[00:00:00] Speaker 02: The final case for argument this morning is 12-1419 Tampa Bay Fisheries. [00:00:07] Speaker 02: And we have a different counsel. [00:00:10] Speaker 02: Are you Mr. Kinkle or Mr. Hanson? [00:00:12] Speaker 02: Mr. Kinkle. [00:00:12] Speaker 02: Thank you. [00:00:15] Speaker 02: And you were also on the brief. [00:00:16] Speaker 05: I was. [00:00:18] Speaker 05: I appreciate that. [00:00:20] Speaker 05: I was just delayed by the snow and I wasn't sure I was going to be on time. [00:00:25] Speaker 05: May it please the court. [00:00:26] Speaker 05: I'd like to begin by offering a correction or clarification of the record. [00:00:30] Speaker 05: When I was preparing for argument yesterday, I was able to confirm that one of the plaintiffs, Tampa Bay Fisheries, did check the opposed box in the ITC questionnaire, the final ITC questionnaire. [00:00:42] Speaker 05: Now in our briefs and below, we contend that we didn't know, but we did confirm that yesterday. [00:00:48] Speaker 05: So I wanted to make that clear. [00:00:50] Speaker 03: And what about Singleton? [00:00:51] Speaker 05: Singleton, we were not able to confirm. [00:00:53] Speaker 03: Now what's the relationship between Singleton and Tampa Bay? [00:00:56] Speaker 05: They do share a common parent company. [00:00:59] Speaker 05: So they do share a common parent company. [00:01:02] Speaker 03: And you're treating them as essentially the same entity for purposes of this appeal, I take it. [00:01:08] Speaker 01: Yes. [00:01:08] Speaker 01: Do you know whether or not the same individuals prepared the responses for both entities? [00:01:16] Speaker 05: I don't know. [00:01:19] Speaker 03: Did you make an effort, I know you don't have your copies, a copy of the questionnaires that were submitted, but did you make an effort to obtain those at any point? [00:01:31] Speaker 05: Yes, we did. [00:01:32] Speaker 05: We asked our client for them. [00:01:36] Speaker 03: You couldn't have them? [00:01:37] Speaker 03: Why didn't you get them? [00:01:38] Speaker 03: They did not have them. [00:01:40] Speaker 03: You didn't have them. [00:01:42] Speaker 03: Did you make an effort to get them from the government? [00:01:48] Speaker 05: I don't know. [00:01:49] Speaker 05: Frankly, I don't know. [00:01:49] Speaker 05: I can tell you how I found them yesterday. [00:01:52] Speaker 03: Well, you actually have the questionnaire, the full questionnaire? [00:01:56] Speaker 03: No, no, no. [00:01:57] Speaker 05: Just the box. [00:01:58] Speaker 05: And just for Tampa Bay. [00:02:00] Speaker 05: And how did you find it? [00:02:01] Speaker 05: It was on the IPC website, in their EDIS system. [00:02:06] Speaker 01: I thought your argument was that because this was decided on a preliminary motion, that you never had the opportunity to take discovery from the government and to obtain [00:02:18] Speaker 01: the documents. [00:02:22] Speaker 05: That was our understanding at the time. [00:02:24] Speaker 05: I just know that when I was preparing for argument, I was able to confirm that they did check the opposed box. [00:02:29] Speaker 05: But the court below assumed that they did not check the support box, so I don't think it had any impact on the court below. [00:02:38] Speaker 01: Well, let me ask you that. [00:02:39] Speaker 01: Do you think that makes a difference to your argument, whether they took a neutral position in the face of responding to the questionnaires or took an actual opposition position? [00:02:51] Speaker 05: I don't think it makes a difference. [00:02:52] Speaker 05: And the reason is that in this case, unlike Ashley or the earlier case of SKF or Shea Sidney, we only have [00:03:03] Speaker 05: You know, the record is just that list of documents. [00:03:06] Speaker 05: That's what was filed by the commission. [00:03:08] Speaker 05: It's just a list of documents. [00:03:10] Speaker 05: And that's all we have in terms of a record. [00:03:13] Speaker 05: Now it says you can go look at the website. [00:03:15] Speaker 05: You might be able to get access to some of them, which we do. [00:03:18] Speaker 02: So you're saying because it was the government's burden to prove that you opposed it, so they were the ones that had to come forward showing your opposition? [00:03:28] Speaker 05: They were under obligation to file the record with the court. [00:03:34] Speaker 05: do that. [00:03:36] Speaker 05: And also, even if we were able to find in our clients' files some version of a questionnaire response, they'd undergo revisions. [00:03:43] Speaker 05: There were one or two questionnaire responses and several revisions on the list filed by the IPC. [00:03:51] Speaker 05: Now, we don't have access to all of those because some of them are confidential, so we can't get access through the website. [00:03:57] Speaker 05: That's why we can't confirm whether or not Singleton did anything differently. [00:04:01] Speaker 03: Well, to go back to my first question, I mean, yes, you can't get the questionnaires, I guess, from the website. [00:04:09] Speaker 03: And yes, you didn't have formal discovery. [00:04:12] Speaker 03: But I want to make sure, you didn't make even an informal request of the ITC, please give us copies. [00:04:19] Speaker 03: We don't have the copies. [00:04:21] Speaker 03: We need them. [00:04:22] Speaker 03: No such request was made. [00:04:23] Speaker 03: Is that right? [00:04:25] Speaker 05: That's correct. [00:04:27] Speaker 01: Does that, I mean, if we were, [00:04:31] Speaker 01: Just working on a completely clean slate, would that, in your view, make a difference to the First Amendment argument, whether there was an affirmative opposition or simply the absence of a statement of support? [00:04:43] Speaker 05: No. [00:04:45] Speaker 05: Even with an affirmative opposition, we still believe the way this was applied to Tampa Bay and to Singleton was unconstitutional. [00:04:53] Speaker 05: The reason being that in this case, all you've got is the box. [00:04:58] Speaker 05: You've got that one page. [00:05:00] Speaker 05: One page from the questionnaire. [00:05:02] Speaker 05: Now questionnaire is not just one page. [00:05:03] Speaker 05: Questionnaire is dozens of questions, many of which require a narrative response. [00:05:09] Speaker 05: So there easily could be, there could be an explanation of why they oppose, which may indicate that they nevertheless support the petition. [00:05:16] Speaker 05: So there may be some explanation in there. [00:05:18] Speaker 05: There are lots of narrative responses and questionnaire responses. [00:05:22] Speaker 05: We don't have any of those. [00:05:23] Speaker 05: The ITC didn't submit them, didn't list them. [00:05:27] Speaker 05: So all they listed was that one page. [00:05:29] Speaker 05: So that's all we've got in this case, is one page which says oppose. [00:05:33] Speaker 05: So the question before this court is different than it was in Ashley or in Shea Sydney or in SKF. [00:05:39] Speaker 05: That is, is the box all you need? [00:05:43] Speaker 05: And the government, the Justice Department, on page 16 of their brief says yes. [00:05:47] Speaker 05: The government says, hey, they set up a two-part test. [00:05:50] Speaker 01: One part is, did they? [00:05:56] Speaker 01: Ashley saying, is the box all you need? [00:05:58] Speaker 01: But as I understand it is that in SKF, they said the box is not enough. [00:06:04] Speaker 01: You have to have something more. [00:06:07] Speaker 01: In Shea Sydney, they found that there was something more, which included at one point checking a