[00:00:02] Speaker 02:
We have four cases on the calendar this morning, one from the Court of International Trade, two from the Patent Office, and one from the Court of Federal Claims that is being submitted on the briefs and will not be argued.

[00:00:17] Speaker 02:
After we hear the first case, the panel will adjourn for five to 10 minutes and then return with an equally distinguished panel.

[00:00:30] Speaker 02:
Our first case is Capella Sales and Services versus the United States.

[00:00:35] Speaker 02:
2016 2647 2017 1196.

[00:00:46] Speaker 02:
Ms.

[00:00:47] Speaker 02:
Chen.

[00:00:48] Speaker 04:
Yes, good morning, Your Honors.

[00:00:50] Speaker 04:
May it please the Court.

[00:00:52] Speaker 04:
The Trade Court wrongly dismissed Capella's complaints on Rule 12b6 grounds.

[00:00:58] Speaker 04:
This case

[00:00:59] Speaker 04:
presents exceptionally unique circumstances not anticipated by Congress at the time that it promulgated the statute.

[00:01:06] Speaker 02:
Isn't the solution to that going back to Congress?

[00:01:10] Speaker 02:
I mean, we have to read the statute that Congress enacts.

[00:01:13] Speaker 04:
Well, what Congress enacted at the time in 1979 does not address the precise question and circumstances that issue today in 2017.

[00:01:25] Speaker 04:
And that's precisely why

[00:01:28] Speaker 04:
Capella's raised the issue of an ambiguity in the statute.

[00:01:32] Speaker 04:
But the issue for the court today is whether Capella's raised a plausible legal theory to survive a Rule 12b6 motion to dismiss.

[00:01:42] Speaker 04:
The task of this court is not to evaluate the strengths of our arguments versus Congress's arguments.

[00:01:47] Speaker 04:
As long as Capella has raised that plausible legal theory,

[00:01:51] Speaker 04:
that there is an ambiguity in the statute, then the court must remand this case back to the trade court.

[00:01:56] Speaker 03:
Well, it's not enough to just allege that there's an ambiguity in the statute, right?

[00:02:00] Speaker 03:
We have to agree that there's an ambiguity in the statute that needs to be resolved.

[00:02:04] Speaker 04:
That's correct, Your Honor.

[00:02:05] Speaker 04:
And there is an ambiguity in the statute, specifically 19 U.S.C., 15, 16 A, and C. I will explain why.

[00:02:13] Speaker 04:
The term entries in those provisions is ambiguous.

[00:02:17] Speaker 04:
The statute does not define whether all

[00:02:20] Speaker 04:
or a subset of all, entries prior to the issuance of the Timken notice must be liquidated according to the original determination.

[00:02:28] Speaker 04:
Now, because of this ambiguity, commerce must, under Chevron, interpret statute reasonably and make exceptions in extreme cases such as here.

[00:02:37] Speaker 04:
In section 1516 AC1.

[00:02:40] Speaker 03:
I don't really understand your comment that Congress didn't say whether it's all entries or not.

[00:02:50] Speaker 03:
separated the classifications of entries, how could it be anything less than all?

[00:02:55] Speaker 04:
Well, Your Honor, the reason it's anything less than all is because in the legislative history, the Congress made clear that in the Senate report I'm referring to specifically, for all entries in Section 1516AE1, it refers to all entries after the publication of the Timken notice shall be liquidated in accordance with the court's decision.

[00:03:20] Speaker 04:
However, prior to the publication of the Timken notice, the word entries in section 1516 AC1 is not defined as all entries.

[00:03:32] Speaker 04:
The Senate report refers to all entries only for those entries after the Timken notice.

[00:03:38] Speaker 04:
So Congress clearly knew how to use the word all.

[00:03:42] Speaker 04:
And they also discussed the usual case versus extraordinary circumstances.

[00:03:50] Speaker 04:
In the usual case, there may be entries that are enjoined prior to the publication of the Temkin Notice.

[00:04:02] Speaker 04:
And that's one subset of entries that are carved out of the entries listed in 1516 AC1.

[00:04:10] Speaker 04:
But there may be other subsets.

[00:04:12] Speaker 02:
We'd like this to be read as if it said, whatever

[00:04:16] Speaker 02:
Whichever entries were entered in only such entries.

[00:04:26] Speaker 02:
That's correct, Your Honor.

