[00:00:03] Speaker 05:
We have three argued cases this morning.

[00:00:05] Speaker 05:
The first of these is number 14, 1188, GPX International Tire Corporation versus United States.

[00:00:12] Speaker 05:
Mr. Drilling.

[00:00:30] Speaker 01:
Good morning, Your Honors.

[00:00:31] Speaker 01:
My name is James Durling appearing today on behalf of the appellants.

[00:00:35] Speaker 01:
Your Honors, imagine you go home today and you get a notice from the IRS saying that you owe a 15% tax on your consumption.

[00:00:44] Speaker 01:
This is a wholly new tax.

[00:00:46] Speaker 01:
The IRS proposes to tax both your income when you earn it and then your income when you spend it.

[00:00:52] Speaker 01:
You think this is illegal.

[00:00:54] Speaker 01:
You think the IRS has no legal basis to do that.

[00:00:57] Speaker 01:
And you go to court and you prove in court that the IRS, in fact, had no legal basis to do this.

[00:01:03] Speaker 01:
Five years after the fact, five years after the IRS takes this money from you, Congress passes a law saying, oh, the IRS retroactively had the authority to do this.

[00:01:16] Speaker 01:
Your Honor, in our view, that would be an unconstitutional exercise of congressional power, and that's precisely what has happened in this case.

[00:01:25] Speaker 05:
We don't need to worry today about the ex post facto argument.

[00:01:29] Speaker 05:
We've resolved that adversely to you in Wireking, right?

[00:01:33] Speaker 01:
Your Honor, we will not focus on that issue today, but in our view, there is a remaining distinction that the court would need to take into account, an important factual distinction, which is unlike Wireking,

[00:01:44] Speaker 01:
the period of retroactivity in this case is much longer.

[00:01:49] Speaker 01:
This is the oldest of the cases that arose afterwards, and so there is a factual distinction.

[00:01:57] Speaker 01:
But other than that factual distinction, Your Honor, we agree the argument this morning can focus on the substantive due process issues.

[00:02:03] Speaker 02:
Well, but that factual distinction, the only impact of that factual distinction is as it relates to your due process challenge, correct?

[00:02:11] Speaker 01:
It relates to both, Your Honors, because it relates to ex post facto because it is one, it is relevant to factor number five under the Smith analysis.

[00:02:22] Speaker 01:
This court felt that Smith was the appropriate framework for evaluating this issue.

[00:02:27] Speaker 01:
In our view, the key factors in Smith are number four and number five, and under those factors, the degree, the extent of the retroactivity is a relevant factor to consider.

[00:02:37] Speaker 01:
So it's relevant for ex post facto, but it is also relevant for the due process arguments, your honor, because there are three fundamental reasons why this is an unconstitutional exercise of congressional power.

[00:02:50] Speaker 06:
Can you just clarify a date question for me?

[00:02:55] Speaker 06:
What is the date of the earliest import that the countervailing duty A applies to under the order

[00:03:04] Speaker 06:
First, that question, then there's a closely related question.

[00:03:08] Speaker 01:
Your Honor, I don't know the precise day, but the first time that imports were subjected to countervailing duties, countervailing duty deposits were collected, cash was collected, was December 2007.

[00:03:23] Speaker 01:
December 17th?

[00:03:24] Speaker 01:
Yes.

[00:03:25] Speaker 01:
I believe that's correct, Your Honor, but it's the end of December 2007.

[00:03:30] Speaker 01:
Most of the cash was collected in 2008.

[00:03:33] Speaker 06:
Is there an issue about countervailing duties applicable to imports before that, or is the deposit onset date the earliest?

[00:03:46] Speaker 01:
Your Honor, the way the countervailing duty law works is you can only collect duties for specific periods of time.

[00:03:52] Speaker 01:
That is the earliest period of time for which countervailing duties pursuant to this particular CBD order were collected.

[00:03:59] Speaker 01:
December 17, 2007.

[00:04:01] Speaker 01:
Yes, that was the beginning of the period of investigation.

[00:04:03] Speaker 01:
That's when GPX started to have to pay.

[00:04:08] Speaker 06:
The reason I ask you won't be surprised to learn is that it was October of 2007

[00:04:15] Speaker 06:
that in the related proceeding, the government adopted its new policy, reversing the policy from the eighties.

[00:04:28] Speaker 06:
Yes, Your Honor, but that goes to the question of- It announced it a whole year before that, but it actually adopted it, I think it was in October.

[00:04:34] Speaker 01:
But Your Honor, that goes to the question of what is in fact proper notice.

[00:04:38] Speaker 01:
And we think there are two important distinctions for the court to bear in mind.