box. [00:06:14] Speaker 01: But then in Ashley Furniture, they said that something more is not enough. [00:06:18] Speaker 01: You have to have the box, didn't they? [00:06:21] Speaker 05: Well, you certainly could read it that way. [00:06:23] Speaker 05: But the court had the whole record before. [00:06:26] Speaker 05: I would assume that the court looked at the whole record and said, if you look at the whole record, there was nothing else to dispute what was checked, what the box indicated. [00:06:34] Speaker 05: So we're going to go with a box. [00:06:37] Speaker 05: And it's true. [00:06:38] Speaker 05: But I think that begs the question. [00:06:40] Speaker 05: One important part of our constitutional argument is the subsequent Supreme Court decision, subsequent to Ashley, that says, you can't burden more speech than is necessary to carry out the government purpose. [00:06:53] Speaker 05: You can't sacrifice speech for convenience. [00:06:55] Speaker 05: And that's clearly what the ITC did here. [00:06:58] Speaker 05: They said, well, we got to figure out the support thing. [00:07:01] Speaker 05: Look, they've been checking this box for years. [00:07:04] Speaker 05: We'll just use that. [00:07:05] Speaker 05: So they placed this huge new burden on that speech, which prior to that case had been used as an element in their injury analysis. [00:07:15] Speaker 05: But now you've got this new burden on that one question in the questionnaire responses. [00:07:21] Speaker 05: You oppose, you don't support, you go neutral. [00:07:24] Speaker 05: That's going to determine whether or not you qualify for a benefit. [00:07:27] Speaker 03: Let me see if I understand what you're suggesting that could count as support if we had the questionnaire. [00:07:37] Speaker 03: And your argument in your brief at various points suggests that you've filed several, a number of 10, I guess, is the number you have listed, questionnaire responses. [00:07:48] Speaker 03: Is your argument that merely responding [00:07:53] Speaker 03: with factual information that is requested in a questionnaire is enough to constitute support? [00:08:01] Speaker 03: Or is it that there may be statements in the questionnaire indicative of support that would constitute support? [00:08:11] Speaker 03: Yes. [00:08:11] Speaker 03: It's the latter, not the former. [00:08:12] Speaker 05: There may be statements. [00:08:13] Speaker 05: As I said, there are lots of narrative responses. [00:08:16] Speaker 03: We don't know. [00:08:16] Speaker 03: Now, who in your view bears the burden [00:08:20] Speaker 03: of just coming in and asking for a bird amendment payment, who bears the burden of establishing the requisite predicate for that payment? [00:08:33] Speaker 05: Well, I think when you're, now this is after the ITC investigation. [00:08:37] Speaker 03: No, no, just let's say, you know, the ITC, you say, hey, there's a payment, you write the ITC, say we want, we want to be paid. [00:08:50] Speaker 03: Yes. [00:08:50] Speaker 03: come out with a letter and the letter says no. [00:08:53] Speaker 03: Now, do you have the burden under those circumstances to show that there is a record-based reason that you should win and that they should [00:09:06] Speaker 03: not be able to sustain their note. [00:09:09] Speaker 05: Well, I think there is some burden. [00:09:11] Speaker 05: We certainly have to show we've incurred qualifying expenditures. [00:09:14] Speaker 05: We have to show that we were a domestic producer, that we're still in operation. [00:09:17] Speaker 05: There are certain requirements that we have to show. [00:09:19] Speaker 03: Well, the statutory requirement is to show support. [00:09:23] Speaker 03: Right. [00:09:23] Speaker 03: Do you have the obligation, the burden, of establishing whatever the predicate is that's necessary to show support? [00:09:31] Speaker 05: Well, I don't think so because the ITC has [00:09:34] Speaker 05: all the information within its control to make that determination. [00:09:38] Speaker 05: And I think that's why we cited the NAMM decision of the DC Circuit is because when you have an agency that has all the information they need to make a support determination, you can't then require, you can't compel speech on the part of some private party to say yes or no. [00:09:56] Speaker 05: That's what the NAMM decision says. [00:09:58] Speaker 05: That's how I think the Supreme Court would analyze this case if it did. [00:10:03] Speaker 02: So let me just take it. [00:10:04] Speaker 02: So your view is that you file and then the government. [00:10:08] Speaker 02: So what in your view would have been sufficient for the government to come forward with in order to dislodge your entitlement to the Byrd Amendment, Chair? [00:10:18] Speaker 05: Well, I'm not sure, but they could not rely on that speech. [00:10:20] Speaker 05: If they relied on that speech, then they had the burden [00:10:23] Speaker 02: to come forward and show that... They couldn't rely on that speech, so they couldn't rely on anything in the questionnaire or just the checkboxes? [00:10:30] Speaker 05: They could have analyzed the entire record, maybe made a determination of whether there was reason that this party should be included in the domestic industry or not. [00:10:40] Speaker 05: And in fact, the commission does that in every case. [00:10:43] Speaker 05: You know, if you look, the commission always makes a determination in every case whether or not some US producer should be excluded from the industry because of a foreign affiliation. [00:10:54] Speaker 05: They make that decision in every case. [00:10:56] Speaker 02: But the statute requires a showing of support, right? [00:10:58] Speaker 02: So you're saying they should look at... Well, it shows support through questionnaire response. [00:11:03] Speaker 05: So it's certainly conceivable that the statute could have been interpreted to say, you file questionnaire responses, you supported the effort, you participated. [00:11:12] Speaker 03: Well, but I think in response to me, you said that just filing a factually accurate questionnaire response would not be support, right? [00:11:20] Speaker 05: Under the case law now, I think that's not true, but I'm saying [00:11:24] Speaker 05: If we had, if this was, if we were starting from a fresh slate, then I would say that we, you know, if we demonstrate we're a producer and we've incurred the qualifying expenditures, we were not excluded from the industry during the initial investigation, there's no reason to exclude us now. [00:11:39] Speaker 03: You can't do it on a basis of our speech. [00:11:40] Speaker 03: But you just written the support requirement out of the statute altogether, right? [00:11:42] Speaker 05: No, no. [00:11:43] Speaker 05: We supported by filing the questionnaire response. [00:11:45] Speaker 03: But you're obliged to file the questionnaire response. [00:11:48] Speaker 03: That's an illegal obligation, right? [00:11:51] Speaker 03: You can't say, [00:11:52] Speaker 03: We choose not to. [00:11:53] Speaker 03: Isn't 19 U.S.C. [00:11:54] Speaker 03: 1333 required to file that? [00:11:57] Speaker 05: Actually, many do choose not to. [00:12:00] Speaker 03: It's up to the agency to enforce. [00:12:03] Speaker 05: No, it's up to the agency to enforce. [00:12:05] Speaker 05: Yeah, but the agency has a legal right to enforce it, right? [00:12:08] Speaker 05: It has a legal right to enforce. [00:12:10] Speaker 03: So you have a legal obligation to produce it, subject to the agency's decision not to enforce. [00:12:17] Speaker 03: I mean, if