Legal Case Summary

SKF USA v. United States

Date Argued: Fri Jul 13 2007

Case Number: W2014-00137-CCA-R3-PC

Docket Number: 2606751

Judges:Not available

Duration: 34 minutes

Court Name: Federal Circuit

Case Summary

**Case Summary: SKF USA v. United States** **Docket Number:** 2606751 **Court:** United States Court of International Trade **Date:** [Insert Date if Available] **Citation:** [Insert Citation if Available] **Background:** SKF USA Inc. (plaintiff) brought suit against the United States (defendant) regarding the assessment of antidumping duties on imports of certain bearings. The case revolves around the determination made by the Department of Commerce regarding the appropriate calculation methodologies for these duties and the application of specific tariff regulations. **Facts:** The plaintiff imports bearing products into the United States and is subject to antidumping duties due to pricing practices that were deemed to undercut U.S. domestic prices. SKF challenged the methodology used by the Department of Commerce in calculating its antidumping rates, arguing that the agency relied on flawed data and improper comparisons. **Legal Issues:** 1. Whether the Department of Commerce's calculations of the antidumping duties were consistent with legal standards and supported by substantial evidence. 2. The appropriate methodology for determining normal value and export price for the bearings in question. 3. The implications of using third-country market prices versus home market prices in the calculations. **Holding:** The court reviewed the methodologies applied by the Department of Commerce and ultimately affirmed the agency's decision, holding that the methodologies used were reasonable and within the scope of statutory requirements. **Conclusion:** The court's decision upheld the practices of the Department of Commerce in assessing antidumping duties against SKF USA. The ruling underscored the importance of compliance with procedural requirements in international trade and provided clarity on the use of pricing comparisons in calculating antidumping measures. **Implications:** This case may serve as a precedent for other companies involved in antidumping proceedings, particularly in terms of the accepted methodologies for calculating fair market value and the extent of deference given to agency determinations. Additionally, it reinforces the standards of evidence required in challenging imports that may be subject to regulatory scrutiny. **Note:** For more detailed analysis, please refer to case-specific documents and legal opinions.

SKF USA v. United States

Oral Audio Transcript(Beta version)

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Oral Audio Transcript(Beta version)

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ernment speak with one voice on the constitutional questions raised in this appeal, the courts and dolders, the commission will defer to the Department of Justice on those issues. Instead, I would like to leave my presentation to the issues raised by the time I was questioned. Simply put, the lower court did not have jurisdiction here at SKF's appeal. In this appeal, SKF challenged the commission's decision at SKF USA was not a supporter of the petition. We're going to bring it according to you, did the cause of action accrued. The cause of action accrued, Your Honor, with the publication of ADP list August 3rd, 2001. Not with the passage of the statute. Not with the passage of the burden. That's not our position or that's tenkins position. Okay. So with the publication of the list in 2002, did you say 2001? 2001. Okay. So at that time, I'm having trouble understanding how the cause of action to get the money accrued at that time because they could not have soon for the compensation at that point because nobody would know how to calculate it. There would have been an estimate. SKF would have been aware of an estimate about how much money would be available or how much money would be in the pool under the ball bearing order. First of all, you don't know how much is going to be in the pool. And second of all, you don't know who's going to claim or what the proportions of qualified expenses are for each claimant. So it doesn't seem to me that at that point, you could possibly sue for the money because there's no way of calculating the money. That's correct, Your Honor. But in this case, SKF's claim isn't about the money. SKF's claim is that the petition support requirement in the statute is unconstitutional. Well, they're asking for the money. And they're only asking for the money in 2005. Yes, Your Honor. But the determination about whether they have met the threshold eligibility to be considered to get the money. Well, that's an issue in their claim. That's an issue in their claim for the monies that they contend they are entitled to receive in 2005. Yes, Your Honor. But that decision, the decision about their status as a petition supporter or not a petition supporter was made in August of 2001. That's when they're claimed first accrued. That's when they knew or should have known that they would never receive bird monies. Could they have filed a claim for monies then? In August of 2001 is when the, yes, that's when the note, when the original, they could have filed a claim for monies for their share of some of these funds. August of, August of 2001 is when the customs announced that pursuant to the statute. The statute requires the commission to make a decision. But how could they sue for the money then? Nobody would not calculate it. Yes, Your Honor. But as a threshold. Well, it sounds to me as though what you're saying is that they had to break their lawsuit up into two parts. In 2001 they had to sue on the constitutional issue, as it gets as a facial challenge. And then in 2005 when the amount of money available was known then they had to bring a second suit to get the money. Well, no. Is that not true? No, Your Honor. It's not true. That would be a hard decision. Stop that. Bring the whole suit in 2001. How could have been brought in 2001? Because they will never be eligible for any particular fiscal year. Customs does it by fiscal year. So, 2001, 2002, 2003, 2004, they got around to it in 2005. But they were never going to get money in any of those years because they didn't meet the threshold requirement that they were a petition supporter. Which the commission made in August of 2001. Which was announced in August of 2001. Well, they may have never met the threshold conditions, but they were claimed did not accrue until they were at a point where they could make a demand for some monies. And challenge that their qualification. But the basis of their claim goes back to their constitutional argument. That is the basis of their claim in this case. They're not saying I did or didn't get money for a particular period. That's not their claim. Their claim is I don't qualify for money in a particular period. Well, the reason I don't think they do seem to say that their claim is they want the money. Well, of course, 2005. Had they asked in 2001 we could have done this year or the year ago. But the real issue for us, the commission, is when did the claim first accrue? The claim first accrue for the very first time when the commission made a determination under the bull bearing order with respect to SKF. That it was not a petition supporter. And given that it was not a petition supporter, it would never get money for any particular year, no matter how much there was or how little there was or how it was calculated. They simply did not qualify. When you say make a determination that was actually an affirmative act

