[00:00:30] Speaker 02:
Next case is Pat Huval at ALB and I see council rolling in.

[00:00:55] Speaker 02:
versus the ITC 2012-1250.

[00:00:58] Speaker 02:
Do we have a call to council?

[00:01:04] Speaker 02:
Call to council, Mr. Shelley.

[00:01:28] Speaker 02:
We're ready when you are, Mr. Shelley.

[00:02:02] Speaker 05:
My name is Herbert Shelley.

[00:02:05] Speaker 05:
I'm here today representing SKFUSA, Inc.

[00:02:09] Speaker 05:
and JTAC, the felons in this case.

[00:02:14] Speaker 05:
This case is I think probably the last in a series of cases that have gone on for several years now concerning the constitutionality of the Burt Amendment and its application, whether it should be applied to domestic producers

[00:02:30] Speaker 05:
have been recognized as domestic producers in the course of the administrative dumping proceedings, but which did not qualify to receive distributions of funds under the Byrd Amendment because they did not.

[00:02:44] Speaker 02:
You've already decided equal protection and First Amendment, right?

[00:02:49] Speaker 02:
That's correct, Your Honor.

[00:02:50] Speaker 02:
Why is due process different?

[00:02:52] Speaker 05:
We're on due process now, Your Honor, and I don't think we have any further to go after this one, but we think the due process argument is one that is

[00:03:01] Speaker 05:
one that the court should consider carefully, because of the actual situation of the way these statutes have applied to companies like SKF USA, in which they are the largest, at that point in time, I assume still, the largest United States producer of all bearings, and yet did not qualify because of a

[00:03:27] Speaker 05:
box that they checked on an ITC questionnaire 20 years before the Bird Amendment was even enacted into law.

[00:03:35] Speaker 05:
At that time, that action triggered a situation some 20 years later in which they and other similarly situated companies were excluded from participating in the distribution of duties.

[00:03:53] Speaker 05:
as other domestic producers who did check the box properly 20 years earlier did do so.

[00:04:03] Speaker 05:
We think that the situation, that is denial of their due process rights, this is not a continuation or re-argument of the free speech situation.

[00:04:13] Speaker 05:
It's a situation in which there should be no rational basis for that

[00:04:19] Speaker 05:
situation taking place the way the Bird Amendment was written.

[00:04:24] Speaker 05:
It should not have resulted in any, because of the way this court determined the SKFUSA initial cases and what the purpose of the Bird Amendment was, which is to encourage and in fact incentivize petitioners or in this law or other laws to take actions and reward them for the actions they've taken.

[00:04:49] Speaker 05:
That to us is a prospective situation which started when the Byrd Amendment was enacted.

[00:04:58] Speaker 05:
What happened in triggering people who are rewarded for taking such actions under the anti-dumping law 20 years prior to that, not knowing that their actions would preclude them from any consideration, is a violation of their due process, Roy.

[00:05:15] Speaker 03:
Let me see if I understand.

[00:05:16] Speaker 03:
Your pegging, I gather,

[00:05:19] Speaker 03:
your retroactivity argument, the impermissible retroactivity argument, on the fact that you are competitors with the people that received the payout.

[00:05:31] Speaker 03:
Is that correct?

[00:05:32] Speaker 03:
In other words, if you weren't competitors, you really wouldn't have standing to raise the retroactivity point, right?

[00:05:38] Speaker 05:
We are, and we are competitors in the industry that has been valid.

[00:05:43] Speaker 03:
That's what competitors mean.

[00:05:45] Speaker 05:
Because the harm is going to us as a competitor from not participating in the distribution.

[00:05:51] Speaker 03:
But if you weren't competitors, you really wouldn't be able to raise the retroactivity.

[00:05:55] Speaker 05:
We wouldn't be able to, and we wouldn't have standing to, like if we had not participated in the anti-dumping review.

[00:06:01] Speaker 03:
That's fine.

[00:06:02] Speaker 03:
I mean, unlike, for example, conceivably an equal protection argument in which you wouldn't have to be competitors.

[00:06:09] Speaker 03:
My next question is, in your reply brief, you rely on Zobel against Williams.

[00:06:16] Speaker 03:
And you rely on it for a broad proposition, as you characterize it.

[00:06:21] Speaker 03:
And I want to test how broad that proposition is in your view.

[00:06:24] Speaker 03:
I think you say that the court and Zobel have that rewarding citizens for past actions is not a legitimate state purpose.

[00:06:36] Speaker 03:
assert that that's always the case, that rewarding citizens for past actions is not a legitimate state purpose?

[00:06:44] Speaker 03:
That's what you said, and I just want to see if you really stand by that.

[00:06:48] Speaker 03:
Well, we stand by it in that situation because of the... In that situation being the situation in Zobel?

[00:06:54] Speaker 03:
Zobel, yeah, which we analogize to it.

[00:06:57] Speaker 03:
Let me give you an example.