[00:04:42] Speaker 01:
The first is, this was not notice of

[00:04:45] Speaker 01:
Congress getting ready to change the law, this is notice of a government agency acting illegally, the government agency acting beyond the scope of its authority.

[00:04:55] Speaker 01:
And in our view, the illegal action of an agency acting beyond its power then, the power it had at that point in time, the improper exercise of the authority by the agency is a very different kind of notice than entitled to less weight.

[00:05:10] Speaker 01:
The other key distinction, Your Honor, is that whatever notice we might have had,

[00:05:15] Speaker 01:
that at some point in the future, Congress might change the law.

[00:05:20] Speaker 01:
That would not include notice that Congress would change the law with such an extreme period of retroactivity.

[00:05:26] Speaker 01:
Retroactivity under US law is disfavored, and there was no way we could reasonably foresee that Congress would not just change the law prospectively, but that Congress would change the law and impose a period of retroactivity of more than five years.

[00:05:40] Speaker 06:
Does it matter at all to you whether the

[00:05:44] Speaker 06:
initial decision in this case, the one that Congress then displaced, was or was not a close question of statutory construction?

[00:05:56] Speaker 01:
Your Honor, in our view, it was not a close question because by that point in time, there was actually a very substantial legal basis for the finding of this court that commerce did not have the power at that time.

[00:06:13] Speaker 05:
It seems to me that in addition to the question being one in which there were substantial arguments on both sides, our decision was not the final decision.

[00:06:26] Speaker 05:
We've held that for purposes of considering retroactivity, it is retroactive.

[00:06:33] Speaker 05:
But the fact is that the government could also, instead of seeking legislation, have sought certiorari in the Supreme Court.

[00:06:43] Speaker 05:
So unlike, for example, Carlton, where there was a change in the statute, here they were acting to resolve an issue which remained up in the air to the extent that the Supreme Court might have reviewed it or I suppose we might have taken it in bank to review it.

[00:07:01] Speaker 05:
So that is a distinction of these cases that, you know, where you are assuming that

[00:07:08] Speaker 05:
this was finally resolved.

[00:07:09] Speaker 05:
It wasn't finally resolved that the government was wrong.

[00:07:14] Speaker 01:
Your Honor, with all due respect, we think the decision that the Commerce Department did not have the legal authority was finally resolved, sufficiently resolved for purposes of the argument we're making about the illegality.

[00:07:27] Speaker 05:
But you have to agree that the Supreme Court review was a distinct possibility, right?

[00:07:32] Speaker 01:
It was a distinct possibility, Your Honor, but when they did not pursue that opportunity,

[00:07:37] Speaker 01:
then it became final for purposes of our legal system.

[00:07:41] Speaker 01:
Yes, they could have appealed, and the Supreme Court possibly could have reached a different conclusion, but that did not happen.

[00:07:47] Speaker 01:
What did happen in your case, in this case, Your Honor, is we have the decision in GPX.

[00:07:54] Speaker 01:
This court was asked to reconsider that decision and to vacate it, and the court declined to do so.

[00:07:59] Speaker 01:
Instead, the court in the 2011 GPX decision

[00:08:04] Speaker 01:
affirmed and ratified the core legal reasoning of the 2011 GPX decision.

[00:08:11] Speaker 01:
So in our view, the combination of the reaffirmation of the core legal reasoning in 2012, the fact that the court expressly declined an opportunity to vacate the decision, the fact that there was no appeal to the Supreme Court, so there was no further guidance in our system

[00:08:29] Speaker 01:
this court has spoken and has rendered the final word about the meaning of the law.

[00:08:33] Speaker 02:
It means it's accepting the proposition that this court spoke, that this court's decision is the final decision as to what the law was.

[00:08:42] Speaker 02:
And we accept the proposition that Commerce mistakenly was operating under the assumption that it had broader authority than it did.

[00:08:50] Speaker 02:
Isn't it a rational basis for retroactivity for Congress to correct the law?

[00:08:58] Speaker 02:
once the court tells it that the agency didn't have the authority that Congress believed it had.

[00:09:04] Speaker 01:
It's not a rational basis, Your Honor, because the Supreme Court's jurisprudence on corrective, curative purpose for a rational basis draws a very clear distinction between correcting a mistake in the administration of the law and creating a wholly new liability.

[00:09:25] Speaker 05:
Let's suppose, for example, that this

[00:09:27] Speaker 05:
the period of retroactivity were a year, the way it was in Harlem.

[00:09:32] Speaker 05:
You're saying that even under those circumstances, that would be a violation of due process?

[00:09:37] Speaker 01:
Well, Your Honor, that would be a different case in the following sense, that under the Supreme Court's guidance, the longer the period of retroactivity, the weaker the legal basis for the action.