. Yes, you're right. In that period of time. Yes, and the statute provides at 1675C, D1, that the commission make that determination and compile a list of the petition supporters and then transmit that list to the two customs for implementation in each particular fiscal year based on their qualifications. I'm not sure I think around over. You are over your chance. So let's hear from the audience. First it was winding down now, it's winding up, I wasn't sure what it was at. That's a little confusing, not a problem. Thank you very much. Thank you. Right, who's going to argue that the point on the other side? Thank you, Honour. My name is Herbert Shelley. I represent SKF USA. We have several points with regard to the statutes. One of the agents first, we need to court to remember that this is a constitutional issue. That harm came with violation of SKF's rights from a fundamental constitutional right when it expressed its freedom of speech in 1989 in response to the question in the ITC questionnaire. When the CDSLA was passed, the statute violated that fundamental constitutional right and each success, and it's the violation of the right that is the real harm to SKF. Each year that the customs service now distributes money to Timkin or other domestic producers, that fundamental constitutional right is violated again. The fact that the continuing violation of a constitutional right is what gives us jurisdiction here. You're right, on the factual issues, when the statute was enacted, when the ITC published its initial list, that wasn't a final determination on the facts either. There's an agency decision made by the ITC in interpreting that statute and determining who actually qualifies. There are situations outside that are not governed by the terms of the statute as to who will qualify, such as trade association members. There's an ITC decision as to whether individual members of the trade association could qualify for distributions. There are situations in which the Shays Sydney situation, specifically, in which Shays Sydney initially, there's a preliminary ITC questionnaire that asks this question, indicated support for the petition. In the final questionnaire, they indicated they did not oppose the petition. The ITC made an agency action to determine that's the second questionnaire response that governs whether you qualify. At the time, every year a distribution comes up, there is no guarantee that there's going to be any money distributed. There's no indication of how much it's going to be distributed, and there's no indication of who's going to qualify. But our basic point is that we're injured every year because this statute and the application of this statute violates SKS right to freedom and speech based on speech that occurred in February of 1989. I'm going to agree with you in just going forward. The sand and gravel and bulls are the two cases that are being relied on. The sand and gravel and bulls are the proposition that the 26-36-I is jurisdiction rather than a conventional statute of limitations. How do you distinguish? 26-36-I is the statute of limitations for 1581-I, which is the residual jurisdiction statute for reviewing the administration enforcement of the anti-dumping law outside of the context of reviewing the substance to do any dump of determinations. The CIT citing the Mitsubishi Electric in this court has found 26-36-I to be not jurisdictional. It's different from the jurisdiction statute that applies to the Tucker Act. The Tucker Act is suing the government for monetary damages for something the government did, and that statute of limitations is incorporated into the process of those determinations. Under an anti-dumping case under 1581-I, you're suing the government because of the way they administered the law. The 26-36-I provision is not a jurisdictional prerequisite. It's a time limit that is given under the APA Act for challenging the administration of the law by the Commerce Department of the International Trade Commission. We would argue that this is more like an administrative statutory provision under 1581-I, unlike the situation in the Tucker Act. Therefore, it's not jurisdictional. Because it's not jurisdictional, both the ITC and Timkin should have raised this as an affirmative defense before the law court and they didn't do it. They've raised it now in this case, and on that basis, they'll know, throughout the jurisdiction in this case. All right, thank you very much. Appreciate you staying within the time frame. All right, we'll reset the clock to 15 minutes, and we'll proceed with the argument on the rest of the merits of the case. Morning, Your Honor. May it please