[00:06:58] Speaker 03:
You wouldn't say that if Congress decided that the veterans who had fought in the Iraq War

[00:07:04] Speaker 03:
should get some kind of benefits, that that would be an impermissible state purpose to award them benefits, even though it would be expressly for past action.

[00:07:16] Speaker 05:
I think it would depend on what the context of what the statute was.

[00:07:23] Speaker 03:
How about the GI Bill of Rights?

[00:07:26] Speaker 03:
They'll give you a specific statute.

[00:07:28] Speaker 03:
After World War II, Congress decided people who had fought in the war

[00:07:34] Speaker 03:
Thank you very much.

[00:07:36] Speaker 03:
Your reward is you are going to get educational benefits.

[00:07:40] Speaker 03:
No constitutional problem, you would think.

[00:07:42] Speaker 03:
No constitutional problem.

[00:07:43] Speaker 03:
OK, how about this situation?

[00:07:44] Speaker 03:
How about if a veteran, Congress says, veterans will get competitive advantage in federal employment so that they get 10 points extra on their civil service exams over you and me.

[00:08:01] Speaker 03:
And you and I are competing with those veterans for a job.

[00:08:05] Speaker 03:
But the veteran's getting an extra 10 points and the veteran gets the job.

[00:08:08] Speaker 03:
Do we have a retroactivity argument of the sort that you're making here?

[00:08:12] Speaker 05:
I think it depends on what the purpose of the statute is.

[00:08:15] Speaker 03:
The purpose is to reward those veterans, to reward those veterans for having served in Iraq.

[00:08:20] Speaker 05:
Is that okay?

[00:08:21] Speaker 05:
I don't think there's any problem with rewarding them from serving in Iraq.

[00:08:24] Speaker 05:
Right.

[00:08:24] Speaker 05:
The problem would be, and what we're saying here, and I believe what Zovell says, is that the purpose of the law was to do something subsequent

[00:08:34] Speaker 05:
And we are doing something subsequent.

[00:08:35] Speaker 03:
We're giving them benefits in employment for something that they did long ago and that you and I are denied the equal benefit.

[00:08:46] Speaker 03:
And we could say, as your clients say here, we didn't know that you were going to end up making it more difficult for us to get federal employment simply because we didn't join the Iraq war.

[00:09:01] Speaker 03:
I'm having a hard time seeing why it's a different case.

[00:09:04] Speaker 05:
I think it's slightly different.

[00:09:06] Speaker 05:
Here you have a statute that applies across the board to all anti-dumping investigations or cases, regardless of the particular product involved.

[00:09:19] Speaker 05:
In your situation, I think you're talking about a specific subset of a group of people who were participating as veterans in a war.

[00:09:29] Speaker 05:
But it's not necessarily applicable to all situations in which there might be.

[00:09:39] Speaker 05:
If their participation allowed discrimination against other people later in a broader context, I think that's what we're trying to get at.

[00:09:51] Speaker 05:
What I'm trying to say is any dumping law applies to everyone, to all businesses who export or import into the United States.

[00:09:59] Speaker 05:
And when you are providing an incentive to a recognized part of the industry, the domestic industry, which has to have been part of what in fact was considered in the ITC injury investigation and whether you would then impose anti-dumping duties, when you take a subset of that imperative group of companies

[00:10:28] Speaker 05:
to make the initial decision and then you take out a segment of it based on what that segment did earlier and benefit that segment so drastically as is done in the burying industry that that is a retroactive application of the law that should not place it.

[00:10:47] Speaker 05:
And I don't know how to do it, but I don't think your situation is the same as this situation because here we're starting with the big all parties involved in the industry

[00:10:59] Speaker 05:
to which a decision has to be made to grant them, not grant them relief.

[00:11:03] Speaker 05:
And then when you decide to grant that group relief, you then take out a segment from it because of what that segment did and benefit them greater than the bigger group.

[00:11:18] Speaker 06:
If we don't agree with your continuing claim theory, are your claims time barred?

[00:11:24] Speaker 05:
No, we don't believe that.

[00:11:26] Speaker 05:
Continuing claims theory is one of the

[00:11:29] Speaker 05:
mechanisms in which we believe because every year the affected domestic parties have to submit certifications in order to qualify for distribution of dummy duties.

[00:11:42] Speaker 05:
It's a regulatory process.

[00:11:44] Speaker 05:
Customs publishes the notice, gives the party 60 days to file their certification and go forward.

[00:11:51] Speaker 05:
In this situation, the government is relying on

[00:11:55] Speaker 05:
in the SKFUSA case about when the two-year statute of period actually begins to run.

[00:12:02] Speaker 05:
In addition to the continuing claims theory, we believe that that was not a decision of this court and when it comes, you focus on the publication of the Federal Register notice giving parties the 60 days in which to file their certifications.

[00:12:19] Speaker 05:
At the time of that publication, there was no guarantee or even any knowledge whether

[00:12:24] Speaker 05:
parties would be subject to or be able to receive distributions in that fiscal year period.