[00:09:50] Speaker 01:
It's not a simple, if you have a basis for being retroactive, you can go back one year, two years, five years, ten years,

[00:09:56] Speaker 01:
There has to be some outer limit.

[00:09:57] Speaker 05:
Well, I understand that, but I'm asking you to assume, hypothetically, that we were dealing with a case in which there was a one-year period of retroactivity.

[00:10:04] Speaker 05:
But wouldn't, under those circumstances, be much of an argument that the legislature was unconstitutional?

[00:10:09] Speaker 01:
We would agree that a short period of retroactivity, say less than a year, which is the most common period because of the way the legislative process works, that would be a different and a much weaker argument for unconstitutionality.

[00:10:23] Speaker 01:
But that's why this case is very different, because we're not talking about one year.

[00:10:27] Speaker 01:
Whatever point in time you believe the rights vested, whether it was in 2007 and 2008 when the government impermissibly took the money, or in 2009 when GPX had to waive its right to automatic liquidation under the statute to assert its legal right, or in 2011 when the administrative review process was complete.

[00:10:49] Speaker 01:
There are three possible points, all of which

[00:10:52] Speaker 01:
predate the moment we're here now, the rights have vested.

[00:10:56] Speaker 01:
In our view, they vested long ago when the cash was impermissibly taken from GPX.

[00:11:02] Speaker 01:
And GPX has simply been trying to exercise its rights under the US legal system to regain those funds that weren't properly taken.

[00:11:11] Speaker 02:
Let's go back to your point where you said that the court has always drawn a distinction between administrative

[00:11:21] Speaker 02:
essentially administrative interpretations of law and court interpretations of law.

[00:11:27] Speaker 02:
But isn't Rahman the precise case in which the court recognized that in fact it was a court's later determination that Congress may have found surprising, even if not erroneous, and that it was permissible for Congress to go back and correct

[00:11:49] Speaker 02:
the law to fill in the gap that the court found to exist.

[00:11:53] Speaker 01:
Your Honor, whether it's a legislative mistake or a judicial interpretation, the distinction in the Supreme Court's jurisprudence seems to be the distinction between a correction in the administration of the law and the creation of a wholly new liability.

[00:12:09] Speaker 01:
In all of the cases we've read, Your Honor, the one that we think is factually most on point here is Justice Holmes' decision in Forbes' Pioneer

[00:12:17] Speaker 01:
which was commented on by the Supreme Court in Graham, where the Supreme Court basically focused on the clear principle that you cannot retroactively create new liabilities.

[00:12:30] Speaker 01:
And in our view, that is still good law.

[00:12:33] Speaker 01:
Unless the court has any other immediate questions, I'd like to reserve the remaining three minutes for rebuttal.

[00:12:39] Speaker 01:
Okay.

[00:12:39] Speaker 01:
Thank you, Mr. Duren.

[00:12:42] Speaker 04:
Mr. Surtlow.

[00:13:04] Speaker 03:
Good morning.

[00:13:05] Speaker 03:
May I please support?

[00:13:07] Speaker 03:
This Court's decision in Wireking puts to rest the X plus factor challenge.

[00:13:10] Speaker 03:
Wireking is binding on this panel and we believe that it's controlling on the retroactivity question.

[00:13:21] Speaker 03:
The only issue that remains then is the due process question.

[00:13:24] Speaker 02:
Well, how do you respond to your front's argument on the other side is that even if Wireking does control on the retroactivity question,

[00:13:32] Speaker 02:
that as it relates to a post-facto, we were applying those factors, the Smith factors to the facts before us, and that the facts here are at least different.

[00:13:45] Speaker 03:
Your Honor, I have two responses to that.

[00:13:46] Speaker 03:
The first is, I don't think that Wierking is properly read that way.

[00:13:50] Speaker 03:
Wierking discusses those factors, certainly as applied to the facts before it.

[00:13:57] Speaker 03:
the language of marking goes broader than that and then discusses the reasonable basis for Section 1 of the Act and for the difference in effective dates between Section 1 and Section 2.

[00:14:12] Speaker 03:
I think more importantly, there actually is not nearly as much of a factual distinction as GPX suggests there is.

[00:14:21] Speaker 03:
At most, the difference in

[00:14:23] Speaker 03:
in terms of when duties were started to be collected was one or two years.

[00:14:30] Speaker 03:
When we're dealing with a period of retroactivity of six years, that year-long period is not dispositive and certainly not dispositive in light of the language from Wierking that Congress had a rational basis that this act was a curative measure and that

[00:14:54] Speaker 03:
it was rational for Congress to create different effective dates because, as the Court recognized, Section 2 was merely Congress acting to bring the United States into compliance with an adverse WTO panel decision, and it was reasonable, the Court found, for Congress to only do the minimum necessary to bring the United States into compliance.