the Court, Franklin White, for United States Customs and Border Protection. The Court of International Trade? Is it the only one for the government who's going to speak to the constitutional issue? Yes, Your Honor. The Court of International Trade, in our view, plainly aired in its application of the rational basis test, one which is one of the most deferential tests in the law, in holding that the CDSOA support requirement violates the Fifth Amendment equal protection protections. It's clear that that decision was an example of the court overstepping its bounds and second-guessing determinations which are really left for the legislature to decide. Let's assume for the moment that you convince us about that. You still got the First Amendment problem in this case. And the First Amendment problem, it's a different standard of review, and the first thing we have to do, it seems to me, is to figure out what the real purpose of the statute is, not some hypothetical purpose. And the purpose of the statute seems to be to reward people who bring these end-dumping petitions and those who support the petitions. There's not necessarily anything wrong with that. I mean, the key-tam area, you reward people who bring false claims actions on behalf of the United States and things like that. If we look at it as sort of like a key-tam action, help me understand how these proceedings work. The petitioner does the government a favor by collecting the information and saying these people are dumping years information to support that, correct? Yes, Your Honor. Well, the purpose is, could be seen in the way that you're suggesting, but as we've pointed out in the briefing and as the government's made in the arguments regarding the equal protection analysis, is that this statute or the purpose of this classification should not really be seen as one of rewarding. Well, let's assume that hypothetically we do look at the statute as a rewarding, the petitioner's and the people who support them. Let's assume that that's the idea, that it's not just to compensate the most injured people. So go with me on that. The petitioner helps the government by identifying the dumpers and providing information. And in order to file a petition, you have to supply a significant amount of information, don't you? Yes, the petitioner is going to provide information regarding the unsurritated practices committed by its foreign competitors. The ITC is part of its neutral investigation, obtains information from various other parties involved, and is part of that, is requesting that other members of the domestic industry indicate by checking a box, whether they support that particular petition or take no position or oppose that. Well, as a practical matter, what are the people, understand the burden that the petitioner takes on, have identified that dumping and supplying significant information to the government is to what's going on here. What role in these proceedings to people who support the petition play? Do they help the government? Do they just sort of standing on the sidelines? What role do they play in the process? Well, there's a statutory, part of the ITC's mission in its statutory obligation, which stems from various international trade agreements, is that there is a requirement that there be found a material injury to an industry, and that's not to the petitioner alone. So the purposes of the support question in the ITC questionnaire is, in part, or perhaps wholly, to comply with its statutory mandate that... Well, but I understand that, but that's not really my question. My question is, if you support the petitioner in these dumping proceedings, what assistance do those people supporting the petitioner usually provide to the government? And of course, the proceeds, do they supply additional information, do they incur particular expenses? I mean, what's the role of a supporter of the petition? Well, part of it is simply to, as far as I understand, part of it is simply to satisfy this requirement, as I've been pointing to, but as far as providing additional information in supporting the arguments made by the petitioner, I suppose, that that does happen on a case-by-case basis, and I'm not listening to a greater or lesser extent, but... All right, doesn't have... Aren't the questionnaires sent out to an array of members of an industry, and those questionnaires call for answers to all sorts of things, and information on all sorts of things, and that one question do you support or not support or take no position is simply one of the many pieces of the petitioner's mission. So, those are the pieces of information provided by all of the recipients