[00:12:34] Speaker 05:
That only is known after the certifications come in and the actual distributions of funds are actually made.

[00:12:43] Speaker 03:
Let me see if I... Oh, go ahead.

[00:12:47] Speaker 05:
Under that scenario, we have problems in the two-year period.

[00:12:50] Speaker 03:
Let me see if I understand the mechanics of that system by which

[00:12:54] Speaker 03:
the determination is made as to who's eligible.

[00:12:58] Speaker 03:
First, there is, I guess, by regulation, a list that's sent out, findings that give everybody 60 days, or at least an announcement that gives everybody 60 days to say, I ought to be on the list of people getting a distribution, correct?

[00:13:19] Speaker 05:
There's a list, and there's also the regulation list, the criteria which they must respond to, to substantiate their eligibility.

[00:13:27] Speaker 03:
OK, so at that point, everybody has a chance to respond and say, I belong on the list.

[00:13:33] Speaker 03:
Correct.

[00:13:33] Speaker 03:
OK.

[00:13:34] Speaker 03:
And then later, at least 30 days before the distribution, I gather, there's a final list which says, these are the people that are going to get paid.

[00:13:44] Speaker 05:
Well, I don't know if this is actually a published final list, like SKF each year.

[00:13:48] Speaker 05:
applied when the notice was published to be certified.

[00:13:56] Speaker 05:
We do qualify, these are the expenditures we have, all the necessary elements in the regulation.

[00:14:02] Speaker 05:
And then we receive a rejection letter from the custom service saying we're not on the list.

[00:14:08] Speaker 03:
My question is when do you receive that rejection letter in the course of all this?

[00:14:11] Speaker 05:
Sometime within the 60-day period prior to the distribution.

[00:14:14] Speaker 03:
prior to the distribution.

[00:14:17] Speaker 05:
Or right at the end of it.

[00:14:18] Speaker 05:
It's usually closer to the end of it.

[00:14:21] Speaker 03:
There's no set time.

[00:14:23] Speaker 03:
And your complaint, and let's just take the easy one, which is the one that isn't more confusing because there were two complaints, but the one complaint case, the SKF case, your complaint was filed within two years of the rejection letter?

[00:14:39] Speaker 05:
No, within two years of the date that

[00:14:42] Speaker 05:
payments actually go out to the parties who were determined.

[00:14:46] Speaker 03:
But not within two years of the rejection letter?

[00:14:48] Speaker 05:
No, no.

[00:14:49] Speaker 03:
Okay, so you had a final notice from the agency that you weren't going to get paid as of the time the rejection letter was sent.

[00:14:56] Speaker 03:
And what's the date of that rejection letter?

[00:14:59] Speaker 05:
Well, it has to be, I don't know the exact, it has to be by the end of the 60 day period.

[00:15:03] Speaker 05:
Well, no, it's usually, the 60 day period typically ends like

[00:15:10] Speaker 05:
the end of September I believe and then distributions have to be made by the end of October or maybe it's a month later.

[00:15:17] Speaker 05:
I don't remember exactly but it's towards the end of that period because it's done on a fiscal year basis which is October 1st and so each year this period is the government's fiscal year.

[00:15:29] Speaker 03:
But you did not file within two years of the rejection letter itself.

[00:15:33] Speaker 05:
We did not but we would argue that that's not the criteria because the criteria is when everyone

[00:15:40] Speaker 05:
We were not hurt by our being rejected at that time when we received the rejection.

[00:15:46] Speaker 05:
We were hurt when our competitors received their additional funds.

[00:15:50] Speaker 05:
And that does not happen until the end of the fiscal year period.

[00:15:56] Speaker 05:
So the harm to us does not come from our not being accepted.

[00:16:00] Speaker 05:
The harm to us comes from our competitors receiving the funds.

[00:16:03] Speaker 02:
Mr. Shelley, you're into your rebuttal time, but I'll give you your full requested three minutes back.

[00:16:11] Speaker 02:
Mr. Tomlinson, and you're going to take eight minutes.

[00:16:15] Speaker 07:
Thank you, Your Honor.

[00:16:16] Speaker 07:
Martin Tomlinson from the United States.

[00:16:18] Speaker 07:
I'd like to, if I could, just pick up quickly on that point on the timeliness issue.

[00:16:26] Speaker 07:
Mr. Shelley characterized our reliance on the SKF case as reliance upon DICTA in the SKF case.

[00:16:31] Speaker 07:
We strongly dispute that.

[00:16:34] Speaker 07:
The actual language of the SKF case on the timeliness issue was, quote, we hold that the filing of SKF's complaint was timely in any event because the cause of action did not accrue until June 1, 2005.

[00:16:48] Speaker 07:
And June 1, 2005,

[00:16:51] Speaker 07:
was the date upon which CBP published its list of who these ADPs are that would receive distribution.

[00:16:57] Speaker 03:
Well, clarify for me the difference between the publication of the list and the opportunity that those who were not on the list have to request inclusion in the final distribution and the notification, if I understood what Mr. Shelley was saying, a notification to those people who make such application that indeed they are not going to be included.

