final determination

53:01 before there's an issuance of an order.

53:06 Appellee Attorney (Douglas Glenn Edelschick) Metamune is vicious.

53:41 Judge Dyk They're saying here too! We're paying money under the 2019 agreement that we shouldn't have to pay.

53:47 Appellee Attorney (Douglas Glenn Edelschick) But it takes to get it on the, on the challenge to the final anti-dumping determination under the statute, if there's no dumping

54:23 Judge Dyk margin, there's an automatic termination of the agreement. And even if not, they can still then

54:28 make their choice to terminate the agreement on their own and escape the payments that they have

54:36 Appellee Attorney (Douglas Glenn Edelschick) to make under the 2019 agreement, right? Government enforcement in MetaMune, in fact,

55:08 Judge Dyk the Supreme Court in MetaMune said there wasn't and said this was a private dispute.

55:14 Appellee Attorney (Douglas Glenn Edelschick) That's right, Your Honor, but the government cases.

55:18 This is just, Your Honor, but I mean, I guess I keep coming back to the question,

56:10 Judge Taranto why isn't this as simple as they allege, highly plausibly, that they would be better off

56:19 if they won their challenge to the final determination because under the governing

56:26 legal standards, that would enable them to get out from an unduly burdensome current

56:32 monetary obligation. Why is that?

56:35 Insufficient for Article 3.

56:54 Judge Dyk They're paying duties under, they're paying effectively duties under the 2019 agreement.

57:00 Appellee Attorney (Douglas Glenn Edelschick) No, no, Your Honor, it actually simply establishes.

57:09 Judge Dyk It's setting prices.

57:10 Appellee Attorney (Douglas Glenn Edelschick) It's reference, they're charging.

57:14 Judge Dyk That injures them.

57:15 Appellee Attorney (Douglas Glenn Edelschick) The only challenge to the 2019 agreement posits in 25 years into one suspension after another.

59:43 This is Judge Prost. This may align into our third issue.

59:58 Judge Prost But what is your response to the argument that if they waited until the anti-dumping order

60:03 issued, they would be untimely?

60:07 Then you would be in here saying, making, you know, the cousin of the argument you're

60:12 making here, that they didn't appeal in time.

60:15 Appellee Attorney (Douglas Glenn Edelschick) No, Your Honor.

60:16 Anything further?

60:53 That final determination against any...

61:33 Judge Dyk Ms. Alves.

61:34 Clerk Thank you, Your Honor.

61:37 I want to make just a couple of quick...

61:41 Determination is not in effect.

61:59 ...agreement isn't.

62:02 We also then concur with Mr. Edelstein.

62:04 One of the benefits they have right now is that they would face if and when there is

62:21 an anti-dumping duty order, while the suspension agreement is in effect, so that they don't

62:28 have to pay duties.

62:31 In fact, in its brief, Mexican exporters may or may not decide if the dumping margins were

62:48 set in a lawful manner.

62:50 And that's in their...

62:51 Basically, what they're saying is, well, we'd like to see what all of the options are.

62:58 We don't want to have to pay any duties right now.

63:00 We like the suspension agreement in that sense.

63:03 But we'd like to be able to challenge the final determination now, what margins we're

63:08 going to face, and then whether or not we want to keep the suspension agreement in place,

63:13 or we might withdraw at that point, because we might...

63:15 Judge Taranto So, you're saying, like, you're sort of conveying the idea as if it were a perfectly self-evident

63:25 point, that that's somehow a, I don't know, an improper posture to take.

63:31 Why in the world is that improper?

63:34 Clerk It's improper.

63:34 It's improper because under the statute, the statute sets forth a logical sequence of

63:40 timing.

63:41 They actually had an opportunity to challenge the final determination after Congress issued

63:49 the determination.

63:51 They had not already entered into the suspension, but under the terms of the statute, because

63:58 the suspension agreement is in effect, the determination is not in effect, and therefore

64:03 they have to wait for the determination.

64:12 That's all getting into the statutory argument.

64:23 Judge Dyk Which is the next issue.

64:25 The question is, if the statute provides an avenue for them to challenge the final determination

64:32 now, in fact, there is a case or controversy.

64:36 It's not an Article III problem, right?

64:39 Clerk Well, there is no opportunity for them to challenge that.