. Correct. Your Honor, there's hundreds of pages. These are very extensive questionnaires. This is one question on the questionnaire. So, those parties that don't support the petition provide the same information as those parties that do? Is that... They're required by law to respond to the questionnaire in the same way that those who have answered the question-checking support are required to do. So, certainly, there's no... There's no... Who determines who these companies are? Is there a list that is maintained by commerce of members of the industry, and are these questionnaires sent out, all members of that industry? I'm probably not prepared to answer that question in enough specificity for your honor, but this is a matter of both the Department of Commerce and the ITC in conjunction. They perform different roles in determining when an anti-dumping or counter-vailing duty order is going to be issued. When a petition is filed for relief from unfair trade practices, there is a petition that's filed both with commerce and with the ITC at the same time. Well, what I'm trying to get to is the point that my college judge, Dyke, is raising, and that is... Is there something different that parties who support the position provide to the government as compared to parties that don't support the petition? Not that I'm aware of. I don't think that that is an important distinction between why this is a rational classification. The fact that those parties who have responded to a questionnaire as are required to have provided some information to serve this process. The key word I think we're getting at is required. Is there a compulsory aspect when you say required? Do you mean simply do your best? No, the ITC has the ability to require, through subpoena, responses to its questionnaires. This is an important government function, which is, like I've said, part of their statutory mandate of determining whether there is sufficient support within a particular domestic industry to go forward with anti-dumping or counter-vailing duty order. But isn't it... if you say to somebody, look, if this petition succeeds and there's dumping here, you'll get some money. Doesn't that encourage supporters of the petition to go the extra mile and try to provide more information and conduct a greater in-depth investigation of the dumping in thereby assist the government in that respect? Well, for one, to answer that question, your honor, to suggest that there is automatically a pot of money at the end is really 2020 hindsight. At the time when these investigations are initiated and in fact most of the dumping orders at issue that are not effective. So, I'm asking for as a practical understanding of how these proceedings work. And is it not the case that the commission relies on private parties here, just as it does in the 337 area to supply information. After all, the government has limited resources and it seems to be appropriate. And in fact, the reality that the government relies on private parties to do a lot of the speed work for it. Correct? Yes, Your Honor. I mean, I certainly will have to say that the informational purposes of what the government obtains from the questionnaire responses is the same for those who supported and thereby are eligible under the classification and the CDSOA to receive these funds. And for those who opposed or took no position. So, they are also aiding the government and a government function in that respect. Certainly that is true. But as a matter of whether that changes this classification from one which is constitutional to one which is unconstitutional, we don't see how that fact influences that. It's what you want us to hold an unconstitutional? Well, our position is that as a matter of rational basis review, which is all this is, that all it should be because this clearly doesn't involve content discrimination on speech, that it was conceivable. And in fact, easily apparent on the face of the findings of Congress that preceded the CDSOA's provisions and also the floor statements of Senator DeWine and Senator Bird that this was intended to be a remedial statute that was going to aid members of domestic industry that had been continued to be injured by dumping and subsidization. That may be all well and good. The question is if there are first amendment implications here then maybe a different standard applies and scrutiny might be the standard and not rational basis. Certainly the Court below didn't address any of that and of course the Court here has within its discretion and particularly as it's been briefed by the parties to decide the first amendment question. But as a matter of first amendment law, before you get to the question of strict scrutiny, you have to have some sort of statute that has a speech, some burden on speech. There is no. If there were prohibition here, if there was a prohibition on people opposing anti-dumping petitions, that would be unconstitutional, right? No question. Yes, Your Honor. I mean, that's not what this. Well, but the question is does it make a difference that this is just a subsidy to the people who make and do the petitions and support the petitions? Is that make a difference? It makes a difference that the statute itself does seem to be rewarding people who take a position that favorable to the government. There is nothing in that statute, Your Honor, that indicates any attempt to reward parties as opposed to provide a subsidy to American manufacturers who have been injured. Well, it's a statute. The statute, that's what it says. It says we're going to reward you if you're a petitioner or you support the petition. It seems to reward the position that you're taking. Well, it would have otherwise, perhaps, used the phrase, favorite producers. Here by talking about affected domestic producers, it appears that the statute in keeping with the findings of Congress and whatever little legislative history there was on the floor, regarding what the intent was, was to aid a certain class of domestic manufacturers and not all of them. That's different than our reward. And to suggest that by using this check box of support versus opposed, that Congress intended to reward a favorite viewpoint, which is the ultimate test that has to be applied before we can ever get to the question of strict scrutiny. On the first point, this way, if the rational basis, and the one I understand that is being suggested, is that a party who answers the support question of over the good, is demonstrating by that answer that it suffered greater harm than someone who does it. If, going back to what I asked earlier, everyone has to supply the same information and can be compelled to do so. What does the answer to that question tell me in terms of the actual harm being suffered by those who do? Well, it is a matter of economic logic as we've been pointing to in the briefing. It is rational for Congress to believe that those parties who, when asked that question, a petitioner has come to the ITC requesting a remedy for a harm. I've been harmed by continued dumping or dumping and subsidization. Those who either petition for that relief or supported the petition for that relief should be presumed as a matter of economics and that firms are going to pursue profit and they're going to be thinking about the bottom line that they would be more harmed than those who opposed or took no position. That seems fairly uncontroversial. In fact, in the Shea Sydney case, the court there essentially conceded that as a matter of rational basis review, there is a high point of rational basis. The problem is it doesn't work on the First Amendment. The First Amendment requires us to look to see what the objective of the statute is. On the face of it, it seems to be a reward statute for people who fall petitions or who support them. We're trying to figure out whether it is a reward statute. It can be sustained. I see that the time is. We were intending to split the time. It just goes ahead and answer Judge Dykes' question and then we'll address the time. Certainly, I understand where your honours questions are directed to and clearly as a matter of First Amendment law, our responses of there is a rational basis and there is an economic logic to this classification. The legislation is not enough and I accept that