[00:15:20] Speaker 05:
Well, and there's no suggestion in the case that different

[00:15:24] Speaker 05:
companies would have a different challenge to the statute.

[00:15:31] Speaker 05:
The statute, I thought we made pretty clear the statute rose or fell as a single thing and not, you can't parse it out into individual applications.

[00:15:43] Speaker 05:
Yes, Your Honor.

[00:15:44] Speaker 05:
So it seems to me that the primary argument they're making is that five and a half years is too long.

[00:15:53] Speaker 05:
And the only case that sustained retroactivity of that long a period was Heinzmann, which was seven years.

[00:16:03] Speaker 05:
So could you address that contention?

[00:16:06] Speaker 03:
Absolutely, Your Honor.

[00:16:07] Speaker 03:
I have a number of responses to that.

[00:16:09] Speaker 03:
One is that that whole argument assumes that there is actually a vested right.

[00:16:14] Speaker 03:
And for all the reasons that we've explained in our briefs and that I will be happy to elaborate, there is no vested right.

[00:16:22] Speaker 03:
two is that Romaine, which we cite and which this court pointed to, dealt with a period of retroactivity that was virtually the same as here, which was six years.

[00:16:34] Speaker 03:
And in that case, the Supreme Court did not find the period of retroactivity problematic, nor did it find a retroactive action, a retroactive legislative action undoing an unexpected, or at least from the

[00:16:51] Speaker 03:
standpoint of Congress unexpected judicial decision to be any sort of violation of the due process clause.

[00:16:58] Speaker 02:
Does the timing at all impact the due process analysis, sort of in the abstract?

[00:17:06] Speaker 03:
I think the cases certainly suggest that it might.

[00:17:10] Speaker 03:
For example, this court's decision in Edison dealt with a period that this court

[00:17:16] Speaker 03:
described as severely retroactive and the court did apply a slightly different analysis.

[00:17:21] Speaker 03:
However, in that case, the court did not characterize the statute as a tax.

[00:17:29] Speaker 03:
It is important to draw a distinction between statutes that, in Edison, the court characterized the statute as a form of

[00:17:40] Speaker 03:
It is important to distinguish those types of statutes from the regime of taxation and from the regime of countervailing duties and anti-dumping duties because this court has made clear that there is no vested right in a particular rate of duty.

[00:18:02] Speaker 03:
There is no vested right to engage in commerce with the United States to bring in product

[00:18:09] Speaker 03:
And so all the arguments that a right vested for GPX have to fall in light of those binding precedents, and in particular NEC.

[00:18:20] Speaker 02:
Do process challenge ever be made post-liquidation?

[00:18:25] Speaker 03:
Yes, Your Honor.

[00:18:27] Speaker 03:
A circumstance that I can think of, for example, is if there was liquidation, final court decision liquidation,

[00:18:35] Speaker 03:
And then Congress passes a law and Customs goes out and tries to collect duties for entries that have already been liquidated based on the new law.

[00:18:48] Speaker 03:
That would be closer to an instance where rights had vested because there actually was a final payment in that kind of sense.

[00:18:57] Speaker 03:
So even if there is not a right to a particular rate of duty, I think there could be an argument made that having actually paid the final assessment

[00:19:05] Speaker 03:
vested some sort of right.

[00:19:07] Speaker 02:
But if your argument is that there is no obligation to make the payment, then you really lose your ability to make a due process challenge under your theory.

[00:19:16] Speaker 02:
Because until you liquidate and make a payment, you can't raise it.

[00:19:20] Speaker 02:
And you can only raise it if you, in fact, make a payment and they want more.

[00:19:26] Speaker 03:
Yes, I think so, Your Honor.

[00:19:27] Speaker 03:
But I think that's a very important distinction.

[00:19:32] Speaker 03:
The fact that it's

[00:19:34] Speaker 03:
It is not automatic that every kind of legislation needs to create a right of action under the due process clause.

[00:19:42] Speaker 03:
And in fact, what we're dealing with under the countervailing duty statute or the tax statute, the Supreme Court has made very clear that there actually is no vested right there.

[00:19:54] Speaker 03:
And so there is not a due process claim.

[00:19:57] Speaker 06:
Can I ask you first this same factual question?

[00:20:01] Speaker 06:
Uh, I asked Mr. Early is December 7th, December 17th, 2007, the earliest date of an import affected by the countervailing duty at issue here.

[00:20:15] Speaker 03:
Yes, I believe so.

[00:20:16] Speaker 06:
Um, then a more broad doctrinal question.