[00:17:20] Speaker 03:
Is that, in fact, the way you understand this, the way the scheme works?

[00:17:24] Speaker 07:
Your Honor, I'll give you my understanding.

[00:17:25] Speaker 07:
If Mr. Gallagher from ITC will be up here momentarily, he can correct me if I'm wrong.

[00:17:29] Speaker 07:
My understanding is... It's pretty important, potentially.

[00:17:32] Speaker 07:
It is, Your Honor.

[00:17:33] Speaker 07:
ITC prepares the list.

[00:17:36] Speaker 07:
A producer submits something to ITC asking to be put on the list.

[00:17:42] Speaker 07:
ITC prepares the list, lets you know if you're not on the list, and then you have an opportunity to follow up with them.

[00:17:48] Speaker 07:
At that point, if ITC decides you're still not on the list, they forward that list to CBP.

[00:17:55] Speaker 07:
All potential ADPs, and even some people who are not on the ITC list, file certifications with CBP to be on the final published list of who will receive distribution.

[00:18:06] Speaker 07:
And then CBP publishes that list.

[00:18:08] Speaker 03:
And somebody gets a letter, like SKF would get a letter saying, thank you for your application.

[00:18:13] Speaker 03:
It is denied.

[00:18:15] Speaker 07:
Not from CBP.

[00:18:16] Speaker 07:
I'll let Mr. Gallagher speak.

[00:18:19] Speaker 07:
I believe there's a letter from ITC, but CBP does not specifically notify you that you are not on the list, but you certify that you're supposed to be on the list, then the list is published.

[00:18:29] Speaker 07:
And if your name is not on that list, which again is published and available to you, you know that you are not on the final list of ADPs who will receive distribution.

[00:18:40] Speaker 03:
And when do you think the statute of limitations, when do you think the cause of action accrues at the point at which the first list comes out?

[00:18:46] Speaker 03:
The point at which the CVP list comes out.

[00:18:49] Speaker 03:
And the point at which the last list comes out.

[00:18:51] Speaker 03:
That's correct.

[00:18:51] Speaker 03:
The final one after you have gotten your letter saying, sorry, you're not on our list.

[00:18:57] Speaker 03:
That's correct.

[00:18:57] Speaker 07:
And that was the holding of this court in SKF.

[00:19:00] Speaker 07:
And here, that happened on June 2, 2004.

[00:19:05] Speaker 07:
Neither of the two complaints at issue for fiscal year 2004 were filed until September 2006, which is outside the two-year statute.

[00:19:14] Speaker 06:
Your honor, if I could just keep going on this, do you think this two-year statute of limitations is jurisdictional?

[00:19:21] Speaker 07:
Yes, your honor.

[00:19:23] Speaker 07:
That's our understanding of it.

[00:19:26] Speaker 03:
Now this affects only either one or two of the multiple claims that are before us, correct?

[00:19:30] Speaker 03:
That's correct.

[00:19:31] Speaker 07:
So it would not dispose of any event.

[00:19:34] Speaker 06:
But on the face of it, it doesn't... I mean, when we look at some of the recent Supreme Court cases like Henderson, you know, which seem to be

[00:19:44] Speaker 06:
It's really telling all of us that if these sorts of statute of limitations to be jurisdictional, there has to be a very clear, strong intent from Congress to make it so.

[00:19:56] Speaker 06:
And this one, I mean, it's part of the chapter entitled procedure, not the one governing jurisdiction.

[00:20:06] Speaker 06:
Is that right?

[00:20:08] Speaker 07:
I believe that is correct, Your Honor.

[00:20:10] Speaker 06:
So isn't that a trait that seems to lean against

[00:20:14] Speaker 06:
deeming this one jurisdictional?

[00:20:17] Speaker 07:
Potentially, Your Honor.

[00:20:19] Speaker 07:
But I do think it's important to note that plaintiffs have not raised any tolling or any equitable tolling or any arguments along those lines.

[00:20:28] Speaker 03:
But the question for us is whether we can even reach the merits of this issue if it is jurisdictional.

[00:20:34] Speaker 03:
We presumably can't, with respect at least to the particular claims that are at issue.

[00:20:40] Speaker 03:
That's correct, Your Honor.

[00:20:43] Speaker 03:
I mean, therefore, whether it's jurisdictional or not in nature really does matter.

[00:20:51] Speaker 03:
That's correct.

[00:20:52] Speaker 03:
Put it another way, assuming we were prepared to affirm on the merits, with respect at least to the issues that are covered by the statute of limitations questions, we couldn't say we don't need to address those because we can go directly to the merits.

[00:21:09] Speaker 07:
If it's not jurisdictional, that's correct.

[00:21:10] Speaker 03:
if it is jurisdiction, we couldn't, right, we could not simply pass to the merits.

[00:21:16] Speaker 07:
That's correct.

[00:21:16] Speaker 07:
Right.