[00:04:27] Speaker 02:
That's really reading language into the statute.

[00:04:30] Speaker 04:
Yes, Your Honor.

[00:04:32] Speaker 04:
In C1, if it says all entries or only entries of merchandise of the character, et cetera, that would make it very clear that that covers the waterfront of entries.

[00:04:44] Speaker 01:
I guess you want us to add the word typically, like entries of merchandise covered by the determination typically shall be liquidated in accordance with the determination.

[00:04:57] Speaker 01:
And the word typically isn't in the statute.

[00:05:01] Speaker 01:
You want us to read the word typically from the usage of that adverb in the legislative history, but the legislative history doesn't give us any suggestion of

[00:05:14] Speaker 01:
why we should deviate from what I think looks like the plain language of the statute.

[00:05:21] Speaker 04:
Well, Your Honor, I would disagree with that.

[00:05:23] Speaker 04:
The legislative history actually refers to that typical case, meaning in the usual case.

[00:05:30] Speaker 03:
We're supposed to take legislative history and then assume that we should use that to put words into the statute that aren't there?

[00:05:38] Speaker 04:
Well, the court may rely on the legislative history for guidance.

[00:05:43] Speaker 04:
reviewing the statutory language.

[00:05:45] Speaker 04:
So it's not just enough to review the statutory language in a vacuum.

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The court has to review it in the context and the purpose of the law.

[00:05:52] Speaker 03:
Isn't the atypical circumstance or the extraordinary circumstance the kind that fall under the category of those entries that could be enjoined?

[00:06:00] Speaker 04:
That is one circumstance.

[00:06:02] Speaker 03:
But you never asked the entries to be enjoined, correct?

[00:06:06] Speaker 03:
COMPELA did not ask for the entries to be enjoined.

[00:06:09] Speaker 03:
However,

[00:06:11] Speaker 03:
And nothing came in after the Timken notice, right?

[00:06:15] Speaker 03:
I'm sorry, Your Honor.

[00:06:16] Speaker 03:
So assuming we have three categories of entries, one that comes in with no request for an injunction that comes in before the Timken notice, the next is those that are enjoined, and then the third is those that come in after the Timken notice.

[00:06:29] Speaker 03:
So you don't dispute that you're only in that first category, correct?

[00:06:34] Speaker 04:
We don't dispute that Capella is in the category of entries that were entered prior to the Timken notice being published and not enjoined.

[00:06:45] Speaker 04:
However, this statutory structure is ambiguous in that Congress did not address these circumstances at the time it promulgated the statute in 1979.

[00:06:59] Speaker 04:
As we explained in our brief, in 1979, the highest CBD rates were about 40%.

[00:07:04] Speaker 02:
Now, there was a high rate here.

[00:07:07] Speaker 02:
Your client did not join the McLean Fogg litigation, did it?

[00:07:11] Speaker 04:
No, it did not.

[00:07:13] Speaker 02:
So the fault seems to be more with your client's inactivity rather than with Congress.

[00:07:19] Speaker 04:
Your Honor, the fact that Capella did not join the McLean Fogg litigation or any administrative review

[00:07:29] Speaker 04:
That's not required under the statute.

[00:07:32] Speaker 04:
This actually should have led commerce to interpret the statute differently in these circumstances.

[00:07:37] Speaker 01:
Because now we have, or I have, is that there was an opportunity for a judicial review or administrative review.

[00:07:45] Speaker 01:
And so there were remedies available to Capella.

[00:07:50] Speaker 01:
It didn't exercise them.

[00:07:52] Speaker 01:
And so it starts to look a lot like a classic waiver issue, where the party waived

[00:07:59] Speaker 01:
its opportunities to resolve the issue or contest the issue.

[00:08:04] Speaker 01:
And so if I read the plain language in this very plain way that it says there's different categories of when these entries are made and then if you don't have your entries or your merchandise enjoined from liquidation,

[00:08:29] Speaker 01:
or you don't come in, or those entries aren't made after the Timken notice, you're kind of stuck with whatever the determination order was.

[00:08:38] Speaker 04:
Well, Your Honor, the court doesn't have to agree with Capella's arguments about the statute or why there's ambiguity.

[00:08:48] Speaker 04:
It only has to find there's a plausible legal theory that Capella has alleged.

[00:08:53] Speaker 04:
The court dismissed this case preliminarily, before it even got to the merits.