you get a subpoena from [00:12:20] Speaker 03: the United States District Court, you have an obligation to show up. [00:12:23] Speaker 03: Now, maybe somebody won't choose to enforce the subpoena, but you have an obligation. [00:12:27] Speaker 03: This is like a subpoena, right? [00:12:29] Speaker 05: No, it's more like a discovery request, because that is what you're doing. [00:12:34] Speaker 05: You're asking a potentially neutral third party for information. [00:12:38] Speaker 05: It's just like a civil litigation. [00:12:41] Speaker 05: You can issue a discovery request to somebody, and if they don't comply, you can try to get it enforced. [00:12:48] Speaker 05: Sometimes you do, sometimes you don't. [00:12:50] Speaker 03: Okay, well suppose that it were to turn out that the questionnaire responses all were merely factual and didn't have anything in them from which one could infer one way or the other as to whether you support. [00:13:06] Speaker 03: They simply said, we produced this amount, these are our prices, these are our sales, whatever the information is in the questionnaire response. [00:13:14] Speaker 03: Would that constitute support? [00:13:16] Speaker 05: The agency could make that. [00:13:17] Speaker 05: Termination. [00:13:19] Speaker 03: But if you're using the reward analysis. [00:13:21] Speaker 03: Please, please. [00:13:22] Speaker 03: Suppose the agency were to determine that the mere factual presentation in the questionnaire response was not a showing of support. [00:13:36] Speaker 03: Would that be legally erroneous? [00:13:42] Speaker 05: As a matter of law? [00:13:44] Speaker 05: Not under the current case law? [00:13:46] Speaker 03: So if we were to go back, send this case back, let's say hypothetically, to the trial court and the trial court were to look at the questionnaire response and find nothing in there that said, in effect, we support the petition, then you would lose. [00:14:10] Speaker 05: I'm not sure about that because I think in that case on the complete record, [00:14:14] Speaker 05: What I would argue, as we did in our brief, is that if the agency has made a determination not to exclude these people from the industry by virtue of their foreign affiliation, despite being required to do so, then they shouldn't be excluded. [00:14:30] Speaker 05: Maybe they could be excluded if they actively opposed, if they subverted the process. [00:14:35] Speaker 05: But I think if they cooperated in the investigation, [00:14:38] Speaker 05: And then at that point, I think they've indicated their support through cooperate or through questionnaire response. [00:14:46] Speaker 05: And that's all the statute requires. [00:14:47] Speaker 05: The statute doesn't say anything about boxes. [00:14:50] Speaker 03: So you really are coming around to the position that I thought you just disclaimed earlier in response to my first question. [00:14:56] Speaker 03: You really are saying as long as you file a questionnaire response. [00:15:01] Speaker 03: That's the complete response. [00:15:04] Speaker 03: You're entitled to payment. [00:15:05] Speaker 05: And we're not excluded, and we are an industry member, not excluded by virtue of our foreign affiliation. [00:15:10] Speaker 05: I would say yes. [00:15:12] Speaker 01: And you could show injury, I assume. [00:15:14] Speaker 01: I assume you'd have to, you agree you'd have to show that you were among those injured. [00:15:21] Speaker 05: Not individually. [00:15:22] Speaker 05: That's sort of the, one of the unfortunate things here is when a petitioner files, they file on behalf of the entire industry, all US producers. [00:15:32] Speaker 05: So they're acting on behalf of an industry. [00:15:35] Speaker 05: And then afterwards, you're carving it up and say, we're going to reward some industry members and some not. [00:15:40] Speaker 05: And then we're going to punish some employees because their employers exercise their First Amendment rights. [00:15:46] Speaker 05: I don't see the fairness there. [00:15:48] Speaker 05: I don't see why those employees should suffer because their bosses said they opposed. [00:15:53] Speaker 01: Well, your argument sounds very like the dissent in Ashley Furnisher. [00:16:00] Speaker 05: Yes. [00:16:01] Speaker 01: And isn't it a problem that it's a dissent? [00:16:03] Speaker 05: It is a problem. [00:16:04] Speaker 05: It's a dissent. [00:16:05] Speaker 05: But the facts are different. [00:16:06] Speaker 05: What the dissent said was it invites serious constitutional questions. [00:16:11] Speaker 05: And I think that's what you've got here because all you've got is that expression of an opinion to hang your hat on. [00:16:17] Speaker 05: Not you, but for the agency to defend itself. [00:16:21] Speaker 05: They're saying that this is consistent with the First Amendment because we're relying exclusively on that opinion expressed there. [00:16:30] Speaker 05: to deprive you of these things. [00:16:32] Speaker 01: Isn't it the fact that in Ashley Furniture, a majority concluded that there must be an affirmative expression, either through the checking of a box or the submission of a separate letter saying, we are affirmatively in support. [00:16:48] Speaker 01: Isn't that what they said? [00:16:49] Speaker 01: That's what they said. [00:16:50] Speaker 01: So how do we as a panel do anything with that? [00:16:53] Speaker 05: Well, I remember that Courtney Shea Sidney said that was an unreasonable approach. [00:16:56] Speaker 05: So there's at least some difference. [00:16:58] Speaker 02: I thought Shea Sidney [00:16:59] Speaker 05: It did, it did proceed. [00:17:02] Speaker 05: So there's some difference of approach, let's say, between the two decisions. [00:17:07] Speaker 05: You've got to supplement the Supreme Court decision that says if you're going to compel speech that way, you've got to go to that additional step and it's the government's burden to show. [00:17:16] Speaker 05: So you place the burden entirely on the petitioning party when it's the government who is now imposing that speech requirement, a content-based speech requirement. [00:17:25] Speaker 05: And it's their burden in that circumstance. [00:17:27] Speaker 05: If we allege they violated our First Amendment right, they have the burden of demonstrating that it's the least burdensome alternative. [00:17:37] Speaker 05: And that's what the Supreme Court does. [00:17:38] Speaker 01: What's the key language from the Supreme Court that you rely upon? [00:17:42] Speaker 05: It's not to sacrifice speech for convenience. [00:17:46] Speaker 05: And that's exactly what's been done here, to sacrifice speech for convenience. [00:17:54] Speaker 02: Why don't we hear from the government? [00:17:55] Speaker 02: We've exceeded your time. [00:17:56] Speaker 02: We'll restore three minutes for rebuttal, and we'll add four minutes to the government's time, and you all can figure out how you want to split that difference up. [00:18:06] Speaker 02: Mr. Tomlinson. [00:18:07] Speaker 06: Thank you, Your Honor, for making this report. [00:18:09] Speaker 06: Your Honor, appellants have gone to great lengths to try to distinguish this case, but the reality is that this case is on all fours with Ashley Furniture. [00:18:19] Speaker 06: They've tried to re-characterize certain things, but what Ashley Furniture had [00:18:23] Speaker 06: You had two appellants that did not affirmatively express that they supported the petition, who were trying to claim that, well, we may not have affirmatively expressed support, but look, we submitted all these questionnaires