64:46 Judge Dyk But assuming that the statute provides an opportunity, there's no Article III problem,

64:51 right?

64:52 Clerk The statute does eventually provide them with an opportunity after.

64:59 Oh, you're not answering my question.

65:02 Judge Dyk Hypothetically, let's assume that the statute provides an avenue for challenging the final

65:07 determination now.

65:08 There is no Article III problem, right?

65:12 Clerk If the statute allowed them to challenge now, correct.

65:16 There is a Article III problem.

65:23 Judge Dyk Okay.

65:24 Anything further?

65:25 Clerk I also wanted to respond to your question about the applicability of Metamune.

65:34 Metamune is not at all applicable here because this is a situation...

65:38 This is a situation where I agree with Mr. Edelschick.

65:41 The respondents had choices.

65:43 They had a choice to appeal the final determination and not enter into the suspension agreement

65:50 or they had an opportunity to enter into the suspension agreement, which they took.

65:54 So this is not a situation they did not have an option to.

66:03 Moreover, there's an elaborate statutory scheme here.

66:08 Ignoring, he kept referring to injury to the Mexican respondents, the notion that they

66:15 had suspension agreement or an anti-dumping duty order.

66:21 This is a remedial.

66:22 That is the point of the statute.

66:24 They want to be dumping the Department of Commerce.

66:29 In its primary determination and in its final determination, the National Trade Commission

66:36 found injury.

66:37 In those circumstances, the domestic industry...

66:47 Judge Dyk Thank you, Ms. Alice.

66:48 Thank you.

66:50 Mr. Gerling, we'll give you two minutes if you have anything further to say.

66:54 Appellee Attorney (Douglas Glenn Edelschick) Just a few, three brief points.

66:57 First, on the issue of paying money and whether that's a distinction with Metamune, being

67:03 forced to pay money is a distinction with Metamune.

67:04 The fact that the price of the suspension agreement is paid at a higher price is an analogous

67:06 form of injury.

67:07 The dumping margins in the final determination and the reference prices in the suspension

67:11 agreement are really two sides of the same coin, because the reference prices are being

67:16 set based on the dumping margins that were found, and the dumping margins were impermissible

67:22 from our perspective.

67:23 They were unreasonably high.

67:24 That's the second point.

67:26 The reference prices, as reflected in the dumping margins, the dumping margins were

67:32 too high.

67:33 Yes, this is a remedial statute, but the remedy can only be extended as far as there is a

67:39 reasonable basis for setting those dumping margins.

67:42 Our core allegation is the 2019 final determination set impermissible dumping margins, and that's

67:50 what's causing the current injury in fact.

67:52 And then finally, whether that final dumping determination is still in effect, it absolutely

67:57 is in effect.

67:59 It was finalized, right?

68:01 I direct the court.

68:03 I direct the court to Bennett v. Spear, where Justice Scalia was commenting on when to think

68:08 of an agency action as being final, and he basically said the agency action is final

68:13 when legal consequences will flow.

68:15 There are legal consequences flowing from the final determination.

68:20 The dumping margins in that final determination is right now being used in compliance reviews

68:27 to see whether the Mexican exporters are in compliance or whether they're going to be

68:32 subject to penalties under the terms of the suspension agreement.

68:37 Ongoing proceedings, preliminary determination was already made, final determination is imminent

68:42 at the end of January.

68:43 This final determination is real, it is concrete, it is having immediate consequences, and for

68:51 all those reasons, we think there is a sufficient injury in fact to allow for a currently cognizable

68:59 legal dispute.

69:00 Thank you.

69:03 Judge Dyk Okay, thank you.

69:04 That concludes our argument on issue number two.

69:07 With respect to issue number three, we'll hear first from Mr. Winton.

69:12 Unknown Speaker Thank you.

69:13 This is Jeffrey Winton, counsel to the Biopark Ace Group, which is your case numbers 22,

69:18 65, 66, and 67.

69:23 The issue whether the jurisdictional provisions of the statute require us to wait until an

69:28 anti-dumping order is published, the statute is absolutely clear on this.

69:34 Not only are we...

69:35 Nothing about this statute is absolutely clear.

69:39 Well, I would say it's complicated, but it's not unclear, and you just need to parse through

69:47 the provisions.