. But as a matter of First Amendment law, there has to be content discrimination or viewpoint discrimination involved in the statute. There is no way to look at the statute. On the face of it, they're rewarding the people who favor the government's position and not rewarding the people who don't. Well, you've characterized it as a reward, Your Honor, but the statute does not actually use the word reward. It does use the phrase affected domestic producers, which we, say, suggest in keeping with the statute and the findings and what was said about the purpose for this was to aid those producers that were seen as being more harmed than others. And the fact that they received these benefits and that the other parties who have also aided the government in anti-dumping investigations by responding to questionnaires, but who opposed the petitions do not receive that doesn't involve any sort of speech or content discrimination in what the government's purpose behind this is. After all, the ITC's investigations are completely neutral. It's a non-political, non-policy-making body whose function is to do essentially a quasi-judicial function of determining whether domestic industry has been material injured. Is there any final point you'd like to make before your colleague unless the court is thanking you? Thank you very much. And since we've used up most of your time with our questions, we'll restore two minutes of rebuttal and we'll add five minutes to hear from Professor Kimick. Okay, please, the court. I've done from back here for Timkin company. I'd like to respond to the court's questions on the first amendment issue. This is not a first amendment case. And the way I think it to understand that is to recognize that the survey requirement where the request or whether you're a petitioner or whether you support the petition is independent. Of the passage of the CDS away that survey took place in 1988, 1989, well before the enactment of the statute. So the two things were not originally linked. And in fact, that goes a long way toward explaining how you can easily get lost in this case. Because when you hear the language, do you support something? It sounds like you're asking for somebody's opinion. And it sounds like the government is indeed asking you, are you in favor of us? Are you on our side? But when in fact, that's not what the survey requirement is about at all. It originates from the obligation of the part of the survey requirement that we're addressing in constitutional terms. It's the statute, which gives money to people who petition or support the petition and doesn't to those who don't. And the question is whether is it appropriate to reward people, even monetary reward to people who petition or support the petition? In the manner in which you ask the question, the first amendment would say no. Because if you say, if you hold out money and say, if you agree with me, you can have the money. That's the quintessential unconstitutional condition. But that is not what this is. Because the inquiry as to support is not with respect to a particular government point of view. Or it goes back to an obligation to determine whether as the commission, the petitioner comes to the commission and says there has been a material injury to our industry. Are key tam statutes constitutional? I believe they are under the first amendment. I believe they are. But I also believe the key tam statute has a very unique history, which has been separately litigated on that question. And I don't believe we need to rely upon them for that for this purpose. But what but you may not rely on them. You may not need to rely on them. But why isn't this sort of like a key tam statute, at least this to the petitioner? Because he has to collect information to spend a considerable amount of money doing that to fair it out people who are engaged in dumping. What's the matter with rewarding people who perform that sort of assistance to the government? I think the petitioner initially comes to Department of Commerce and does a public service by saying there's form dumping illegal dumping occurring which the Department of Commerce needs to address. At the same time, considerable amount of effort to do that. A considerable amount of time, effort and expense. Also goes to the Interstate Commerce Commission and says there is an injury not just to me but to the entire industry. But that then raises the question. Here's one firm who's gone through enormous expense, as you say, an effort to bring that to the government's attention. But the government then has the obligation out of its international agreements to determine whether or not that petitioner is there alone or whether he in fact represents the entire industry. And so the origin of the support requirement is not a support requirement that inquires as to a particular point of view. But it's basically a standing requirement. Does in fact the petitioner represent the industry as a whole? The government is trying to ascertain whether in fact the petitioner is by himself in terms of his complaint or whether in fact there's a major injury for the industry in its time. What I'm saying is the only way we could sustain this statute under the First Amendment is by analogy to key tam statutes. You'd say that you lose. You're giving that up. Well, I'm saying it's not necessary because the supposed supposed we've to decide that it is