[00:20:20] Speaker 06:
What modern Supreme court case or even an old Supreme court case, if you want to talk to me about that says that there is a threshold inquiry into something called

[00:20:30] Speaker 06:
invested right, as opposed to using that language as a broad characterization of the proposition that you are not immune from legislative changes broadly for stuff you've already done.

[00:20:50] Speaker 06:
I have not found, but you've probably looked harder than I have,

[00:20:54] Speaker 06:
for a case that says there's a threshold inquiry into this thing you're calling vested right.

[00:21:03] Speaker 03:
Your Honor, I don't believe that the Supreme Court has characterized the inquiry as necessarily a threshold one.

[00:21:12] Speaker 06:
Or even defined it as an inquiry.

[00:21:15] Speaker 06:
All of the quotes you use simply assert the general proposition that you don't have an immunity from imposition

[00:21:23] Speaker 06:
of the legislature for stuff you've already done.

[00:21:26] Speaker 06:
That's as far as the language goes.

[00:21:30] Speaker 06:
And I understand that there is an important aspect of the rationality analysis that looks at the severity of the upsetting of expectations.

[00:21:40] Speaker 06:
But I don't understand what role in the analysis is played by some definitional inquiry of vesting or not.

[00:21:50] Speaker 06:
which for constitutional purposes, which has nothing to do with what may or may not be the case under a particular statutory regime like the liquidation scheme.

[00:22:01] Speaker 03:
Your honor, I'm not aware of a Supreme Court case that sets up the analysis in that way.

[00:22:07] Speaker 03:
However, I am aware of this court's decision in NEC Corporation, which we cited in our brief.

[00:22:13] Speaker 03:
And in that case, the fact pattern in that case is different, but in that case,

[00:22:18] Speaker 03:
This court faced a due process challenge to... Substantive due process.

[00:22:26] Speaker 03:
Yes, Your Honor.

[00:22:26] Speaker 03:
It faced a general due process challenge to an anti-dumping duty investigation and the court first went and analyzed whether there's a right to substantive due process that plaintiff can rely on and the court rejected that proposition.

[00:22:44] Speaker 03:
saying, quote, engaging in foreign commerce is not a fundamental right protected by notions of substantive due process.

[00:22:51] Speaker 05:
That's sort of different from the vested rights inquiry.

[00:22:56] Speaker 05:
That's talking about the nature of the government interest and, you know, powers over foreign commerce.

[00:23:05] Speaker 05:
It's not talking about a completed transaction giving rise to a vested right, correct?

[00:23:12] Speaker 03:
Yes, that's correct, Your Honor, but we don't have a completed transaction here.

[00:23:16] Speaker 03:
And that's really where, what it comes down to is that.

[00:23:22] Speaker 05:
I don't think anyone's suggesting that's not a relevant consideration.

[00:23:25] Speaker 05:
I think it's just the sort of, it's not an on-off switch.

[00:23:30] Speaker 05:
It's a relevant consideration, but it's not determinative.

[00:23:35] Speaker 05:
What do you make out of the fact that in so many of these cases,

[00:23:40] Speaker 05:
that what we're dealing with is a statutory amendment that actually changed the law or changing a U.S.

[00:23:48] Speaker 05:
Supreme Court decision or a state Supreme Court decision with respect to a matter of state law.

[00:23:53] Speaker 05:
But here, we had an issue which was still being litigated and presumably could have gone to the U.S.

[00:24:00] Speaker 05:
Supreme Court or potentially rehearing in the bank here.

[00:24:05] Speaker 03:
Your Honor, I think that question goes to the

[00:24:10] Speaker 03:
I think that fact that the case was still live at the time the legislation was passed and that it had not, that the mandate in GPX-5 had not issued defeats GPX.

[00:24:22] Speaker 05:
That's a different question than I'm asking you.

[00:24:25] Speaker 05:
And that is, let's assume that the mandate had issued, that the case was over with here.

[00:24:30] Speaker 05:
We're an intermediate court.

[00:24:33] Speaker 05:
There's a possibility of going to the U.S.

[00:24:36] Speaker 05:
Supreme Court or rehearing in bank.

[00:24:40] Speaker 05:
give Congress greater power to step in and clarify the law than would exist if there had been a final Supreme Court decision about it.

[00:24:50] Speaker 05:
Does that make a difference?

[00:24:54] Speaker 03:
Your Honor, I'm not sure I understand the question.

[00:24:56] Speaker 03:
Is the question whether it matters at what level?

[00:25:02] Speaker 05:
Well, the government has a choice.

[00:25:03] Speaker 05:
It could go for Supreme Court review or it could go for legislation.

[00:25:07] Speaker 05:
That choice was faced here by the government.

[00:25:10] Speaker 05:
the government decided to go for legislation instead of further litigation.