69:48 When we sat down to prepare our appeals back in 2019, that's what we did, and we puzzled.

69:54 Which is this?

69:56 Is this a 2B-I, an appeal of a final determination, or is it a 2B-4, which is an appeal of a suspension

70:04 agreement including any final determination?

70:06 In the continued investigation, and we said it could be either, and so we filed appeals

70:11 under both provisions.

70:14 Judge Dyk As I understand it, you're basically relying on three provisions here as giving jurisdiction.

70:20 One is this IV provision with the including language.

70:25 Another one is NAFTA provision, and then the general residual provision, correct?

70:31 Right.

70:33 Unknown Speaker And the argument that we have to wait for the...

70:40 Judge Dyk Before you get to that, tell us where we have jurisdiction, and then we'll worry about

70:47 the timing issue.

70:49 Sure.

70:50 So the jurisdiction...

70:52 Where the CIT has jurisdiction.

70:54 Unknown Speaker Right.

70:55 The CIT has jurisdiction under 28 U.S.C. 1581, which says, I think it's C, says that any

71:03 action described in 1516A...

71:07 The court has jurisdiction over it.

71:09 So that handles the first two theories of jurisdiction.

71:12 And then the third theory is 1581I, residual jurisdiction.

71:18 So the question is, is this an action described in 1516A?

71:23 If it is, then the CIT has jurisdiction under 1581C.

71:28 And if it's not described in that, then it falls under the residual jurisdiction of 1581I.

71:36 If you...

71:37 Then start going through the procedures, you know, the 1516A language, you know, which

71:43 is this?

71:43 Is this a final determination in an investigation?

71:47 And the government says, no, it's a something different because it's a continued investigation

71:54 suspension, but that's not a final determination under 1673D or whatever the tariff act provision

72:01 is, 770, 735, whatever.

72:06 They say that's...

72:07 It's not a final determination under 1673D.

72:09 But that's actually flatly wrong because the statute itself says that a determination

72:16 of continued investigation is a final determination under 1673D.

72:20 Judge Dyk Now, we're talking about your NAFTA argument.

72:24 No.

72:25 Well, yes.

72:25 This is the NAFTA argument under...

72:28 Would the argument that 1516A gives jurisdiction?

72:38 Unknown Speaker Give me a second.

73:01 No.

73:02 No.

73:04 Yes.

73:04 The private court of jurors says there's no appeal.

73:17 There's been no NAFTA panel appeal.

73:19 So, then we're thrown back, you know, into team A5, which sets the deadline for appealing

73:28 a determination under NAFTA.

73:31 Judge Dyk Forget about the deadline.

73:33 We've got to find a provision that gives jurisdiction.

73:37 Right.

73:37 It has to be 1516G3AI, aside from the including provision, right?

73:46 Right.

74:01 Unknown Speaker 1516G3AI, yes.

74:02 A determination is reviewable under subsection A if the determination is thought to be reviewed

74:06 as a determination as to which no one has requested FTA review.

74:09 So, yes.

74:09 That makes this decision reviewable under 1516AA.

74:17 And then we fall under, on the NAFTA theory, A2BI, which is a final determination.

74:26 If this were not a NAFTA case, we would have to wait to the anti-dumping order.

74:32 The anti-dumping order was published to pursue an appeal of a determination under 2BI, because

74:38 that's what the statute says.

74:39 But it says if it's a NAFTA case, that doesn't apply.

74:43 There's a different deadline, which is you have to wait 30 days, and then you have 30

74:48 days to commence your appeal.

74:49 That's A5.

74:50 And so, that's our NAFTA theory, and it follows the statute.

74:54 If we were to wait for the anti-dumping order to be published, we would not be complying

74:59 with A5.

75:00 We'd be out of time.

75:02 And then we run out of, you know, the court, we fail the statute of limitations, which

75:09 is set forth in, it is complicated, 28 U.S.C. 2636, which says a civil action contesting

75:17 a reviewable determination in Section 516 is barred unless commenced within the time

75:23 specified in that section.

75:25 So, we have to file our appeal within the time specified in 1516A.

75:32 Which, because this is a NAFTA country, to the extent that this is a determination reviewable

75:38 under NAFTA, we fall under the A5 deadlines, which is the 31 to 60 days.