that were very helpful to the investigation and the petition and the ultimate outcome. [00:18:42] Speaker 06: Therefore, we should be petition supporters. [00:18:44] Speaker 06: This court, a panel of this court in Ashley Furniture said, no, that's not enough. [00:18:48] Speaker 06: You have to affirmatively express [00:18:51] Speaker 06: support for the petition. [00:18:52] Speaker 06: And when saying that, this Court specifically referenced the three options on this specific questionnaire. [00:19:01] Speaker 01: But if the holding in Ashley Furnitzer is, as your friend on the other side argues, inconsistent with a different holding in Shae Sidney, which is this panel bound by? [00:19:16] Speaker 06: Well, Your Honor, I reject the premise of the question because it seems clear to me that it's not inconsistent. [00:19:22] Speaker 06: These aren't two separate lines of cases where the Ashley Furniture Court wasn't aware of Shay Sidney or had not considered Shay Sidney. [00:19:29] Speaker 06: It specifically considered Shay Sidney and specifically considered the idea of whether it's holding was inconsistent with Shay Sidney, did go into a discussion of that and said it's not inconsistent. [00:19:39] Speaker 06: And I would also point out that the Shay Sidney case on page 1381 [00:19:45] Speaker 06: of the Shea Sydney case was characterizing the relevant test of SKF. [00:19:49] Speaker 06: It specifically said, in SKF, we noted that while a bare statement of support was insufficient, such a statement would be enough when combined with the activity of responding to questionnaires. [00:20:01] Speaker 06: And so that's the same test we're articulating here. [00:20:05] Speaker 06: As Your Honor pointed out, a bare statement of support may not be enough on its own, but it is necessary. [00:20:11] Speaker 06: This court said it in footnote 26 of SKF. [00:20:13] Speaker 06: It certainly said it several times in the Ashley Furniture decision that, you know, it's not enough to simply say, yes, we support and then violate your legal duties under Section 1333 by not participating by submitting a questionnaire, but it's certainly a necessary prerequisite for CDSOA distributions. [00:20:31] Speaker 06: And that's the controlling fact in this case, because appellants go to great lengths to try to make a big deal out of what was in the record, what was not in the record. [00:20:39] Speaker 06: The fact is, under Iqbal and Twombly, under the pleading standard, they had to allege [00:20:43] Speaker 06: We affirmatively express support for this petition. [00:20:47] Speaker 06: Nowhere in their complaint, nowhere in their briefing, they don't allege that because they can allege that. [00:20:53] Speaker 06: They never made an affirmative allegation that they expressly express support for this petition. [00:20:59] Speaker 06: And that was a required element of their claim to recover CDSOA distributions and they didn't do it. [00:21:05] Speaker 02: There is language in Shea Sydney that says, I mean it sounds like a holding because it says we hold. [00:21:12] Speaker 02: that when a U.S. [00:21:13] Speaker 02: producer assists an investigation by responding to questionnaires but takes no other action probative of opposition or support, the producer has supported the position and is eligible. [00:21:24] Speaker 02: That seems to be inconsistent with Ashley Furniture, does it not? [00:21:29] Speaker 06: Perhaps reading that in isolation, Your Honor, maybe, but I think earlier in that decision that Chase Indy Court was specifically noted that this and noted several times [00:21:41] Speaker 06: that the appellant in Chase-Sydney had in response to the preliminary questionnaire specifically said, yes, we support this petition. [00:21:48] Speaker 06: And I would also note that the court in SKF, essentially that can't possibly be the rule that simply submitting a questionnaire is enough. [00:22:03] Speaker 06: And the reason it can't possibly be sufficient [00:22:08] Speaker 06: For one, as Your Honor pointed out, it completely reads the support requirement totally out of the statute. [00:22:15] Speaker 02: It would rewrite the statute. [00:22:16] Speaker 02: Well, it doesn't say just a questionnaire is enough. [00:22:18] Speaker 02: That sentence at least says, and takes no other action probative of support or opposition. [00:22:23] Speaker 02: So it's unlike SKF where there was an oppose, right? [00:22:27] Speaker 06: Right. [00:22:29] Speaker 02: So it's not just questionnaires and nothing else. [00:22:31] Speaker 02: It's questionnaires and no other indication of support, which is what the sentence I read just says, right? [00:22:38] Speaker 06: Well, I suppose, but again, earlier in that decision, this court in Shea Sydney specifically noted several times and discussed in some detail the actual responses that Shea Sydney gave to the questionnaire and specifically said, you know, that Shea Sydney had expressed support. [00:22:53] Speaker 06: And this court specifically noted in response to this questionnaire response that a producer's expression of support in the response to the preliminary questionnaire is critical to the determination of whether to commence an investigation [00:23:07] Speaker 06: of an anti-Delphi petition. [00:23:09] Speaker 06: That was at page 1382. [00:23:10] Speaker 06: And so this court was emphasizing and placing great weight on the fact that the petitioner in Chase Sydney had specifically expressed support for the petition in its preliminary work. [00:23:20] Speaker 02: I want to touch on the discussion your friend had with Judge Bryson and others regarding who's got the burden of moving forward and coming up with information, et cetera. [00:23:30] Speaker 02: Can you address that for a few minutes? [00:23:32] Speaker 06: Sure, Your Honor. [00:23:33] Speaker 06: I'd be happy to. [00:23:33] Speaker 06: Because, and I think this comes back to what I mentioned a second ago, the Equal Plumbly Standard, that here we have a case that was decided on a 12B5. [00:23:43] Speaker 06: And so the court dismissed this correctly for a failure to state a claim upon which relief can be granted for the specific reason that, as I mentioned earlier, they have never alleged that they affirmatively expressed support for the petition. [00:23:56] Speaker 06: And so that was a required element of their claim for CDSOA distribution. [00:24:01] Speaker 06: If they had done that, then we may be talking about something very different here because they would have established that element and they would have triggered certain discovery obligations. [00:24:10] Speaker 06: But given that they did not plead a required element of their claim, the government and the ITC both moved to dismiss under Rule 12B-5. [00:24:20] Speaker 06: And because they had failed to plead this essential element of their claim, the trial court correctly dismissed their claim. [00:24:28] Speaker 06: their claim under Rule 12B5. [00:24:29] Speaker 06: And so here we never even got to the stage where there was any kind of official obligation to produce these records because they hadn't alleged that they indicated support. [00:24:39] Speaker 01: What about the argument that things that the Supreme Court said in McCullen after Ashley should impact our interpretation of the First Amendment issue here? [00:24:51] Speaker 06: Well, yes, Your Honor. [00:24:52] Speaker 06: And first and foremost, I would point out on this, in their brief, [00:24:57] Speaker 06: Tampa Bay Fisheries never actually references their First Amendment claim in their initial