[00:08:58] Speaker 04:
And we could spend a lot of time discussing all of the merits of Capella's case, but that's really for the trade court to address.

[00:09:06] Speaker 04:
As long as Capella's made that plausible legal argument, that clears the hurdle of a 12b6 motion.

[00:09:14] Speaker 04:
And it should be heard on the merits at the court.

[00:09:17] Speaker 04:
And as far as whether there was suspension of liquidation or participation in the court case, this is not the usual circumstance.

[00:09:27] Speaker 03:
Can you say it's not the usual circumstance?

[00:09:31] Speaker 03:
Congress did contemplate the three circumstances at issue, one of which is you're just stuck with whatever commerce decided unless and until this court or the CIT says that what they decided was wrong.

[00:09:46] Speaker 04:
Yes, this is what Congress contemplated in 1979, but that was when rates

[00:09:52] Speaker 04:
The CBD, all other trades.

[00:09:53] Speaker 03:
There's lots of things that change over time, and that doesn't mean the court's allowed to rewrite the statute.

[00:10:00] Speaker 04:
No, Your Honor, the court would not rewrite the statute.

[00:10:04] Speaker 04:
However, if Congress hasn't spoken to this set of circumstances, which is what Capella has alleged its complaint, then there is that ambiguity in the statute, and the case should be decided on the merits.

[00:10:19] Speaker 04:
As we explained in our brief,

[00:10:21] Speaker 04:
From 1979 until now, Commerce's all-others rates for countervailing duty cases have risen from 42%, a high 42%, all the way to as high as 600%.

[00:10:33] Speaker 04:
So if the court says there's no ambiguity at all, the language is plain, then Commerce can find an all-others rate of 10,000%, 20,000%.

[00:10:43] Speaker 04:
And we're talking about a CBD all-others rate that applies to all exporters and producers

[00:10:50] Speaker 04:
that do not participate, that are not selected as mandatory respondents, in an investigation.

[00:10:56] Speaker 04:
This is not behavior by a respondent where they fail to cooperate, fail to answer questionnaires.

[00:11:03] Speaker 04:
Many of them, they don't even know that such an investigation has gone on.

[00:11:06] Speaker 03:
But that was true at the time that Congress passed the statute.

[00:11:10] Speaker 04:
That's right, but that was rates at 40%.

[00:11:14] Speaker 04:
So essentially... Well, how do we know?

[00:11:18] Speaker 03:
How do we know that back then 40% wasn't as arguably punitive as 300% right now?

[00:11:25] Speaker 04:
Well, Your Honor, that's for the trade court to decide.

[00:11:28] Speaker 04:
It's our position that 366% is punitive and is unjust enrichment at compelance expense.

[00:11:36] Speaker 04:
But as far as the merits of what the line is between what's punitive.

[00:11:39] Speaker 03:
Isn't that the argument that was made in the McLean Fog Case?

[00:11:42] Speaker 03:
I mean, why didn't you participate then?

[00:11:45] Speaker 04:
Well, the McLean Fog Case,

[00:11:48] Speaker 04:
related to a 17-year methodology of calculating an all-others rate that was repudiated by this court.

[00:11:57] Speaker 04:
But that's not directly what's at issue here.

[00:12:01] Speaker 04:
The issue here is Capella's arguing the effective date, how far back it should be applied retroactively.

[00:12:13] Speaker 04:
Because when Commerce issued the remands

[00:12:18] Speaker 04:
and reset the rate to 7% from 374%, they set the rate back 10 days.

[00:12:24] Speaker 04:
They said all entries that enter after this date, which is 10 days prior to their publication date, those entries will be subject to the new rate.

[00:12:34] Speaker 04:
Capella's argument is that rate should be retroactively applied back to the preliminary determination in the original investigation.

[00:12:44] Speaker 04:
That is Capella's argument.

[00:12:45] Speaker 02:
Ms.

[00:12:46] Speaker 02:
Chen, you're into your rebuttal time.

[00:12:47] Speaker 02:
You can continue to use it or save it.

[00:12:51] Speaker 04:
Well, Your Honor, I'd just like to sum up.

[00:12:55] Speaker 04:
This case is not about a decision on the merits of Capella's case.

[00:12:59] Speaker 04:
Capella's pled a plausible legal theory.