75:43 We could not wait for the anti-dumping order.

75:45 The second theory of jurisdiction is that this is a determination in a continued investigation

75:54 after suspension agreement, and that's a 2B4.

75:58 And the deadline for filing a 2B4 appeal is...

76:04 Judge Dyk Why does this fall under 2B4?

76:06 That sounds like a provision that's designed to enable someone who's a domestic producer

76:16 to challenge the decision to suspend the investigation.

76:22 Isn't that the legislative history of the provision?

76:25 Am I mistaken?

76:27 Unknown Speaker Well, the language just says what it says, and it says you can challenge the suspension

76:31 agreement including any determination.

76:34 Judge Dyk Well, why would someone who's subject to the suspension...

76:36 Why would someone who's subject to the suspension agreement be challenging the suspension agreement?

76:40 Unknown Speaker Well, but we're not...

76:43 We are challenging the final determination, and as the plain language of 4 says, we can

76:49 challenge a final determination in a continued investigation.

76:53 That's what the language says, and if you read it out as the Court of International

76:58 Trade has wanted to do, so why would Congress put that in?

77:02 I could see saying you can challenge a suspension agreement, period, right?

77:08 That would be one approach, and then I couldn't claim I have jurisdiction.

77:12 What does this additional language add here?

77:15 You know, challenging the suspension agreement, the purpose of this language, there must be

77:21 some purpose to this language, and it seems to me the only possible purpose is that you

77:26 get to appeal the final determination if it's a continued investigation.

77:29 What else could this language mean?

77:31 The notion that somehow the suspension agreement might include the subsequent final determination

77:36 is logically impossible.

77:38 Because the suspension agreement is always negotiated before you even know if the investigation

77:44 is going to be continued.

77:45 So what possible sense could this mean?

77:48 The only way this language makes sense is if you say Congress intended that you be able

77:54 to appeal both the suspension agreement and any final determination in a continued investigation,

78:00 and that you should do that on a different schedule than if it were, say, a determination

78:06 leading to an order.

78:07 And one reason may be...

78:08 You know, quite obvious.

78:09 In a normal case, you have a determination, the order is, you know, two months later.

78:14 You have the commerce determination, 45 days later, the ITC determination, and then like

78:19 a week later, the order.

78:21 So there's not that long a period.

78:23 But with the suspension agreement, there can be a very long period, as we've seen,

78:27 and it may be never between the determination and the anti-dumping order.

78:31 And therefore, it makes sense to allow you to bring the challenges to the determination

78:35 more quickly, which is what Congress has enacted.

78:38 I'd also say there's an argument here that...

78:44 Judge Taranto Mr. Winton, this is Judge Taranto.

78:48 Can I just double-check something?

78:50 Am I right in thinking that, I guess it's under 1673CG, both domestic exporters account

79:08 for a significant portion of exports, have the statutory right to request continued export,

79:14 even after a suspension agreement is entered into?

79:19 Unknown Speaker Yes, I believe that's right.

79:21 And, you know, that would have been...

79:24 Yes, I believe that's right.

79:26 I would need to double-check the statute, which I don't have.

79:29 Judge Taranto Does that have any implications for an understanding about whether Congress understood or didn't

79:38 understand or expected that parties to the suspension agreement would be among...

79:44 among those who questing continuation because the result of the continuation would matter

79:52 to them, even while the suspension agreement is in effect?

79:56 Unknown Speaker Yes, I think that's right.

79:58 But, Judge Taranto, I think you've got my client's position exactly right.

80:04 You know, we challenged the termination of the agreement.

80:07 We think the whole thing was unlawful and ultra-verious.

80:09 But beyond that, we think we're entitled to have...

80:13 to look at this and say, what were the real dumping margins?

80:16 What were the real dumping margins here?

80:18 And then to make a decision how to move forward, because we feel that we're harmed.

80:23 And my client is the one who's really exposed, because our dumping margin is 10% higher than

80:28 anybody else's.

80:30 But beyond that, you know, we want a properly calculated dumping margin.

80:35 And then we, you know, we think we're harmed by being forced into suspension agreement.

80:38 And if the dumping margin were lower, you know, we might be de minimis.