[00:25:15] Speaker 05:
To what extent does that add to the government's interest in resolving a controversy which isn't completely final because it's subject to potential Supreme Court review?

[00:25:28] Speaker 03:
I think it's an additional rational basis for the legislation.

[00:25:32] Speaker 03:
I think if we, if the analysis gets to whether the legislation

[00:25:38] Speaker 03:
was arbitrary or rational, which is what GPX has to show in order to establish that the legislation violates the due process of the Constitution, then the court has to consider whether there is, in fact, a rational basis for the legislation or whether there is a potential rational basis for the legislation.

[00:25:57] Speaker 02:
Isn't that true regardless of whether they have a vested right?

[00:25:59] Speaker 02:
I mean, they still have to establish the rational basis, that there's no rational basis, correct?

[00:26:05] Speaker 03:
They still have to, yes, Your Honor.

[00:26:07] Speaker 02:
that your debate over vested rights or non-vested rights, while it is, as I said, perhaps a factor in the rationality, it's not determinative because the burden is to establish that Congress simply didn't have a rational basis for what they did.

[00:26:26] Speaker 03:
Your Honor, we believe that the vested right question is determinative based on NEC and based on the language of... Which doesn't use the term vested right, correct?

[00:26:37] Speaker 03:
It does not use that precise term, no, Your Honor.

[00:26:40] Speaker 03:
But even if the vested right question is not a threshold one and it's not dispositive, it does weigh on the analysis.

[00:26:50] Speaker 02:
Okay, so let's assume retroactivity, let's assume even a vested right.

[00:26:55] Speaker 02:
The government simply has to have, the Congress simply has to have a rational basis for the retroactivity.

[00:27:02] Speaker 02:
That's right, Your Honor.

[00:27:03] Speaker 02:
But why don't you focus on that issue?

[00:27:05] Speaker 03:
Yes, Your Honor.

[00:27:06] Speaker 03:
Congress has to have a legitimate legislative purpose.

[00:27:09] Speaker 03:
And that legitimate legislative purpose was already recognized in Wierking.

[00:27:13] Speaker 03:
Wierking held that the purpose of the act as a whole was a curative measure.

[00:27:22] Speaker 03:
It was meant to alleviate harm to the domestic industry caused by unfair trade practices.

[00:27:30] Speaker 03:
And the court

[00:27:31] Speaker 03:
held that remedying that harm fits within notions of how the countervailing duty law works generally.

[00:27:41] Speaker 03:
And implicitly recognize that as a legitimate legislative purpose.

[00:27:46] Speaker 03:
The court's analysis certainly did not touch upon the Fifth Amendment question, because that wasn't presented.

[00:27:54] Speaker 03:
But the language and the court's finding that it was reasonable for Congress to do what it did

[00:28:01] Speaker 03:
Laura delivers off that inquiry.

[00:28:04] Speaker 05:
Does it make a difference here that the dumping law is not concerned simply with revenue for the government, but protection of U.S.

[00:28:13] Speaker 05:
manufacturers and the equalization of competition so that perhaps there's a forward-looking effect with respect to the imposition of duties, forward-looking impact?

[00:28:32] Speaker 03:
I'm not sure that it does make a difference, Your Honor, and the reason is because regardless of whether the revenue comes, whether the purpose is to... But it's not solely a revenue raising measure, right?

[00:28:49] Speaker 03:
Absolutely not, Your Honor.

[00:28:51] Speaker 03:
And this Court's decision and why are things certainly focused on the curative effect

[00:28:55] Speaker 03:
the remedial effect of this legislation as part of the broader legislative scheme for anti-dumping and countervailing duties in remedying any harm, any potential harm to the domestic industry and the domestic manufacturers.

[00:29:13] Speaker 03:
That is certainly a legitimate legislative basis.

[00:29:20] Speaker 03:
I would say that if

[00:29:21] Speaker 03:
we were dealing with a revenue raising statute, Supreme Court cases would likewise support the notion that an imposition of a tax is a legitimate legislative basis.

[00:29:53] Speaker 00:
Good morning.

[00:29:53] Speaker 00:
May it please the court, Elizabeth Drake from Stewart and Stewart for Petitioners, Titan Tire, and the United Steelworkers Corporation.

[00:30:00] Speaker 00:
As Your Honor Judge Dyck mentioned at the beginning of this argument in Wire King, the majority of this court found that the 2012 Act was retroactive and affected a retroactive change in the law based on its conclusion that the GPX-1 decision was, quote, the statement of the law at the time the act was enacted.