[00:13:01] Speaker 04:
The statutes carved out one subset of entries, those in joint entries, but there may be others pursuant to the legislative history.

[00:13:09] Speaker 04:
The Senate report generally refers to subsets with reference to one specific subset only

[00:13:14] Speaker 04:
and only refers to all entries for entries after the Timken notice.

[00:13:18] Speaker 04:
Commerce's interpretation flies in the face of accuracy, remedial objectives, and fairness, which is what the purpose of the statute is.

[00:13:26] Speaker 04:
The rate history of the CVD ad valorem rates also supports Capella's claim there's unjust enrichment by commerce at Capella's expense.

[00:13:36] Speaker 04:
And in essence, Congress has not directly spoken to this set of circumstances.

[00:13:41] Speaker 04:
which counts as extraordinary circumstances set forth in the legislative history.

[00:13:46] Speaker 04:
Thank you.

[00:13:47] Speaker 02:
We will save the remainder of your time for rebuttal.

[00:13:51] Speaker 02:
Ms.

[00:13:51] Speaker 02:
Lee.

[00:13:53] Speaker 00:
Good morning, Your Honors.

[00:13:55] Speaker 00:
May it please the court.

[00:13:57] Speaker 00:
As Capella is not entitled to a lower CVD rate, which is established in the McLean Fog litigation, because of two things, Capella did not participate in the McLean Fog action.

[00:14:11] Speaker 00:
challenging the final investigation rate, and Capella did not have its entries enjoined pursuant to that action.

[00:14:16] Speaker 00:
Instead, Capella's entries were made before the rate was revised by that litigation, and Capella should have participated in the two administrative reviews that covered its four entries.

[00:14:27] Speaker 03:
However, you can see that they were not deemed an uncooperative party, correct?

[00:14:35] Speaker 00:
Correct, but that's irrelevant to this particular question, Your Honor, because what they're saying is that the rate should not apply to them.

[00:14:41] Speaker 00:
But the rate itself was calculated by commerce in the normal course, according to standard procedures.

[00:14:48] Speaker 00:
And so that's fine.

[00:14:50] Speaker 00:
But the rate will apply as to all others.

[00:14:52] Speaker 03:
The whole point is that if the rate was punitive, which ultimately it was deemed to be way too high by a lot, so you go from 374 to 7, that why should a party who was not on cooperative not get the benefit of that?

[00:15:10] Speaker 00:
Well, your honor, I see that it's like, it's only hindsight is 2020 type of thing.

[00:15:14] Speaker 00:
It's like, but that rate was legal and reasonable at the time the Capella made its entries and Capella could have.

[00:15:20] Speaker 03:
Well, when you say it was reasonable at the time, I mean, ultimately the court said, no, it wasn't reasonable.

[00:15:26] Speaker 00:
Well, except for, Your Honor, if we get to the statute, the entries are supposed to receive, if there is no request for review under the administrative review process, that automatic liquidation instructions are issued.

[00:15:39] Speaker 00:
And they are liquidated in accordance with the cash deposit rate, which is the 300 and something.

[00:15:44] Speaker 03:
I understand what your argument is as to how the statute works.

[00:15:48] Speaker 03:
But in terms of what the reality is, we're talking about a punitive rate

[00:15:53] Speaker 03:
that ends up getting applied to somebody who was not uncooperative?

[00:15:57] Speaker 00:
Well, Your Honor, it's also somebody who didn't participate at all.

[00:16:00] Speaker 00:
So that's one point.

[00:16:03] Speaker 00:
Because others did not participate in the investigation, did not participate with the McLean Fog action, and the all others rate applies to many importers who did not participate.

[00:16:15] Speaker 00:
That's the way the system works.

[00:16:17] Speaker 02:
Isn't your best point that the statute doesn't talk about reasonable or unreasonable?

[00:16:22] Speaker 02:
And it doesn't say unless it's subsequently reversed?

[00:16:26] Speaker 00:
Your Honor, you're right.

[00:16:27] Speaker 00:
Our best point is that the statute is clear.

[00:16:30] Speaker 00:
It's absolutely clear.

[00:16:31] Speaker 00:
There is no ambiguity.

[00:16:33] Speaker 00:
You're correct.

[00:16:34] Speaker 00:
And you're right to also note that the word unless in the statute, in 1516 AC, it says unless your entries are enjoined.

[00:16:44] Speaker 00:
That carves out an exception right there.