80:42 We might be out of this case.

80:43 It might be low enough that we say,

80:46 you know, having a dumping order is better than having to live with the suspension agreement.

80:51 And so going back to, it's not my statutory argument, but on the harm issue,

80:56 you know, we feel that we are harmed, obviously harmed.

81:02 I don't know.

81:02 I heard a beep.

81:03 I don't know if that means my time is up.

81:07 Many different beeps.

81:09 If I can, there's a notion that in the absence of the anti-dumping order,

81:21 the statute just doesn't allow appeals.

81:23 That is also flatly wrong.

81:25 Because if you look, it's not directly relevant here,

81:30 but it talks about situations where the ITC finds no injury.

81:36 Commerce finds dumping, the ITC finds no injury.

81:39 And the statute explicitly says you can appeal in that situation.

81:44 Statutory point is clear.

81:46 Congress did not think you always had to wait for an anti-dumping order to be published.

81:51 And in fact, in the NAFTA context, we cannot wait until the anti-dumping order is published

81:56 because then our appeal will be untimely.

82:03 I don't know, you know, I can keep walking through this,

82:06 but maybe it'd be better to save my time for the puddles unless there are questions.

82:12 Judge Dyk Okay.

82:13 Hearing none, thank you, Mr. Winton.

82:15 Appellee Attorney (Douglas Glenn Edelschick) Mr. Edelchik, 1516AG3A1.

84:03 Judge Dyk 16A3A1.

84:25 No, no, we're not, I'm not talking about the including provision.

84:28 I'm not talking about B4 now.

84:30 I'm asking a different question of whether under the NAFTA provisions,

84:34 which say,

84:36 that if you don't go to the bilateral panel,

84:41 you can get a determination under subsection A.

84:46 Appellee Attorney (Douglas Glenn Edelschick) Yes.

85:05 Judge Dyk No, you keep going to B4.

85:08 I'm not talking about B4.

85:09 Forget about B4.

85:12 There are two separate theories here.

85:14 They have a theory that 1516G3AI or 1

85:23 is an additional average,

85:25 which is not dependent on falling within four.

85:32 Appellee Attorney (Douglas Glenn Edelschick) I thought what I was hearing from Mr.

86:13 Judge Taranto Winton is that if you start with this G3A1,

86:18 and which does refer to a determination on that theory,

86:22 this is a 1516A2B1 case,

86:29 not a B4 case.

86:31 And so it doesn't,

86:32 and B1 is included in the definition of determination under G1.

86:47 I think he agreed that this was not a garden variety one,

86:53 but he said it is a NAFTA one.

86:56 Appellee Attorney (Douglas Glenn Edelschick) Right.

86:56 Judge Dyk Is your theory that this is not a final determination under 1673D?

87:05 Is that your theory?

87:06 Appellee Attorney (Douglas Glenn Edelschick) Not under B1.

87:08 Forget about B4.

87:13 Judge Dyk We're not talking about B4.

87:15 Appellee Attorney (Douglas Glenn Edelschick) Stop talking about B4.

87:30 Judge Dyk We're not talking about B4.

87:32 There's an alternative route to jurisdiction

87:34 that they have argued,

87:36 which has nothing to do with B4.

87:38 And we're going to ask you as to why that alternative theory is not correct.

87:44 Appellee Attorney (Douglas Glenn Edelschick) Why is this not a determination under B1?

88:22 Judge Dyk Final affirmative determination by the administrative authority under 1673D.

88:30 Why is that?

88:31 Why is that not within that language?

88:33 Appellee Attorney (Douglas Glenn Edelschick) Not a determination that falls under B1.

89:33 I have no question.

89:40 Judge Dyk Tell me what language excludes it.

89:43 Appellee Attorney (Douglas Glenn Edelschick) Final determination.

90:04 A final determination resulting from a continued investigation.

90:08 Specifically identified B1 determination.

90:18 In contrast.

90:54 Judge Dyk Fair to say that then you have no argument based on the language of B1

90:59 as to why this doesn't fall under B1.

91:03 Appellee Attorney (Douglas Glenn Edelschick) Not good to it.

91:16 Judge Dyk Specifically to tell me,

91:18 is there any language,

91:20 in B1,

91:21 that excludes this determination?