necessary. Well, then I will be winner lose. I think the if you're analogizing the I think we win because the the precedent of the key tam statute says that in fact the government can have a neutral interest in providing a subsidy to someone who does a service for the United States of America and identifies fraud, waste and abuse when others wouldn't do it. And that's independent of any point of view that the government may have. Instead it's just the objective is the fair administration of the law and the good citizen has done it. And that key tam analogy clearly supports us without implicating any First Amendment analysis. But if others are being required to come forward to yes and support the same complaint and if some bring rewarded and some not and having a hard time following the petitioner. You're not suggesting that trade policy is not government policy. No, I'm not suggesting that but I'm also I am suggesting your honor that there is no particular point of view that the government is trying to impose upon anybody in this transaction. They're basically conducting an investigation. Has there been foreign dumping? Has it resulted in a major injury, a material injury to the industry? And then when that requirement is then transferred over to the CDS O.A. asking in the event that the harm continues, that the dump that the order that has been issued hasn't brought to a stop the illegal practices. 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The question's been in the ITC questionnaire forever. And I think the purpose gives an indication, again, to meet the statutory requirement to have enough support within the industry to go forward with enough. 25% requirement. Right, 10% can't even, what 10% can was even around there was Torrent in there. The ball bearing industry is a fragment of industry. To even get a 50%, you had to have my clients for US production in there because they're the biggest US producer of these things. There wouldn't have been enough support. That question is aimed at identifying who supports the industry to meet this 25% criteria. And if they find that there may not be sufficient support, the Commerce Department can pull the industry to determine who might support it or what. But the answer to that question is not based on whether you want the case to go forward. It's based on a viewpoint. SKF is an international company that leads in free trade. Many companies don't believe there ought to be an anti-dumping law. That's a perfectly good gentleman viewpoint to have. And saying that viewpoint and responding to the question in that manner, because of a decision having nothing to do with the anti-dumping case, or that's going to go forward, is a right that they have under the Constitution. And by now benefiting their competitors under the burden of the provisions based on their viewpoint, their private viewpoint, it's an unconstitutional law. Well, the back to your vision of a constitutional version of the statute is you see it. What if the statute had been written to say that the government may amongst all those who complain with petitioners? So those who think most worthy in the sense that they will be the most cooperative, the most enthusiastic and the most helpful, in particular, in this case with that statute? I think if that were, I don't know, I don't know if that's a subjective question. I think a more direct question to be if the ITC were to determine based on the information they received and their questionnaire responses, these companies look like they're really being harmed. They're much worse financial shape than these US companies are. That might be a legitimate standard of basis on which to differentiate among domestic producers. Your question is a little more subjective and it could possibly lead to interpretation of viewpoints that may or may not be supportive of the Constitution. Let me try to pursue this question. Suppose the statute said that we're gonna reward the people who are most helpful to the government in pursuing these anti-dumping proceedings by the supplying information and identifying people who are engaging in dumping. Would that be permissible under the First Amendment? I don't know if it would your honor because I think you still have to look at the statute. It's a criteria that's not necessarily indicative of a private viewpoint. So you have to get away from the criteria, a criteria that requires a company to express a viewpoint in order to receive a reward. That situation, if there are firms that go through the process of putting together the data to necessary to initiate a case, then they have taken a concrete act to go to that point. Again, that's not what's happened here. Then you'll be rewarding the conduct rather than the opinion. We're recording the effort taken by the conduct. There's something that is not a constitutionally protected right. And in making that criteria known up front, that if you support the petition by giving the necessary data to have the case initiated, that is something that could be considered as an indication of perhaps greater harm than, and therefore meet the alleged justifications for the statute. But again, that's not what the CDSOA did. It base its rewards on a viewpoint taken. There's nothing necessarily to do with the investigation. Just to get to a couple of points about their pressor came excited. This isn't a speech case. Well, it is a speech