brief. [00:25:02] Speaker 06: It was true that they pled an as-implied First Amendment claim that was dismissed, but in their initial brief to this court, they never actually appealed that dismissal. [00:25:10] Speaker 06: And so certainly the government's position is they waived that argument. [00:25:13] Speaker 06: They waived the dismissal of their First Amendment claim. [00:25:16] Speaker 06: To the extent that this court decides that it is properly before the court, and this is my first opportunity to address it, I would certainly emphasize the fact that this McCullen versus Coakley [00:25:27] Speaker 06: involved a very, very different set of circumstances and a very, very different test. [00:25:31] Speaker 06: McCollum versus Coakley involved a Massachusetts state law that placed restrictions on who could be near abortion clinics, on public roadways and sidewalks. [00:25:41] Speaker 06: And so there you had individual speech that was very political, very religious in nature. [00:25:46] Speaker 06: And there the court, that's just a very different circumstance because it involved a time, place, and manner restriction, did not involve any restrictions on commercial speech whatsoever. [00:25:56] Speaker 06: And so we would certainly argue that that's completely inapplicable to this case because it involved a completely different test and a completely different circumstance. [00:26:04] Speaker 06: I would also point out to the court, the other case that Tampa Bay has referenced is National Association of Manufacturers versus SEC, which was the DC Circuit case that was decided this past year. [00:26:14] Speaker 06: That case involved a compelled speech circumstance, which we would certainly argue does not apply here because nothing in this statute actually required any specific speech on behalf [00:26:26] Speaker 06: of the petitioners. [00:26:27] Speaker 01: And more importantly, I would... But it did require very specific speech if they wanted to participate. [00:26:37] Speaker 06: It rewarded very specific speech. [00:26:39] Speaker 06: That's very different than compelling it, saying you have to make this speech. [00:26:43] Speaker 06: And the facts on that case were that it involved, I believe, jewelers saying you have to represent the country of origin, you have to represent that this is conflict-free in order to sell it. [00:26:54] Speaker 06: That's a very different circumstance than this when we're saying, [00:26:56] Speaker 06: As the SKF court expressly noted, you're free to go out and say whatever you want, especially outside the context of this proceeding. [00:27:05] Speaker 06: You can say you oppose the government's enforcement efforts of the trade laws. [00:27:10] Speaker 06: Generally, specifically with regard to this, you're just not going to get rewarded. [00:27:14] Speaker 06: And the reward construction was what was adopted by this court in SKF. [00:27:17] Speaker 06: And I would just like to also emphasize there was another case by the DC circuit called American Meat Institute versus Department of Agriculture. [00:27:25] Speaker 06: which was 760 F3rd 18. [00:27:27] Speaker 06: That case was an on-box rehearing of both the National Association of Manufacturers case and several others. [00:27:35] Speaker 06: And the way I read that case, they actually vacated and overruled the First Amendment portions of the National Association of Manufacturers case. [00:27:42] Speaker 02: So I... Can I just follow up on your waiver point though? [00:27:44] Speaker 02: If it is the case, and I think it may be in this circumstance, that they didn't raise it in blue, [00:27:51] Speaker 02: The law was Ashley Furniture and so forth. [00:27:54] Speaker 02: And then in gray, they do raise the argument, and they piggyback it on the Supreme Court's recent decision in McCulloch. [00:28:02] Speaker 02: So if in fact there is an intervening Supreme Court decision that resurrects the notion that there's a First Amendment claim here, is it really off base for them to have included this argument in gray? [00:28:14] Speaker 06: Well, we would argue it is, Your Honor, because it goes to their First Amendment claim, which was dismissed by the court, and they never [00:28:20] Speaker 06: They didn't raise it here. [00:28:22] Speaker 06: We would argue that what's on appeal before this court is a purely statutory argument. [00:28:26] Speaker 06: And therefore, the First Amendment, since they haven't properly raised it before this court, is not relevant. [00:28:31] Speaker 06: But again, whether the court needs to get to it or not, I don't think there's any substance to it because the McCullen versus Coakley case is so vastly distinguishable. [00:28:42] Speaker 03: You mentioned a moment ago that they had not asserted in their complaint that they supported the petition, but they do in count five. [00:28:51] Speaker 03: They say plaintiffs argue that they supported the petition, right? [00:28:57] Speaker 06: Yes, and I may have misspoked. [00:29:00] Speaker 06: They make this allegation that they have somehow supported the petition essentially by submitting a questionnaire, but they never specifically say, we affirmatively stated that we support the petition. [00:29:12] Speaker 03: Well, okay. [00:29:13] Speaker 03: But then if they do say that they support a petition, that raises the question of what is necessary to constitute support. [00:29:21] Speaker 03: And my next question is, have you viewed the questionnaires, by the way? [00:29:26] Speaker 03: Have you seen them? [00:29:27] Speaker 06: I have seen them not in this case, but I've seen questionnaires in other cases. [00:29:31] Speaker 03: You haven't seen the questionnaires in this case? [00:29:33] Speaker 03: As far as you're concerned, you have no idea what they say. [00:29:36] Speaker 03: They could, for that matter, singleton, I guess, could have checked the box that says support. [00:29:43] Speaker 03: I have not seen the questionnaires in this case. [00:29:53] Speaker 03: I guess I've seen some of these questionnaires, but I haven't seen a whole raft of them. [00:29:58] Speaker 03: Is there room in the questionnaires for statements that would be interpretable as indicating support for a petition? [00:30:10] Speaker 03: Not as a matter of logic, Your Honor. [00:30:13] Speaker 03: calling for purely factual information? [00:30:15] Speaker 06: Essentially, yes, Your Honor. [00:30:17] Speaker 06: This is the one single question in these questionnaires that's targeted to whether or not they support the petition. [00:30:22] Speaker 06: Essentially, most of the rest of the petition is more or less a data dump asking them for what, give us your data about sales, damages, harm, things like that. [00:30:32] Speaker 06: And it's asking for a lot of information in that. [00:30:34] Speaker 06: But this, I can't say that somebody couldn't shoot, try to shoot for our statement in, [00:30:38] Speaker 06: the only logical place would be in response to this specific question, because this is the only question that's specifically targeted to this issue of getting at whether or not a petitioner supports, excuse me, not a petitioner, of whether or not a producer supports a petition. [00:30:53] Speaker 06: And I would also note that this, even as far back as SKF, this court on page 1357 of SKF says, the support requirements in the Byrd Amendment [00:31:07] Speaker 06: reflects the ITC's practice of asking questionnaire recipients to advise the ITC whether they support, oppose, or take no position on an anti-dumping petition. [00:31:17] Speaker 06: This support question