91:24 Appellee Attorney (Douglas Glenn Edelschick) Not in that year.

92:17 Judge Taranto Can I just ask you,

92:18 this is Judge Taranto.

92:19 Did you have an argument,

92:22 I don't think you've at least yet made it this morning,

92:26 that a final determination resulting from a continued investigation

92:30 is not made under 1673D?

92:38 Something about the language of either 1673C or 1673D?

92:44 1673D.

92:44 Would make that true?

92:46 Putting aside your argument about an implication of the related parts within 1516A.

92:53 Okay.

93:01 So put aside your argument about the structure of 1516A,

93:06 in which you make an argument about the relation of the various parts under A2A and A2B

93:19 and inside A2B.

93:21 Of little I and little IV.

93:23 Put that completely to one side

93:25 and focus just on the language of BI,

93:29 the one that says final affirmative determinations made under 735 of this Act,

93:35 which is 1673D.

93:37 Now, turn to 1673D.

93:41 Is there language in 1673D

93:44 or the provision that comes immediately before 1673C

93:50 that says,

93:51 when there is a continuation of the investigation

93:55 and that results in a final determination,

93:57 that particular final determination doesn't come within 1673D?

94:02 Or do you accept that that does come within 1673D?

94:07 Appellee Attorney (Douglas Glenn Edelschick) I'm not a...

94:09 What about 1673CF3,

94:47 Judge Dyk which seems to say that it is determination under 1673D?

95:14 Specifically dealing with continued investigation.

95:18 1673D.

95:20 1673CF3.

95:21 It seems to say that if there's a continuing investigation of the kind that we have here,

95:27 that that final determination is one pursuant to 1673D.

95:33 Appellee Attorney (Douglas Glenn Edelschick) The subsection B is dealing with an affirmative determination.

95:56 Judge Dyk It says, again, under such section,

95:58 referring back to 1673D.

96:01 Appellee Attorney (Douglas Glenn Edelschick) This is Jeff Turner.

98:43 Judge Taranto Can I ask you, how does the timing work?

98:45 I mean, I assume that there will be a timing,

98:48 and you know better than I what the normal expected range of that time gap is

98:53 between a suspension, B4 refers to,

98:57 and a final determination and a continuation after a suspension.

99:04 Multiple B4 actions have to be filed,

99:07 and then they get merged?

99:08 Or how does this work?

99:11 I thought I recalled that part of Mr. Winton's argument,

99:14 at least in his brief,

99:16 was an argument to the effect that,

99:19 the timing rules provided for when you have to sue

99:23 simply make it unreasonable to view B4 the way you do.

99:27 So can you explain the timing rules?

99:29 Appellee Attorney (Douglas Glenn Edelschick) The party must.

99:33 And in your view, if,

100:44 Judge Taranto so you laid out a scenario in which there are essentially two pleadings filed,

100:49 whether or not the second one is a separate action or an amended pleading.

100:53 In your view,

100:57 a challenger,

100:59 if,

101:00 if it did not file a timely CIT lawsuit

101:04 to challenge the suspension,

101:08 would have lost its right later,

101:11 say 90 days later or 120 days later,

101:14 if the final determination then in the continuation

101:18 comes out at that point,

101:20 there is no such right under B4 to,

101:23 to,

101:24 to challenge that.

101:27 Is that your view?

101:28 Unknown Well,

102:39 Judge Taranto I,

102:39 I,

102:39 you understand this far better than I.

102:41 So,

102:42 so suppose the the party,

102:46 the exporter enters into the suspension agreements,

102:51 you know,

102:52 and say the exporters together amount to a you know,

102:56 a C substantial share or significant share,

102:59 whatever the term is all substantially all.

103:03 And they say to themselves suspension agreement seems okay,

103:07 but it's really and,

103:09 and,

103:09 and they would like to get a final determination.

103:11 So they invoke the right to a continuation.

103:14 The proceeding is then underway and they think to themselves well,

103:19 whether we're unhappy with this suspension agreement will really depend on the result of that proceeding,

103:25 which is going to get factored into the reference prices and so on.

103:29 And so we're going to file our action to challenge the suspension agreement and hope it doesn't get adjudicated.

103:39 Before the final determination is,

103:45 is comes out.