[00:30:19] Speaker 00:
We respectfully request that this court

[00:30:21] Speaker 00:
revisit that aspect of the wire king determination in this case either as a non-precedential statement of dicta or if finding a presidential in Hearing en banc before this court and there are three reasons that justify revisiting this determination The first reason was described by your honor judge O'Malley and the concurrence in wire king and that's that the majority's conclusion conflicts with the conclusion in GPX

[00:30:50] Speaker 00:
2002, excuse me, GPX case where this court held that prior to the enactment of the Act.

[00:30:58] Speaker 06:
Can I ask you, whatever your arguments are on the merits of the retroactivity determination, if we're bound here by wire king, why would we revisit that question?

[00:31:15] Speaker 00:
states that the hearing on Bach on a presidential issue may be merited if there's an inconsistency with a prior court precedent.

[00:31:24] Speaker 00:
Here we believe there's an inconsistency with the second GPX decision, as pointed out in Judge O'Malley's concurrence.

[00:31:32] Speaker 00:
We also believe there's an inconsistency with other circuit courts of appeals.

[00:31:36] Speaker 00:
We cite a number of circuit decisions, I believe, from seven different circuits that find that

[00:31:42] Speaker 00:
a later amendment can be clarifying in nature and thus not have an impermissible retroactive effect.

[00:31:47] Speaker 02:
Isn't that an issue you would have to raise in an en banc petition?

[00:31:50] Speaker 02:
I mean, this panel is bound, as you correctly point out, mine was a concurrence.

[00:31:53] Speaker 02:
There was a majority opinion that reached the conclusion.

[00:31:56] Speaker 02:
We're bound by that.

[00:31:57] Speaker 00:
Rule 35A of the court, Your Honor, states that if the court is going to overrule precedent, it can be made in a brief to the panel, and the panel will consider whether or not to request that the full court consider the request for hearing.

[00:32:11] Speaker 00:
en banc.

[00:32:11] Speaker 00:
There was no basis for the appellees in Wireking to request a re-hearing en banc because they prevailed on the merits that there was no violation found.

[00:32:21] Speaker 00:
So, procedurally, we believe this is the correct way to proceed to address this narrow aspect of Wireking.

[00:32:28] Speaker 05:
Are you suggesting that if it is retroactive that you have a process problem?

[00:32:33] Speaker 00:
No, Your Honor.

[00:32:34] Speaker 00:
We do not believe that there is either an ex post facto violation as Wireking found

[00:32:39] Speaker 00:
or a due process violation, but we are raising this issue first because it can be... Do you have some other reason for, other than this litigation, for caring about that?

[00:32:49] Speaker 00:
We care for the following reasons.

[00:32:51] Speaker 00:
First, this is a grounds that we can raise on behalf of our client to dispose of all the other issues and to prevail.

[00:32:58] Speaker 00:
We believe the due process arguments that we have are correct.

[00:33:01] Speaker 05:
But something outside of this case?

[00:33:03] Speaker 00:
Outside of this case we believe that consistency among the court's decisions and with other circuits is helpful in terms of predictability and consistency and for future litigants perhaps there would be a law that wouldn't pass.

[00:33:16] Speaker 05:
Does this have something to do with the WTO?

[00:33:18] Speaker 00:
There was a WTO decision that looked at whether or not the law constituted a change or a clarification and looked at U.S.

[00:33:26] Speaker 00:
law to try to answer that question.

[00:33:28] Speaker 00:
At that point, wire king wasn't properly before the appellate body and it couldn't reach that conclusion.

[00:33:34] Speaker 00:
But I don't think the WTO process should play any role in this court's decision.

[00:33:39] Speaker 00:
I think that this court should simply be concerned about consistency among its own decisions and consistency with other circuits.

[00:33:48] Speaker 05:
Okay.

[00:33:48] Speaker 05:
Thank you, Ms.

[00:33:49] Speaker 00:
Drake.

[00:33:50] Speaker 05:
Thank you.

[00:33:58] Speaker 01:
Thank you.

[00:34:00] Speaker 01:
First, on the issue of whether there's any need to reconsider wire king, we would just like to make two points.

[00:34:06] Speaker 01:
First, in our view, wire king was not internally inconsistent because the prior law did not require any adjustment for double counting.

[00:34:15] Speaker 01:
It didn't require such an adjustment because it didn't allow any actions at all.

[00:34:19] Speaker 01:
There's no reason for the prior law to have addressed the issue of double counting because the law didn't apply at all.

[00:34:25] Speaker 01:
If you actually read the seven circuit court decisions cited in their brief, you will find that none of them address congressional efforts to tell a court how to interpret the law by overturning appellate court decisions.

[00:34:38] Speaker 01:
There really is not an inconsistency with the law of the other circuits.