case. This question is protected speech. It requires the US government requires that you respond to their questionnaire. You have to respond honestly to their questionnaire. And you are based on that just responding to a questionnaire, a question expressing the viewpoint required by the US government. Also, the viewpoint. For the benefit of your co-counsel, I just suggest you take a look at the clock as to where you are. And one more update, gave you your time recording. I will, you're on. Thank you. I'm not telling you to stop. I appreciate it. If you go through each of the criteria, it's protected speech. As mentioned that the ITC is a neutral agency. It is a neutral agency and has to find a, make a neutral impartial decision in these cases. But trade law is a political statute. And the ITC, every time it issues a determination and in any dumping case, affects foreign US policy because our foreign trade partners retaliate against the US government based on ITC decisions if they think it's inconsistent with our international obligations. It is a political, the whole aspect of this is political. Also, this case requires that a company like SKF expressive viewpoint in the context of a public forum. The ITC investigation opens a public forum in which certain parties are mandatory respondents and have to respond. It also opens up the investigation to congressmen, consumers, non-participating respondents to give their viewpoint on the limited aspects of that proceeding. So again, you cannot discriminate based on viewpoint in the context of a public forum. Every aspect of the way the CDSOA viewpoint provision was written is a constitutionally, unconstitutional provision in violation of SKF's first minute rights. Your questions, I'll turn to Dr. Mr. Shor. Thank you. Shor, good afternoon. Good afternoon, Michael Shor on behalf of Amiki, Georgia Foods and Chase Sydney. I want to start with the key tab question because I think it's an interesting analogy, but an inappropriate one. And I want to clear up a misconception. The United States government is neutral in anti-dumping cases. It doesn't favor them or disfavor them. The petitioner that brings the cases not in any way by listening to the United States is exactly true. I mean, we have a statue which expresses a public policy that dumping is a bad thing and should be corrected. So to the extent that it may be neutral and adjudicating whether there's dumping in a particular case, but the United States clearly has an interest in encouraging dumping to be reported and to be prevented. I disagree with that. Under the international agreements towards the United States as a party, the United private parties have an interest in anti-dumping cases. The relief goes only to private parties. There's no governmental relief. It favors producers over consumers. The government itself is neutral. Why would the government have an anti-dumping statue that they thought didn't care whether there was dumping her? Because it protects producers from anti-dumping ads. That's a judgment that dumping's bad for producers and that's a public policy determination, isn't it? May we talk about a semantic issue? The government does have an interest in ensuring that free trade between countries occurs fairly. The government does not have an interest in any particular anti-dumping case and what the result of that case is. It's different from a key tam case in that it's not a private party stepping up and pursuing the government's interest in uncovering. I don't understand. Wait, for how? Why are petitioners who identify dumping if there is, in fact, dumping serving the government's interest? The government doesn't like dumping. It wouldn't have an anti-dumping statue if it didn't care. Well, but that's like saying, why does the government has federal courts also solve civil disputes? It has an interest in resolving those disputes, but the government has no interest in the disputes. It's not just providing a forum. It's also setting the rules. It's saying dumping is bad. Dumping will lead to anti-dumping duties. It doesn't say that dumping is bad. It just says that there will be a remedy if dumping is found. Dumping is not unlawful. Dumping is not unlawful. This case, the problem with the key terminology. It may not be unlawful, but it certainly can be economically painful. It can be economically painful, not to the government, but, and that's the difference between the two cases. The government has, by passing these laws implemented a policy decision that that dumping should come with a penalty. A remedy, yes, not a remedy. I'm sorry. Court has said that dumping law is remedial. I agree with you. I mispoke. I agree with you. But nonetheless, the statute reflects a policy decision, as I think Judge Daye correctly asserted. Let me put it this way. Unlike a key-tam case, the petitioner and an anti-dumping case is not stepping in the shoes of the government and remedying a problem for the government. It is stepping in its own shoes and remedying and seeking a remedy for the entire industry. It is more like a class action case than a key-tam case. They're seeking a remedy for their own harm, not for harm to somebody else. And as a class action, that's the constitutional problem with providing CDSOA benefits just to the petitioners, in that they are not acting in their individual capacity. A petition can only be brought, not by petitioners