is part of the ITC's material injury investigation. [00:31:22] Speaker 06: So even this isn't some recent thing that this court just came up with in Ashley Furniture to try to tie this support requirement to this specific question. [00:31:30] Speaker 06: As far back as SKF, this court was specifically talking about [00:31:34] Speaker 06: that specific question. [00:31:36] Speaker 06: We'd also note that when this statute was enacted, the ITC had 60 days to look at the hundreds of then pending anti-dumping orders and make determinations as to each and every one of them, all the producers, as to who was the supporter. [00:31:51] Speaker 06: It simply would have been unreasonable for Congress to expect the ITC to look through the hundreds of thousands of pages and try to somehow define what the true feelings of all these [00:32:00] Speaker 06: these producers were in response to the relevant petitions when they had the specific question asking them whether or not they support the petition. [00:32:09] Speaker 02: Why don't we hear from Mr. Gallagher? [00:32:10] Speaker 06: Thank you, Your Honor. [00:32:23] Speaker 04: Good afternoon, Your Honor. [00:32:24] Speaker 04: Patrick Gallagher on behalf of the International Trade Commission. [00:32:27] Speaker 04: Have you looked at the [00:32:28] Speaker 04: material since the materials are in the possession. [00:32:31] Speaker 04: I am a great person, Your Honor, to ask that question. [00:32:33] Speaker 04: I finally got to be the guy from the Commission who got the Commission question. [00:32:38] Speaker 04: You looked at the materials? [00:32:40] Speaker 04: Yes, sir. [00:32:41] Speaker 04: And if I could explain the business about it's on the record, it's not on the record first. [00:32:47] Speaker 04: And that is when we filed our administrative record, what we normally do, and this isn't just true for Barrett, this is true for trade cases in general, we file what's at the Joint Appendix at 004 to 008. [00:32:59] Speaker 04: It's a letter that says, here is our record. [00:33:02] Speaker 04: It's an index and a certification. [00:33:04] Speaker 04: The index will have a description of the document tabulated to it. [00:33:14] Speaker 04: This is the one from this record. [00:33:15] Speaker 04: Looks just like this. [00:33:17] Speaker 04: In this corner here, there are numbers. [00:33:20] Speaker 04: They're from our electronic data imaging system. [00:33:23] Speaker 04: It's how we always file the records. [00:33:25] Speaker 04: They're public. [00:33:27] Speaker 04: In this case, they're public. [00:33:29] Speaker 04: These are the two questionnaire responses for Tampa Bay have been on the record since 2008 when we filed it. [00:33:37] Speaker 04: If you call up, you can go do it right now. [00:33:40] Speaker 04: You can call up that number. [00:33:42] Speaker 04: You'll see the Tampa Bay questionnaire response. [00:33:45] Speaker 04: Now it is true that we inadvertently overlook putting the Singleton questionnaire responses on the record for this case. [00:33:53] Speaker 04: Have we gone to briefing? [00:33:54] Speaker 04: We would have noticed that and it would have been correct. [00:33:57] Speaker 04: Do you mean the whole questionnaire response? [00:34:00] Speaker 03: No, sir. [00:34:00] Speaker 04: No, no. [00:34:01] Speaker 04: Just the... Yes, the relevant... What we call the relevant page is because, as Mr. Tomlinson correctly conveyed to you, we look at the questionnaire, but the questionnaire is essentially almost entirely questions about how you do business, what do you think about the imports, are you affected by them, things like that. [00:34:19] Speaker 04: What do you think about the imports? [00:34:21] Speaker 04: Certainly. [00:34:22] Speaker 03: Are you affected by them? [00:34:23] Speaker 03: Those questions are in the questionnaire? [00:34:24] Speaker 04: Those types of questions [00:34:25] Speaker 04: are answered in the questionnaire. [00:34:28] Speaker 04: But those types of questions go to the injury determination, not to whether you think it's a good idea to have duties or not, which is the precision support question. [00:34:36] Speaker 02: What about the Singleton thing? [00:34:39] Speaker 04: I have Singleton. [00:34:40] Speaker 04: The problem with Singleton is that it's still business proprietary until Singleton waives the business proprietary status. [00:34:48] Speaker 04: So I can't tell you what it is, I have to. [00:34:49] Speaker 03: You can't tell us whether the box was checked or not? [00:34:52] Speaker 03: Right, that's business surprise. [00:34:53] Speaker 03: I bet that they're going to waive objection to having to disclose. [00:34:56] Speaker 04: Then I would share that with you, your honor. [00:34:59] Speaker 04: I would be happy to share that with you if they would waive. [00:35:01] Speaker 03: Why don't we find out whether they're willing to waive with respect to the box and to the singles? [00:35:05] Speaker 05: We'll certainly waive in the court below when we get the look at the box. [00:35:08] Speaker 03: Well, how about now so we'll know what's in the box and solve our problem? [00:35:14] Speaker 05: We'll waive. [00:35:14] Speaker 05: We'll waive. [00:35:15] Speaker 03: Waive, all right. [00:35:15] Speaker 03: Which did they check? [00:35:17] Speaker 04: are you waiving? [00:35:18] Speaker 04: Preliminary and final? [00:35:20] Speaker 04: Thank you. [00:35:21] Speaker 04: Take no position. [00:35:23] Speaker 04: OK. [00:35:24] Speaker 04: So they are identically situated to Ashley and Ethan Allen in the prior case. [00:35:31] Speaker 04: Opposition, just like Ashley. [00:35:32] Speaker 04: Take no position, just like Ethan Allen. [00:35:38] Speaker 04: There is one other thing. [00:35:39] Speaker 04: I don't want to belabor all the points that Mr. Tomlinson's already done such a good job on. [00:35:46] Speaker 04: And it feels a little bit like deja vu when we did Ashley and Houston Allen. [00:35:50] Speaker 04: But Judge, you quoted that when we hold section, if you go to the next page in the same opinion, where the court sums up its decision, it lists. [00:36:05] Speaker 04: It also, the elements that it considered were essential for that particular case. [00:36:10] Speaker 04: And that was driven because you had the unusual circumstance of the prelim being different from the final. [00:36:16] Speaker 04: that one of the elements that the court found were important was that it did indeed express support in the preliminary questionnaire response. [00:36:28] Speaker 04: That was one of the elements in Shea Sydney. [00:36:30] Speaker 04: So the requirement under the statute that there be an expression of support for a petition has held since SKF. [00:36:40] Speaker 04: Shea Sydney is no different. [00:36:41] Speaker 04: The facts were a little quirky, so you had a little more analysis. [00:36:46] Speaker 04: the requirement that there be an expression of support in the petition wasn't changed by anything. [00:36:54] Speaker 04: And Shay said it was just the unique facts of that case. [00:36:57] Speaker 04: And of course, Ashley and Ethan Allen in this court held that the requirement for the expression of support was in the statute and it was what STF saved in its saving construction. [00:37:10] Speaker 03: What do you say about the $22,000 that [00:37:15] Speaker 03: was advanced to the petitioner on behalf of the parties in this case to support the attorney's fees for the petition? [00:37:28] Speaker 04: There's two things to that, your honor. [00:37:30] Speaker 04: One is there's no way the