[00:21:17] Speaker 07:
And that's your position.

[00:21:18] Speaker 07:
That's the government's position, yes, Your Honor.

[00:21:22] Speaker 07:
I'd like to briefly address, I see him running close on my time, but I'd like to briefly discuss the Zobel versus Williams case that Mr. Shelley discussed.

[00:21:31] Speaker 07:
I think it's very important to note that the

[00:21:35] Speaker 07:
read a lot into that case in terms of its relevance to this case.

[00:21:38] Speaker 07:
I think it's distinguishable on many different grounds.

[00:21:40] Speaker 07:
First of all, as Your Honor noted, it wasn't an equal protection case, not a due process case.

[00:21:46] Speaker 07:
But furthermore, I think it's very important to note that that case wasn't strictly a retroactivity case.

[00:21:54] Speaker 07:
The Supreme Court noted at page 59 of that opinion that

[00:21:59] Speaker 07:
The distinction they complain of is not one which the state makes between those who arrived in Alaska after the enactment of the dividend distribution law and those who were residents prior to its enactment.

[00:22:09] Speaker 07:
The distinction that was being challenged there was essentially, in a way, levels of retroactivity.

[00:22:15] Speaker 03:
How long you'd lived there.

[00:22:17] Speaker 03:
How long you'd lived there.

[00:22:18] Speaker 07:
Exactly.

[00:22:19] Speaker 07:
How long you had been a citizen post statehood.

[00:22:22] Speaker 03:
But the real question, and the point that Mr. Shelley is making by raising that case, I think, is,

[00:22:29] Speaker 03:
The language that the court used was directed to what constitutes a rational basis for legislative action.

[00:22:36] Speaker 03:
And as to that question, which cuts across equal protection and retroactivity, the court does make a pretty broad statement that the objective in this case, the objective of rewarding past activities, is not a legitimate state purpose.

[00:22:59] Speaker 03:
that is pretty sweeping, at least taken in isolation.

[00:23:03] Speaker 07:
It is, Your Honor, but there's several points I'd like to make on that.

[00:23:06] Speaker 07:
First of all, the test that this court is called upon to apply here today is whether this is rationally related to a legitimate governmental purpose.

[00:23:15] Speaker 07:
The holding of the Zobel case was that there was no legitimate governmental purpose to this law.

[00:23:20] Speaker 07:
What they held is there's just no legitimate purpose as being served by making these arbitrary distinctions based purely on

[00:23:29] Speaker 07:
basically how long you lived somewhere.

[00:23:30] Speaker 07:
It wasn't, Your Honor, throughout several hypotheticals regarding veterans and past actions, that there was no actions being rewarded there.

[00:23:37] Speaker 07:
It was simply being alive and being in Alaska.

[00:23:41] Speaker 07:
And so the holding of the court was there's no legitimate governmental purpose.

[00:23:45] Speaker 07:
And that's separate from whether it's rational or related.

[00:23:48] Speaker 07:
And I think the importance of this case is we know that there's a legitimate governmental purpose to the CBSOA.

[00:23:53] Speaker 07:
And the reason we know that is because this court held

[00:23:56] Speaker 07:
that there was a legitimate governmental purpose to the CDSOA in SKF.

[00:24:01] Speaker 07:
And that legitimate governmental purpose was to reward domestic producers who had provided assistance to the ITC in its anti-dumping duty investigation.

[00:24:10] Speaker 07:
So the question is purely whether it's rationally related.

[00:24:14] Speaker 07:
We know that the CDSOA as a whole is rationally related because, again, this court held that it was in SKF.

[00:24:20] Speaker 07:
And so the question is just whether this retroactive spur

[00:24:25] Speaker 07:
is rationally related.

[00:24:27] Speaker 07:
And I see that I'm out of time.

[00:24:29] Speaker 07:
So if the court has no further questions.

[00:24:33] Speaker 02:
You are.

[00:24:34] Speaker 02:
Unfortunately, when you divide up your time, time flies.

[00:24:37] Speaker 07:
Thank you, Your Honors.

[00:24:38] Speaker 02:
Mr. Gallagher for the commission.

[00:24:46] Speaker 02:
And you've got four minutes.

[00:24:50] Speaker 04:
Good morning, Your Honor.

[00:24:50] Speaker 04:
Patrick Gallagher on behalf of the International Trade Commission.

[00:24:53] Speaker 04:
Just to clarify something that you asked about, Judge Bryson, about how it all works.

[00:24:59] Speaker 04:
Yeah, the mechanics of this distribution.

[00:25:02] Speaker 04:
In 2000, the Commission was required to take all the existing orders and create a list.

[00:25:07] Speaker 04:
That's part of the statute, 60 days.

[00:25:10] Speaker 04:
Created the list, provided it to customs.

[00:25:15] Speaker 04:
That's the master list, you can call it whatever you want.