[00:34:42] Speaker 01:
And more fundamentally, Your Honor, this is the court that deals with the question of how to think about these issues in the context of the trade remedy laws, which are a unique statutory creature

[00:34:55] Speaker 01:
And with all due respect, this court's precedents are a much better framework for thinking about this issue than unrelated language and circuit court decisions that have never confronted this particular statutory framework.

[00:35:07] Speaker 05:
Does the imposition of anti-dumping duties have a forward-looking effect?

[00:35:13] Speaker 01:
Absolutely, Your Honor, and that's the other point that I wanted to close on.

[00:35:16] Speaker 01:
When thinking about the rational purpose here,

[00:35:19] Speaker 01:
We think it's very important to not focus on the rational purpose for the laws in general, but is there a rational purpose for the retroactivity?

[00:35:29] Speaker 01:
The panel posed that specific question.

[00:35:30] Speaker 05:
What is the forward-looking effect of the imposition of anti-dumping?

[00:35:34] Speaker 01:
Well, the forward-looking effect, Your Honor, that's to protect the domestic industry.

[00:35:38] Speaker 01:
The core rationale of these laws is to protect the domestic industry.

[00:35:42] Speaker 01:
And that's why prospectively, there's no question.

[00:35:45] Speaker 01:
If Congress thinks that looking forward

[00:35:48] Speaker 01:
the special anti-dumping regime for non-market economies isn't enough and there needs to be more protection, that's fine.

[00:35:54] Speaker 01:
Congress has clear legal authority to make that judgment and to impose additional protection.

[00:36:01] Speaker 01:
But retroactively, it makes no sense.

[00:36:04] Speaker 01:
Why?

[00:36:05] Speaker 01:
First, all of the competitive struggles, all of the protection has already been done.

[00:36:09] Speaker 01:
This is in the past.

[00:36:11] Speaker 01:
Retroactively,

[00:36:13] Speaker 01:
there's no benefit to the domestic industry retroactively.

[00:36:16] Speaker 01:
The effect is simply to target a narrow class of taxpayers.

[00:36:22] Speaker 01:
Um, and in fact, it's not 24 CBD orders.

[00:36:25] Speaker 06:
Can I just ask you, I mean, why isn't there in a general sense and perhaps the sense or a sense relevant to say us or against Turner Elkhorn to say, um,

[00:36:39] Speaker 06:
Somebody was harmed at somebody caused by somebody else.

[00:36:45] Speaker 06:
They, we now will hold the harmer responsible in a way that they weren't at the time.

[00:36:55] Speaker 06:
That has a kind of a traditional basis.

[00:37:00] Speaker 06:
in our legal system and perhaps even has a forward-looking effect on helping to make the harmed person whole.

[00:37:07] Speaker 06:
Like, Ushery was a black lung case, is that right?

[00:37:10] Speaker 01:
Right.

[00:37:10] Speaker 01:
Your Honor, but the key difference between Ushery and cases in that line is this isn't a question of taking a situation where there is a harm that did not have a remedy and creating a remedy that may be looking backwards.

[00:37:24] Speaker 01:
This is a case where if there was a harm in the past, it was addressed with the anti-dumping measures.

[00:37:29] Speaker 01:
all of the parties involved in these litigations were subjected to parallel anti-dumping cases and the harm was fully remedied as the law contemplated that remedy at the time the harm took place.

[00:37:42] Speaker 01:
So Congress had basically said here is the remedy and it was imposed in every single one of these cases.

[00:37:49] Speaker 05:
Well I guess the government wouldn't necessarily agree with you on that.

[00:37:53] Speaker 01:
Well certainly there was a

[00:37:56] Speaker 01:
harm imposed through the anti-dumping.

[00:37:58] Speaker 01:
I don't think they can disagree with that because the anti-dumping measures were imposed.

[00:38:01] Speaker 06:
Question is whether that covers the full range of harm.

[00:38:06] Speaker 01:
In the law as it existed at the time, absolutely, Your Honor, and that's why we think the Supreme Court's precedence about creating a wholly new cause of action after the fact, creating a liability, a new liability if

[00:38:22] Speaker 01:
The court is concerned with making sure that the harm was addressed.

[00:38:25] Speaker 01:
It was addressed.

[00:38:27] Speaker 01:
And Congress simply doesn't have the power to retroactively go back and create new liability to address a harm that has already been addressed.

[00:38:37] Speaker 01:
This isn't an area, like us three and many other cases, where there was a problem that did not have a solution in place.

[00:38:44] Speaker 01:
And so Congress was retroactively trying to solve a past problem that didn't have a solution.

[00:38:50] Speaker 01:
In this case, there was a solution.

[00:38:52] Speaker 01:
It was in place.

[00:38:53] Speaker 01:
There was a legal framework for addressing this, and Congress then went beyond that.