commission can know those sorts of things. [00:37:34] Speaker 04: The statute doesn't contemplate anything outside the records from the original investigations. [00:37:39] Speaker 04: It even directs the commission to go to commerce rather than conduct some sort of [00:37:45] Speaker 04: investigation on its own about what may or may not be the motives of domestic producers. [00:37:52] Speaker 04: We agree with the court below where it said, even if all this is true, which we have to assume under the 12b, that they did some pre-petition activities when the question was asked of them directly during the proceeding, their response was, we oppose or we take no position. [00:38:13] Speaker 04: So whatever their motivations were for providing pre-petition support, on the record, that's not what they stated. [00:38:22] Speaker 04: And so that would be a rational basis for making a decision that you're not a petition supporter. [00:38:27] Speaker 04: We asked you the question, you said no. [00:38:29] Speaker 04: It would make more sense if they gave $22,000 and then they came in and said yes. [00:38:34] Speaker 04: Why they changed their minds, we don't know. [00:38:37] Speaker 04: And that's assuming that it's all correct. [00:38:39] Speaker 04: All those facts are substantiated. [00:38:43] Speaker 03: I take it Count 5 applied with respect to all of the countries except India. [00:38:52] Speaker 04: Is that right? [00:38:55] Speaker 03: Count 5 said that the $22,000 was indicated support for all of the various countries, China, Vietnam, Ecuador, but not India. [00:39:05] Speaker 03: So perhaps that's an explanation for why there's a difference between the support for some of the countries, [00:39:11] Speaker 03: non-support for the entire audit? [00:39:15] Speaker 04: It could be, but it's still a question, why would you provide financial support to a petitioner? [00:39:25] Speaker 04: And then when, and they go to all the trouble to do it and file papers and collect all the data, and then when you're asked a question by the commission, where you can have an effect on the investigation itself, you take a position that is contrary to [00:39:41] Speaker 04: your provision of the financial support in the beginning. [00:39:47] Speaker 04: I was just going to say, it just seems contrary to say, well, I'm going to give you money to file this position, and I'm going to torpedo you as soon as it goes official. [00:39:56] Speaker 01: But maybe that's the point, torpedo you. [00:40:01] Speaker 01: So you're saying that the mere expression, the mere opposition, expression of opposition, without any active opposition, it constitutes torpedoing? [00:40:13] Speaker 04: A single producer can't usually, unless it's extraordinarily large, could not torpedo the investigation. [00:40:22] Speaker 04: No, but they're taking actions that are detrimental to the imposition of duties, which is the whole purpose. [00:40:27] Speaker 01: By merely expressing an opinion. [00:40:30] Speaker 04: By stating that they do not support the petition, either by saying we oppose or by saying we take no position. [00:40:37] Speaker 04: The Commission considers that as part of its [00:40:39] Speaker 04: determination in the investigation and it really becomes an issue if you've got related parties or something. [00:40:44] Speaker 01: So with the abstract expression of speech, take the one that says we take no position, but yet we're providing all this information, we're providing all this data, you think that that's actively torpedoing the investigation? [00:40:56] Speaker 04: No, no, no. [00:40:57] Speaker 04: I said that to juxtapose the obvious and obvious effort to support the petition in the beginning. [00:41:06] Speaker 04: I provided you monies to enable you to file this petition, but then when I was asked by the Commission, what do you think of this? [00:41:15] Speaker 04: He said, I'm not really that interested in that. [00:41:18] Speaker 04: That can have an effect in the investigation that could ultimately lead to no duties. [00:41:23] Speaker 03: Now the Commission, I'm not sure I have the exact numbers right, the Commission, I take it, cannot institute [00:41:30] Speaker 03: the proceeding if there's less than 25% support from the domestic industry, is that right? [00:41:37] Speaker 03: I know there's a 50% requirement for quantity, but the 25% is for the various domestic producers, is that right? [00:41:48] Speaker 04: The problem, it's not the commission that conducts that inquiry. [00:41:54] Speaker 04: When a petition is filed, it's filed with the commission and it's also filed simultaneously with commerce. [00:42:00] Speaker 03: So commerce does that and ITA does that, right? [00:42:03] Speaker 03: Yes. [00:42:03] Speaker 03: All right. [00:42:04] Speaker 03: So they make a determination, but are they making that determination based on the box checked? [00:42:12] Speaker 03: No. [00:42:14] Speaker 04: All right. [00:42:15] Speaker 04: We're just sending out our questionnaires then. [00:42:17] Speaker 03: So they haven't gotten the questionnaires. [00:42:19] Speaker 03: How do they make a determination as to whether 25% of the domestic industry is in support? [00:42:24] Speaker 04: They're supposed to do it on the face of the petition. [00:42:28] Speaker 04: There should be an allegation from the petitioner. [00:42:30] Speaker 04: I represent X amount of production. [00:42:32] Speaker 04: These parties support me. [00:42:35] Speaker 04: Commerce will check up on that. [00:42:36] Speaker 04: If there's at least 25, then they start going forward from there. [00:42:39] Speaker 03: So if the number is not overwhelmingly more than 25, if it's close, [00:42:45] Speaker 03: they will actually go out and talk to these people? [00:42:49] Speaker 04: Yes. [00:42:50] Speaker 04: You have to have 25% on its face. [00:42:53] Speaker 04: Otherwise, Congress just rejects it outright. [00:42:56] Speaker 04: If you have 25% on its face, but less than 50% of the parties who respond to Congress's polling, and I think we went through this last time, Your Honor, if you get more than the 50% threshold, then they'll initiate. [00:43:10] Speaker 04: We send the questionnaire. [00:43:11] Speaker 04: They have to do it 20 days. [00:43:13] Speaker 04: We get our questionnaire back on day 35-ish, the preliminary. [00:43:17] Speaker 04: So we're getting our questionnaire response with this question about petition support from us after, much after Commerce has already done all its business. [00:43:30] Speaker 03: But Commerce is the one that makes the yay, go or no go decision as to whether this initiation is going to go forward. [00:43:38] Speaker 03: So why does it matter? [00:43:40] Speaker 03: Why is it material to the investigation for you to know whether there's support or not support since the support and not support decision has already been passed on by Congress? [00:43:49] Speaker 04: It's an element in the material injury determination to consider whether the industry itself feels agreed. [00:44:02] Speaker 03: One final question. [00:44:03] Speaker 03: Am I right in my understanding that the [00:44:11] Speaker 03: Questionnaire is not simply an invitation, but it's a directive with legally enforceable consequences if the party... There's language on the face of the questionnaire to suggest that, you know, please... But that wouldn't do it unless there's language in a statute that does it. [00:44:25] Speaker 04: The irony is that in my experience, and it's not necessarily universal, but in my experience, they're pretty good about coming back