[00:25:17] Speaker 04:
But customs would use that to then determine

[00:25:20] Speaker 04:
when parties applied for disbursements under a particular order for a particular fiscal year, if you're on the list and they published this, they put this in their initial publication of that first list, that if you have any debate about whether you should be on this list because you're not, then you should go to the commission because the commission makes that determination, not CBP.

[00:25:48] Speaker 04:
We argued in FKF that that was the time.

[00:25:50] Speaker 04:
first time that a list is published for an order, that the statute of limitations would begin to run.

[00:25:57] Speaker 03:
Now that's the, when you say the list is published for the order, which list?

[00:26:02] Speaker 03:
The list?

[00:26:02] Speaker 03:
Not the master list.

[00:26:03] Speaker 03:
The list that's provided to customs, customs in the next fiscal year.

[00:26:08] Speaker 04:
The next fiscal year.

[00:26:09] Speaker 04:
They'll publish it in the Federal Register.

[00:26:11] Speaker 04:
Here it is.

[00:26:12] Speaker 04:
Here's the orders.

[00:26:13] Speaker 04:
Here are the parties who are eligible.

[00:26:15] Speaker 03:
Here's the criteria for eligibility.

[00:26:16] Speaker 03:
Okay.

[00:26:17] Speaker 03:
So suppose I'm not on that list, but I think I should be.

[00:26:21] Speaker 03:
Then I write the commission.

[00:26:22] Speaker 03:
I say, please put me on the list.

[00:26:24] Speaker 03:
And the commission then, what, writes me back or issues another list or whatever?

[00:26:28] Speaker 04:
No, issues of determination based on whatever you're claiming.

[00:26:33] Speaker 03:
And then they send me a letter.

[00:26:35] Speaker 03:
They send me a letter saying, sorry, you're not eligible.

[00:26:39] Speaker 03:
Is it that letter that is the point of accrual of the cause of action?

[00:26:43] Speaker 04:
We argued that in SKF.

[00:26:45] Speaker 04:
The SKF court said, no, it comes later.

[00:26:49] Speaker 04:
as I understand SKF because there is no, they can't know whether there are duties available to them until they apply to CBP.

[00:27:00] Speaker 04:
So whatever the first fiscal year that they first apply for the duties, CBP is not going to find them on the list.

[00:27:08] Speaker 04:
It's going to say you're not on the list, you're rejected.

[00:27:11] Speaker 04:
If you have an issue with that, you should talk to the commission.

[00:27:14] Speaker 04:
If we've already issued a decision letter to them,

[00:27:19] Speaker 04:
We'll just say you haven't presented any new facts, which goes to the continued delay.

[00:27:24] Speaker 03:
Then CBP does what it does.

[00:27:27] Speaker 03:
It issues another list, right?

[00:27:30] Speaker 03:
It will deny the distribution to whoever that party was, and then they move on to the next fiscal year.

[00:27:35] Speaker 03:
Okay, and you say SKF identifies that denial as the point at which there is accrual, at least at the earliest.

[00:27:46] Speaker 04:
So the time the first, the claim first accrues is the first time that a party requests a disbursement under the statute or under the particular fiscal year and under an order under a particular fiscal year and that's denied.

[00:28:03] Speaker 04:
That's our reading of SKF.

[00:28:05] Speaker 04:
We had an earlier date and the court didn't agree with that.

[00:28:10] Speaker 04:
And that goes to the Judge Shen's question about continuing claims.

[00:28:14] Speaker 04:
SKF posits that every single year we have a new claim, a new claim, a new claim, except their claim they're bringing here is that they should be a petition supporter, not that they were denied in a particular year necessarily.

[00:28:26] Speaker 04:
They're saying because you need, as a prerequisite, to be a petition supporter to qualify.

[00:28:32] Speaker 04:
That only happens once for us, for the Commission, absent some unusual circumstance.

[00:28:37] Speaker 04:
We make that decision once, and they'll be rejected.

[00:28:40] Speaker 04:
The first time they'll be rejected will be the first time they ask.

[00:28:47] Speaker 02:
It was a final statement to make.

[00:28:52] Speaker 02:
I was going to go to incentivize your honor, but I think that was a little bit long.

[00:28:56] Speaker 02:
Thank you.

[00:28:58] Speaker 02:
Mr. Stewart has three minutes.

[00:29:04] Speaker 00:
Your honor.

[00:29:06] Speaker 00:
Please record.

[00:29:07] Speaker 00:
I'm Terrence Stewart.

[00:29:08] Speaker 00:
I'm here on behalf of Timken and MPB.

[00:29:11] Speaker 00:
There were some factual errors in terms of what Mr. Shelley had to say in terms of the timing, which you could tell.

[00:29:19] Speaker 00:
The order of 1989 and CDSOA came into existence in 2000.

[00:29:23] Speaker 00:
That's an 11 year spread, not a 20 year spread as was mentioned.

[00:29:29] Speaker 00:
On the Zobel case, that case was viewed by the Supreme Court as involving a very important constitutional right, freedom of movement.