103:47 And so all the action is going to be.

103:50 Appellee Attorney (Douglas Glenn Edelschick) It's just you're it would,

103:52 it would never,

103:52 it would never be,

103:54 but your,

104:04 Judge Taranto but your,

104:04 your view is Congress contemplated that something as exporters should be able to do.

104:12 So,

104:40 I guess,

104:41 I guess I want to ask,

104:42 ask the question,

104:43 if,

104:43 if Congress contemplated that,

104:45 where.

104:45 Okay,

104:46 The only substantive aspect of the challenge will be to the final determination and the continuation.

104:51 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?

105:03 Congress wanted them to be able to do that.

105:06 Appellee Attorney (Douglas Glenn Edelschick) 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.

105:36 Yes, indeed.

105:37 So that's referring to the changing the margin from the preliminary determination?

107:12 ...challenge to a final determination from a continued investigation.

107:15 It's all about the changes to what was final determination made by it.

107:27 Thank you, Mr. Edelstein.

108:16 Judge Dyk Ms. Alvey?

108:17 Clerk Your Honor, I want just to make a couple of quick points, but of course as well.

108:27 With respect to the 2016 AA2, there were some questions about what the purpose of the provision was.

108:40 And really there are two purposes.

108:41 One, as you recognize with respect to legislative history, it was to give the industry the opportunity to challenge.

109:10 So you had asked about time, basically all of this happened.

109:13 The 2019 agreement published on the Department of Commerce issued its final determination on October 25th.

109:26 The commission issued.

109:40 It did not.

109:41 And by a B agreement, I mean under 19 U.S.C.

109:45 This is a situation where the suspension agreement was one involving a fair value.

110:09 Judge Taranto Can I just, the timing, I guess I'm focused a little bit less on the timing at the moment.

110:15 I guess I want to put to you the question I tried to ask of the government.

110:21 So as I think you indicated, you agree that under 1673 C.G.,

110:27 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.

110:40 And B4 specifically sort of zeroes in on the idea that maybe that final determination will actually alter the rates that were baked into the suspension agreement itself,

110:52 which presumably came from the, mostly will have come from the preliminary determination.

110:57 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.

111:12 Why, if that is congressional contemplation, should it matter that those exporters have to file a placeholder action to the suspension agreement when what they're,

111:26 when,

111:27 Congress understands that the only thing they may actually care about is the result of the final determination?

111:36 Clerk Because only in certain circumstances did Congress actually want them to have an opportunist effect.

112:02 So the margins had nothing to do with the suspension agreement.

112:05 They had a different agreement, 73 C.G., less than fair value, and the change in margins, the underlying assumptions for the suspension agreement.

112:22 And so that's why it's, you would want to have that place marker.

112:27 Section 4.

112:30 Section 4, suspension agreement, in case, and that Commerce issued, changed that underlying assumption for that section 1673.

112:45 Judge Taranto But just to be clear, B4 doesn't distinguish among the types of 1673 C agreements that.

112:57 Clerk Application, the language talks about whether or not it's a final determination resulting from a continued investigation,

113:06 which changes the size of the dumping margin.

113:09 Or,

113:09 It's counter-available, so it's calculated, or the reasoning underlying to the calculations at the time the suspension agreement was concluded.

113:18 So the only logical way that this would matter would be in the context of an agreement under 1673.

113:28 Regardless though, as Mr. Edelstich pointed out, there was no ability to bring any appeal under this provision because the Mexican respondents failed to suspension agreement of the suspension agreement.

113:54 Judge Dyk Okay.

113:55 Thank you.

113:55 Thank you, Ms. Alvarez.

113:57 Mr. Winton.

114:01 Unknown Speaker Thank you.

114:02 It's Jeff Winton again.

114:03 I'll try to keep it brief.

114:06 Judge Dyk So just on this last point about the subsection 4 theory, it's quite odd.

114:14 It only gives jurisdiction to challenge the final determination if there's been a change in the margin or the reasoning.

114:26 So this just seems to be a little bit of a challenge.

114:28 It seems to be a very odd way to create a general challenge to the anti-dumping determination.

114:36 It seems to be limited to very specialized circumstances.

114:39 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.

114:49 Unknown Sure.

114:52 Unknown Speaker Well, take issue with something, my former colleague.