[00:16:46] Speaker 00:
It's like, and we know that their entries are not enjoined.

[00:16:49] Speaker 00:
And in fact, if we look further in the context of 1516A, and we go to subsection E, we also see there's a card out there.

[00:16:57] Speaker 00:
It says, oh, you can apply that rate to entries after the TIMCAN notice, unless those entries are enjoined.

[00:17:04] Speaker 00:
So we have another, we have a consistent and complementary card out there.

[00:17:08] Speaker 00:
And the legislative history that the Palisades, the Senate report says the same thing, because I believe it was,

[00:17:15] Speaker 00:
You, Judge O'Malley, who noticed that the extraordinary circumstance is embedded there and it is called out as enjoined entries.

[00:17:25] Speaker 00:
And we see that in 1516 AC2.

[00:17:28] Speaker 03:
But do you agree that Commerce has discretion to make its new rate retroactive?

[00:17:35] Speaker 00:
It does not have discretion to make its rate retroactive to the point where Capelle is saying.

[00:17:40] Speaker 00:
All the way back to the start of the order,

[00:17:43] Speaker 00:
know your honor because in fact if you if you look at the way the system is the administrative review system we've already had by the time Capella you know comes to court it's like we've already had two administrative reviews and now there are many it's like that sort of system cannot exist if you're constantly altering the rate.

[00:17:59] Speaker 03:
What's your authority for the proposition that the discretion doesn't exist?

[00:18:02] Speaker 03:
Excuse me?

[00:18:03] Speaker 03:
What's your authority for the proposition that Congress doesn't have that discretion?

[00:18:06] Speaker 00:
We have it in in the statute itself 1516 A C and E

[00:18:11] Speaker 00:
because it only says in joint entries.

[00:18:13] Speaker 00:
It doesn't say that you can.

[00:18:14] Speaker 00:
And it tells you before anything that happens before the Timken notice is subject to the determination of commerce that are not in joint.

[00:18:22] Speaker 03:
But commerce made this retroactive to 10 days before the Timken notice.

[00:18:25] Speaker 00:
Well, except for if you look at the statute also, again, looking at the same two provisions.

[00:18:31] Speaker 00:
Commerce is supposed to give notice within 10 days of the court's decision.

[00:18:38] Speaker 00:
It made it retroactive to make sure that it's 10 days right after the court's opinion in both cases, in the McLean Fogg cases.

[00:18:46] Speaker 00:
So that's what the retroactivity is.

[00:18:48] Speaker 00:
It's merely to comport with the statute.

[00:18:50] Speaker 00:
It isn't because they decided that this is an appropriate day, just picking it out of the hat.

[00:18:55] Speaker 00:
That's not it.

[00:18:56] Speaker 00:
In fact, they comport with the statute.

[00:18:58] Speaker 00:
And that's what we have to follow.

[00:18:59] Speaker 00:
We have to follow the plain language of the statute.

[00:19:01] Speaker 00:
And even if there was some ambiguity, Congress is absolutely reasonable in the way that it interpreted it.

[00:19:08] Speaker 00:
It's if you have a decision that occurs years later after entries come in, it should not be applied retroactively unless we have enjoined entries.

[00:19:19] Speaker 00:
It needs to be applied prospectively, which is exactly the way the administration of things can then run.

[00:19:25] Speaker 00:
It preserves the administrative review process that's in place.

[00:19:29] Speaker 02:
Ms.

[00:19:30] Speaker 02:
Chen says that the statute doesn't say all.

[00:19:33] Speaker 02:
Were any of the entries here not preempted notice?

[00:19:40] Speaker 00:
They were all pre-Timpton Notice and not enjoined.

[00:19:43] Speaker 02:
So that argument falls.

[00:19:45] Speaker 00:
Which, I'm sorry, you're on?

[00:19:46] Speaker 02:
The argument that the statute doesn't say all, thereby implying that there were some that were post-Timpton Notice.

[00:19:58] Speaker 00:
AC applies to what we're saying before the Timken notice unless they're enjoined.

[00:20:03] Speaker 00:
Yes.

[00:20:04] Speaker 00:
And then E tells us what happened unless they're enjoined and then after the Timken notice.

[00:20:09] Speaker 00:
So they're complementary and they're consistent.

[00:20:12] Speaker 00:
And within the context of that statute makes complete sense, logical sense for Commerce to have acted.