[00:29:40] Speaker 00:
And hence there was a much higher standard that was applied in terms of looking at whether there was a compelling state interest in putting an infringement on the ability of freedom of movement that was there.

[00:29:52] Speaker 00:
So while the language is there in the context of the case, in our view it's not a relevant case for a new process.

[00:30:02] Speaker 00:
Because I don't think the SOL issue is critical, but because there's some confusion

[00:30:08] Speaker 00:
Let me try my hand at providing you what, in fact, the SKF case does and what, in fact, the June 4 decision is.

[00:30:22] Speaker 00:
Mr. Gallagher has reviewed the initial list and when there are letters that are sent to the Commission and rejections, exceptions, et cetera, that happens.

[00:30:33] Speaker 00:
And that is all true.

[00:30:36] Speaker 00:
Federal Circuit's decision in SKF goes off of the CBP decision or initial listing.

[00:30:44] Speaker 00:
By statute, CBP is required to provide notice to the public that there will be a distribution.

[00:30:52] Speaker 00:
And CBP puts out information as to amounts that have been collected in the first seven months ahead of putting out that notice.

[00:31:04] Speaker 00:
Federal Circuit, as I read the decision, basically says the time at which all facts are known so that one could file is when a party knows that there will be money to be distributed in the year, not the first year that they apply, but rather is there money in a particular year that's going to be available.

[00:31:25] Speaker 00:
And so by the time that notice comes out, that information is there.

[00:31:30] Speaker 00:
And that is the basis upon which they

[00:31:33] Speaker 00:
the court went, that's the date that is in the SKF decision, and that is the date that Customs puts out.

[00:31:41] Speaker 00:
It's a notice that there will be distributions.

[00:31:44] Speaker 03:
And that occurs, I take it from what everyone has said, if I'm understanding it correctly, after the point at which a party who has not been included, say on the master list or otherwise, included in the prospective payout

[00:32:00] Speaker 03:
has had a chance to make its submission to the commission or to CBP and say, you've left me out.

[00:32:08] Speaker 03:
At that point, that has already been denied?

[00:32:13] Speaker 00:
It is viewed by customs that if they have not gotten an affirmative statement from the commission, they are not on the list.

[00:32:21] Speaker 00:
They do send them a letter of bouncing the certification.

[00:32:25] Speaker 00:
They being which?

[00:32:27] Speaker 00:
Customs sends a letter of bouncing.

[00:32:29] Speaker 00:
if SKF sends a certification in where they're not on the list, they will get a letter from Customs at some point saying you're not on the list, you're not eligible.

[00:32:38] Speaker 03:
And that at some point will be?

[00:32:41] Speaker 03:
That's before distributions occur.

[00:32:43] Speaker 03:
Before distributions, but is it after the?

[00:32:45] Speaker 03:
It's after that June date.

[00:32:47] Speaker 03:
That June date.

[00:32:47] Speaker 00:
That's what I'm concerned about.

[00:32:50] Speaker 00:
It is after that date, but it is viewed, I believe, by Customs as a pro forma.

[00:32:55] Speaker 00:
If you're not on the list,

[00:32:57] Speaker 00:
and they haven't received word from the commission that you should be added to the list, then you will be rejected.

[00:33:04] Speaker 00:
And you're sending in a certification to kind of preserve your rights to take an appeal.

[00:33:09] Speaker 00:
But it's not that there is a new factual data point that's going to come along, oh, I got rejected.

[00:33:16] Speaker 00:
Gee, that's a surprise.

[00:33:17] Speaker 03:
Yeah.

[00:33:18] Speaker 03:
When, though, does the complaining party

[00:33:24] Speaker 03:
get some kind of response on the merits of that party's request to be considered.

[00:33:31] Speaker 00:
That's the notice that they get from the commission when they ask to be added.

[00:33:36] Speaker 00:
And that was the argument that, as Mr. Gallagher said, the ITC made before the SKF panel.

[00:33:43] Speaker 03:
That was not the date that the court found.

[00:33:45] Speaker 03:
But does that occur every year that there's a distribution?

[00:33:48] Speaker 03:
That's just way back at the beginning.

[00:33:50] Speaker 03:
But in terms of if I want to preserve my right to make a claim,

[00:33:53] Speaker 03:
in a particular year, who do I go to?

[00:33:56] Speaker 03:
Do I go to the commission or do I go to CPP?

[00:33:59] Speaker 00:
Well, if you have new facts to go to the commission, I suppose you would go to the commission.

[00:34:03] Speaker 03:
I hope that the commission has changed its mind.

[00:34:06] Speaker 00:
If it's the same, if there are no change in facts, you would simply file a new certification each year and you would get the same letter.

[00:34:13] Speaker 03:
But do you file that with customs?

[00:34:14] Speaker 03:
You would file that with customs.

[00:34:16] Speaker 03:
After customs has already announced its intent to distribute.

[00:34:19] Speaker 00:
Correct.

[00:34:20] Speaker 00:
Did that occur in this case?

[00:34:23] Speaker 00:
Was there such a request?