114:58 No, but try to answer my question first.

115:01 Sure.

115:01 Okay.

115:02 Well, this is my question.

115:03 This is by way of answering it.

115:05 There is here we have satisfied this requirement.

115:09 There is a change in the dumping margin and the reasoning.

115:12 And this is important in this agreement because although it's not an eliminate dumping agreement, it's an eliminate injurious effect agreement.

115:21 One of the requirements of that provision is that we have to eliminate 85% of the dumping margin.

115:27 And so we're in a situation where what eliminate 85% of the dumping margin meant

115:33 what we thought we were signing up to is something different based on what commerce's final determination says.

115:40 And so therefore, it's reasonable for us to be able to appeal this.

115:44 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.

115:54 It says it's 2A11 says it's we have to appeal within 30 days of any determination described.

116:02 And we did that we filed our appeal within 30 days of one of the determinations described in before.

116:10 So we are we are timely filed on the, by the way, there is to go back to something mentioned earlier, there's no excuse me, I'm sorry, I think we lost one of the attorneys.

116:25 Judge Prost Mr. Winton, should I just keep going or please keep going.

116:39 Unknown Speaker So let's go back under the injurious eliminate injurious effect type of agreement.

116:45 We have to agree to eliminate.

116:46 Okay.

116:46 We have to agree to eliminate 85% of our dumping margin.

116:49 So what the final dumping margin is, has an impact on the administration agreement.

116:53 It's something that commerce looks at as part of its compliance reviews in this case.

116:59 The second point I wanted to make was, if this is a B4 determination, as Mr. Edelschick concedes, the timing provision for that does not say you have to appeal within 30 days of the suspension agreement.

117:13 It says you have to appeal within 30 days of any determination described.

117:18 In paragraph B4, at which we did, because one of the determinations described in paragraph B4 is the continued determination, the continued investigation.

117:28 So there's no timing problem.

117:30 Judge Dyk That timing problem wouldn't exist anyway by virtue of 1516AA5, if we're talking about the NAFTA, right?

117:40 Right.

117:40 Unknown Speaker And that leads me to my next point.

117:43 Mr. Edelschick said, if we wait until an anti-dumping order is published, we can challenge anything that we want.

117:48 Under 2A.I.2.

117:52 And 2A.I.2 says that you can appeal within 30 days after publication in the Federal Register of an anti-dumping or countervailing duty order based on any determination described in clause 1 of paragraph B.

118:04 So in order for us to challenge things after the anti-dumping order, as Mr. Edelschick suggests, it has to be that this is a B1 case.

118:13 The determination falls under B1.

118:16 It may also fall under B4.

118:18 But it certainly falls under B1.

118:20 timing and the NAFTA.

118:24 There's nothing in the statute that says B4 jurisdiction under B1 is different.

118:33 And it's due to challenge a suspension agreement, which is the position of the government.

118:41 It cannot be, then, that B4 somehow precludes you from challenging the determination under B1, because they say it's something different.

118:49 There's a fundamental inconsistency.

118:53 Judge Taranto Mr. Winden, this is Judge Toronto.

118:55 Can I just ask?

118:55 Are there other overlaps?

118:56 Within the reviewable determinations list?

119:04 Unknown Speaker To be honest, I haven't thought about it, so I'd have to look.

119:08 Okay.

119:08 That's fine.

119:10 Judge Dyk Okay.

119:11 Thank you, Mr. Winden.

119:12 Unless there are further questions from my colleagues, I think that concludes the argument on issue three.

119:19 Now, we had left an opportunity for any party who hadn't been heard so far to present five minutes of argument.

119:29 Is there anybody that falls into that category?

119:33 I'm not hearing any.

119:40 I think that concludes our session for today.

119:43 Does any of my colleagues have any further questions?

119:46 Judge Prost No, thank you.

119:47 Judge Dyk No, thanks.

119:48 Okay.

119:49 All right.

119:49 Thank all counsel.

119:50 This has been complicated, and you've managed to do it very well, considering the limitations we have because we're doing this remotely.

120:00 So, thank all counsel.

120:02 The cases are submitted.

120:03 Thank you.

120:08 Clerk The report is adjourned until tomorrow morning at 10 a.m.