[00:20:19] Speaker 01:
The other side, Capella, refers to the legislative history where there's a brief

[00:20:25] Speaker 01:
suggestion that maybe circumstances like Capella's, what's supposed to happen is typically or usually they get the pre-Timken notice rate, but maybe not always and maybe not for all entries.

[00:20:40] Speaker 01:
Can you respond to that note in the legislative history?

[00:20:45] Speaker 00:
Well, legislative history, where it says the usual case, again, we're... What do you think they meant by the usual case?

[00:20:51] Speaker 00:
Well, in fact, we're talking... I believe that what they're talking about is, in fact, the normal course, which is their administrative review process, which is something that Capella could have engaged in, as Your Honor pointed out.

[00:21:02] Speaker 00:
This is a system that requires participation.

[00:21:05] Speaker 00:
Capella did not do that.

[00:21:06] Speaker 00:
In fact, it did not do that from the very start.

[00:21:08] Speaker 00:
When it entered its merchandise, it did not declare them properly as subject to AD or CVDs.

[00:21:14] Speaker 00:
It did not do that.

[00:21:15] Speaker 00:
And so it claims that its broker somehow made a mistake or that customs finally told them what the proper classification and what the proper duty rate should be.

[00:21:27] Speaker 00:
But even that is no excuse.

[00:21:29] Speaker 00:
It's like you're a responsible importer.

[00:21:31] Speaker 00:
You still need to know what your merchandise is and what laws apply to it.

[00:21:34] Speaker 03:
Did they receive notice of the first and second reviews?

[00:21:37] Speaker 00:
There are federal registered notices, absolutely, Your Honor.

[00:21:41] Speaker 00:
And in terms of actual notice, they received actual notice from customs.

[00:21:45] Speaker 00:
prior to the second administrative review, but they still did not participate.

[00:21:49] Speaker 00:
So in fact, what Capella's arguing is an exception only for itself.

[00:21:53] Speaker 00:
It's a windfall.

[00:21:54] Speaker 00:
It didn't participate.

[00:21:55] Speaker 03:
Hasn't Congress said repeatedly, and haven't we said repeatedly, that one of the overall congressional goals here is to make sure that commerce doesn't act in a punitive fashion with respect to the setting of these rates, because that would be inconsistent with all of our treaty obligations?

[00:22:10] Speaker 00:
But it was, Your Honor, respectfully, it was not punitive at the time that these entries were made.

[00:22:15] Speaker 03:
the rate where... We know court had ruled it to be punitive at the time that the entries were made.

[00:22:20] Speaker 00:
But if we were to do that, Your Honor, it's like also, it was lawful at the time that the entries were made.

[00:22:25] Speaker 00:
And if we were to give credence to this type of argument, then you do have a problem where then everybody else who participated in the Administrator review, or even the McLean Fogg plaintiffs, it's like they should not receive the benefit as well.

[00:22:40] Speaker 00:
It's like, again, this system has been going on.

[00:22:42] Speaker 00:
It requires participation.

[00:22:43] Speaker 03:
Is there anyone else in

[00:22:44] Speaker 03:
in Capella's shoes, who was not deemed to be uncooperative, but who didn't participate in the McLean Fog or didn't have the entry and joined?

[00:22:55] Speaker 00:
Your Honor, not that I know of, and they weren't deemed to be uncooperative, so there was no finding of that.

[00:23:01] Speaker 03:
They were not deemed to be uncooperative.

[00:23:02] Speaker 00:
There was no finding of that.

[00:23:04] Speaker 00:
What Capella came to court with was,

[00:23:07] Speaker 00:
Basically, what we're looking at is an allegation that commerce was unreasonable, arbitrary, capricious, or otherwise not in accordance with law in setting the date of the revised rate prospectively, except for in-joined entries, and they want it to be set way back.

[00:23:26] Speaker 03:
So your answer is no one else falls into this.

[00:23:30] Speaker 00:
Not that I know of, Your Honor.

[00:23:31] Speaker 00:
They certainly have not said anything.

[00:23:34] Speaker 00:
Or they have participated the way they're supposed to, and they understand what the rules are, and they have not challenged anything in court.

[00:23:43] Speaker 00:
So that could be a possibility as well, Your Honor.

[00:23:46] Speaker 00:
I really, standing here, I don't exactly know every single possibility.