[00:34:25] Speaker 00:
I believe Mr. Shelley said that SKF, and I believe it was also true for JTEC, filed a submission.

[00:34:31] Speaker 00:
At some point in time, Customs modified their notices to say whether you're in fact somebody who qualifies under the statute or whether you simply want to preserve your right to take an appeal, you must file a certification.

[00:34:49] Speaker 00:
Okay.

[00:34:52] Speaker 02:
Thank you, Mr. Stewart.

[00:34:53] Speaker 02:
Mr. Shelley has a little rebuttal time.

[00:34:57] Speaker 05:
Thank you, Roger.

[00:34:57] Speaker 02:
Three minutes.

[00:34:58] Speaker 05:
I'd just like to make a couple of points.

[00:35:00] Speaker 05:
First, the initial ITC notice, which they made their master list, that was triggered on the language in the CDSOA requiring you to have checked the box.

[00:35:14] Speaker 05:
And so at that point, that list is invalid to the extent that

[00:35:19] Speaker 05:
in today's case was, it was, it was imperincibly retroactive in, as a criteria for determining whether you made that list.

[00:35:29] Speaker 05:
And until we've gone through all this litigation and have succeeded in one of them, that list can't be changed.

[00:35:35] Speaker 05:
But we've already first, the first criteria is that that list is incorrect and we should have been on that list all along.

[00:35:41] Speaker 05:
And in fact, despite not having been on the ITC list, each year, each fiscal year, we did file certifications with customs

[00:35:49] Speaker 05:
and received rejections from customs because we were not on the ITC letter.

[00:35:54] Speaker 03:
Okay, and those rejections, was it more than two years from the date of those rejections that you filed your complaint?

[00:36:01] Speaker 05:
I don't remember the dates because if the rejection letters came at the end of the ITC, the customs notice is published in June or 60 days prior to the, in which to file your certifications from the June notice.

[00:36:18] Speaker 05:
After that 60-day period, we would file our certifications within that 60-day period.

[00:36:23] Speaker 05:
After that 60-day period, which is July, August, at some point we would then, in the next month or so, receive the letter from customs denying us from eligibility because we were not on the ITC list.

[00:36:37] Speaker 03:
That gets us right in September, which is just about exactly two years.

[00:36:43] Speaker 05:
And our argument is that first regarding the DECTA issue in SKF on this, there was no issue of eligibility of statute of limitations in that case because those cases were filed well within any of the two year periods that were up for a debate except possibly the ITC's position.

[00:37:05] Speaker 05:
So that, we did that.

[00:37:12] Speaker 05:
despite when we get the letter of rejection from customs, and despite the fact that customs has published a temporary or preliminary list of funds that have been gathered for that, until they send distributions to all the affected domestic producers at the end of the fiscal year, which in this case was followed within that two-year period, there is no certainty that there's going to be any

[00:37:40] Speaker 05:
impact or adverse impact on SKF.

[00:37:43] Speaker 05:
And there is no adverse impact until Temkin or the other companies get the money from the customs service.

[00:37:48] Speaker 05:
So the fact that there may be distributions and that that is known possibly earlier, there's no final decision on that until the money goes out.

[00:37:57] Speaker 05:
And our position is that that is when the two-year statute of limitations begins

[00:38:04] Speaker 05:
And we believe that the SKF decision allows that because there was not a decision in that case.

[00:38:10] Speaker 05:
There was no need for a decision on when the statute of limitations began to run.

[00:38:14] Speaker 05:
There was only a decision that we were within that timeframe.

[00:38:18] Speaker 05:
And there was a dicta that said, perhaps it begins when the notice comes out.

[00:38:25] Speaker 05:
But there was no decision for that.

[00:38:26] Speaker 05:
And there's no decision of CIT on that issue.

[00:38:29] Speaker 03:
Just one very quick last question.

[00:38:31] Speaker 03:
Is there anywhere in the record that we would be able to find the date

[00:38:35] Speaker 03:
of that letter from CBP telling you that your certification was not being accepted.

[00:38:41] Speaker 03:
A letter that came in response to your submission of a certification within 60 days of the June date.

[00:38:47] Speaker 05:
It might have been, we might have put it in the original escape joint appendix.

[00:38:52] Speaker 05:
I could check that.

[00:38:53] Speaker 05:
I don't believe it's in this case.

[00:38:55] Speaker 05:
Not in the record of this case?

[00:38:56] Speaker 05:
Not in the record of this case as far as I know.

[00:38:58] Speaker 05:
I'll double check it.

[00:38:59] Speaker 05:
I don't think we need to do it because the timing was

[00:39:02] Speaker 03:
Well, your theory and the defendant's theory of statute of limitations are quite different, but it may be that we end up thinking that something in the middle and that it may matter as to when that letter was sent.

[00:39:15] Speaker 05:
And there was also the continuing argument.

[00:39:20] Speaker 02:
Thank you, Mr. Shelley.

[00:39:22] Speaker 02:
The case is submitted.