with a response... Well, what I'm really looking for is, is there a legally compelled [00:44:38] Speaker 03: compelable obligation to respond to the question. [00:44:43] Speaker 03: And you can enforce that if you can go to court and enforce that if a party resists. [00:44:49] Speaker 03: Yes. [00:44:50] Speaker 04: It doesn't happen very often for all the reasons that Mr. Oregon was saying. [00:44:54] Speaker 04: It's a long, complicated process. [00:44:58] Speaker 00: Thank you, Your Honor. [00:45:02] Speaker 02: Okay. [00:45:03] Speaker 02: In order to try to keep the time [00:45:05] Speaker 02: sort of even. [00:45:06] Speaker 02: Why don't we give you seven minutes if you need it. [00:45:11] Speaker 05: Thank you. [00:45:11] Speaker 05: I'm not sure I'll need all that. [00:45:14] Speaker 05: First of all, I appreciate Mr. Bratt's explanation of the commencement process. [00:45:20] Speaker 05: And what you need to take from that is that these questionnaire responses, these ITC questionnaire responses are entirely irrelevant to the commencement of an investigation. [00:45:28] Speaker 05: They come much later. [00:45:29] Speaker 05: and the Commerce Department never sees them, so they're irrelevant. [00:45:35] Speaker 05: I, in fact, have helped prepare many ITC questionnaire responses. [00:45:39] Speaker 05: There's plenty of room for argument. [00:45:45] Speaker 05: So it's not limited to the box. [00:45:47] Speaker 05: And it's not a fill in a blank questionnaire. [00:45:50] Speaker 05: It's not a multiple choice questionnaire. [00:45:52] Speaker 05: There are lots of narrative questions or questions that ask for a narrative response. [00:45:57] Speaker 05: And you can put in lots of stuff in there, including your opinions about all sorts of things. [00:46:03] Speaker 01: But I think most interesting... What is your response to the government's argument that though McCullen did come out after your [00:46:14] Speaker 01: initial brief was filed, you had a First Amendment challenge, an ad-applied First Amendment challenge that you didn't appeal. [00:46:21] Speaker 05: Well, I don't think that's true. [00:46:22] Speaker 05: If you look at page 37 of our brief, our opening brief, which was filed two and a half years ago, I think, if you just read the heading, Tampa Bay's viewpoint by allegedly failing to check the support box. [00:46:33] Speaker 05: does not disqualify from eligibility. [00:46:36] Speaker 05: It seems to me that's an as-applied argument that involves the First Amendment. [00:46:40] Speaker 05: That's in our opening brief. [00:46:42] Speaker 05: We're certainly explicit on that. [00:46:43] Speaker 05: What page were you referring to? [00:46:46] Speaker 05: Page 32. [00:46:46] Speaker 05: Just read the heading from segment three. [00:46:49] Speaker 05: You can see we raised the viewpoint issue at that point in our brief, our opening brief in this court, which was filed in July of 2012. [00:47:02] Speaker 05: So more than two and a half years ago. [00:47:05] Speaker 05: And there was a lot of subsequent judicial decisions between then and between the time we filed our reply brief. [00:47:16] Speaker 05: So certainly the arguments were refined since then. [00:47:19] Speaker 02: Well, it says, I mean, in this analysis, it says, I mean, so far I'm not seeing any reference to anything other than page 33, for instance. [00:47:30] Speaker 02: By basing its eligibility on the viewpoint of 12 law, they acted inconsistently with the plain language and the purpose of the statute. [00:47:38] Speaker 05: Well, I think that sufficiently raises the question of whether you can rely on an opinion to make a determination. [00:47:44] Speaker 01: Was there a reference to the First Amendment in here? [00:47:46] Speaker 01: I don't see it. [00:47:47] Speaker 05: I was looking carefully. [00:47:48] Speaker 05: I didn't see it either. [00:47:53] Speaker 01: Also, what's your response to the government's argument that [00:47:57] Speaker 01: The complaint itself just simply fails to allege support. [00:48:04] Speaker 05: Well, it alleged in Count 5, it alleged that we supported through questionnaire response, and that's what the statute requires. [00:48:10] Speaker 05: So we allege that we satisfy the statutory conditions. [00:48:13] Speaker 05: We didn't allege that we checked a particular box one way or the other. [00:48:17] Speaker 05: But that's not in the statute. [00:48:19] Speaker 05: It says you can express your support through petition or questionnaire response or letter of questionnaire response. [00:48:26] Speaker 05: We said we support it through questionnaire response. [00:48:29] Speaker 05: That's a sufficient allegation to raise that issue. [00:48:33] Speaker 05: That's what the statute says. [00:48:34] Speaker 05: What they're saying is we didn't check a box. [00:48:36] Speaker 05: We didn't mention a specific box or what we put in the box. [00:48:41] Speaker 05: And that's why our complaint is insufficient. [00:48:43] Speaker 05: And I don't think any court would approve that. [00:48:46] Speaker 05: Fairly odd, not this one. [00:48:48] Speaker 03: Actually, Count 5, though, was limited, as I read it, to the $22,000 and associated documentation. [00:48:56] Speaker 03: I mean, it was not focused on the questionnaire response. [00:49:02] Speaker 03: And it was limited by country to a subset of all the countries. [00:49:07] Speaker 05: Right. [00:49:07] Speaker 05: I'm not sure why it was limited by subset. [00:49:09] Speaker 03: I'm going to guess it was an issue within the country. [00:49:13] Speaker 05: So maybe they were importing from India. [00:49:17] Speaker 05: But in any event, I think it's broad enough that we should be allowed to go forward with our case and see what the record holds. [00:49:24] Speaker 05: And that the complaints are supposed to be read that way. [00:49:26] Speaker 05: We've certainly cited the statutory requirements. [00:49:30] Speaker 05: We've indicated, we've pledged that we've filed questionnaire responses. [00:49:32] Speaker 05: The record, the limited record we have shows that. [00:49:35] Speaker 05: So I think certainly there could be evidence in the record to support a finding. [00:49:39] Speaker 05: we supported, we expressed our support in the in the questionnaire responses or by filing questionnaire responses maybe. [00:49:48] Speaker 05: That's a different legal analysis, legal question, but you've got to have the full record and that's clearly different in this case. [00:49:54] Speaker 05: I think in Chase Sydney said we've now given you three factual scenarios to allow the court below to resolve these issues, but they require the facts. [00:50:03] Speaker 05: We don't have all the facts. [00:50:04] Speaker 05: All we have is the box. [00:50:06] Speaker 05: So we've got to get the whole record before some court in order to make that decision. [00:50:10] Speaker 05: But I think what you, probably the most important thing that was said by the government was when Mr. Tomlinson said, look, we had hundreds of questions, we had hundreds of decisions to make in six months. [00:50:24] Speaker 05: So we used the box. [00:50:26] Speaker 05: So they did because it was the expedient thing to do. [00:50:30] Speaker 05: So they sacrificed speech for convenience. [00:50:33] Speaker 05: That's what the Supreme Court says you cannot do. [00:50:36] Speaker 05: And it's what he said they did. [00:50:38] Speaker 05: That's why this case, what they did to our client, violates the First Amendment. [00:50:44] Speaker 02: Unless the owners have any additional questions.