[00:23:51] Speaker 00:
But Capella is the only case that we know of that has challenged the statute like this.

[00:23:57] Speaker 00:
And in terms of the 12b6 motion, in effect,

[00:24:05] Speaker 00:
And Your Honor, Judge O'Malley was correct that you have to have more than a mere possibility when you allege.

[00:24:12] Speaker 00:
These are all conclusory allegations.

[00:24:15] Speaker 00:
We have to remember here that there are no facts in dispute.

[00:24:18] Speaker 00:
Everybody knows that there was no participation.

[00:24:20] Speaker 00:
Everybody knows what the rate is.

[00:24:21] Speaker 00:
Everybody knows what happened with the litigation with the McLean Fog.

[00:24:25] Speaker 00:
So there are no facts in dispute.

[00:24:28] Speaker 00:
So the trial court judge was correct in dismissing the case for failure to state a claim, and was correct for entering judgment.

[00:24:36] Speaker 00:
So I just wanted to point that out as well, since that was something that was touched upon.

[00:24:42] Speaker 00:
This is not a question also of unjust enrichment.

[00:24:46] Speaker 00:
That has nothing to do with it.

[00:24:47] Speaker 00:
Again, it was the proper rate at the time of Capella's entries, and that they failed to do anything

[00:24:57] Speaker 00:
to either try and get a different rate or try and participate.

[00:25:00] Speaker 00:
It's like that cannot be something that is redressable here, especially given the clarity of the statutes.

[00:25:10] Speaker 00:
So commerce acted properly and reasonably in assessing Capella's entry, the countervailing duties at the cash deposit rate at the time of entry.

[00:25:19] Speaker 00:
And if your honors have any other questions, I'd be happy to answer them.

[00:25:25] Speaker 02:
Thank you.

[00:25:26] Speaker 02:
Ms.

[00:25:27] Speaker 02:
Chen has a couple of minutes of rebuttal time.

[00:25:31] Speaker 04:
Yes, Your Honor.

[00:25:34] Speaker 04:
The only issue before this court, again, is whether Capella's alleged a plausible legal theory to survive a Rule 12b motion to dismiss.

[00:25:44] Speaker 04:
In the statute, there is not a consistent carve out, as the government alleges.

[00:25:50] Speaker 04:
In C1, the reference is to entries.

[00:25:54] Speaker 04:
But the legislative history for 1516 AE refers to all entries after the Timken notice.

[00:26:04] Speaker 04:
And the statute uses all in other provisions.

[00:26:07] Speaker 04:
For example, in C2, the statute says some or all entries.

[00:26:13] Speaker 04:
So there is no reason why the Congress could not have used all or only in section C1.

[00:26:22] Speaker 04:
That is an ambiguity.

[00:26:24] Speaker 04:
And also, as far as commerce's discretion to retroactively apply the lawful rate, in fact, commerce actually deviated from the statute.

[00:26:34] Speaker 04:
The statute says all entries after the publication of the Timpkin Notice shall be subject to the new rate.

[00:26:41] Speaker 04:
But commerce, in its discretion, applied the rate to entries that entered 10 days prior.

[00:26:49] Speaker 04:
So commerce deviated from the statute.

[00:26:53] Speaker 04:
is not plain in and of itself.

[00:26:56] Speaker 04:
As far as what the lawful rate at the time was, 374% was not lawful at the time.

[00:27:02] Speaker 04:
And that is the whole purpose of the statutory construct, is to enact some kind of protection to allow parties or even non-parties, as Capella's arguing here, to not be subject to such a high rate.

[00:27:17] Speaker 04:
In this case, these are unique circumstances because

[00:27:22] Speaker 04:
This is a CVD investigation.

[00:27:24] Speaker 04:
It involves a rate that's been judicially invalidated.

[00:27:29] Speaker 04:
The two-year period to raise a claim is almost up under 1581i.

[00:27:35] Speaker 04:
We understand that it expires November this month.

[00:27:39] Speaker 04:
So there will not be a floodgates issue, as Commerce has argued.

[00:27:45] Speaker 02:
And for these reasons... You may have noticed your red light is on.

[00:27:48] Speaker 02:
Yes, Your Honor.

[00:27:48] Speaker 02:
So we have your argument, and we will take Jason's advisement, and the court will adjourn briefly.

[00:27:55] Speaker 04:
Thank you, Your Honor.