. It base its rewards on a viewpoint taken. There's nothing necessarily to do with the investigation. Just to get to a couple of points about their pressor came excited. This isn't a speech case. Well, it is a speech case. This question is protected speech. It requires the US government requires that you respond to their questionnaire. You have to respond honestly to their questionnaire. And you are based on that just responding to a questionnaire, a question expressing the viewpoint required by the US government. Also, the viewpoint. For the benefit of your co-counsel, I just suggest you take a look at the clock as to where you are. And one more update, gave you your time recording. I will, you're on. Thank you. I'm not telling you to stop. I appreciate it. If you go through each of the criteria, it's protected speech. As mentioned that the ITC is a neutral agency. It is a neutral agency and has to find a, make a neutral impartial decision in these cases. But trade law is a political statute. And the ITC, every time it issues a determination and in any dumping case, affects foreign US policy because our foreign trade partners retaliate against the US government based on ITC decisions if they think it's inconsistent with our international obligations. It is a political, the whole aspect of this is political. Also, this case requires that a company like SKF expressive viewpoint in the context of a public forum. The ITC investigation opens a public forum in which certain parties are mandatory respondents and have to respond. It also opens up the investigation to congressmen, consumers, non-participating respondents to give their viewpoint on the limited aspects of that proceeding. So again, you cannot discriminate based on viewpoint in the context of a public forum. Every aspect of the way the CDSOA viewpoint provision was written is a constitutionally, unconstitutional provision in violation of SKF's first minute rights. Your questions, I'll turn to Dr. Mr. Shor. Thank you. Shor, good afternoon. Good afternoon, Michael Shor on behalf of Amiki, Georgia Foods and Chase Sydney. I want to start with the key tab question because I think it's an interesting analogy, but an inappropriate one. And I want to clear up a misconception. The United States government is neutral in anti-dumping cases. It doesn't favor them or disfavor them. The petitioner that brings the cases not in any way by listening to the United States is exactly true. I mean, we have a statue which expresses a public policy that dumping is a bad thing and should be corrected. So to the extent that it may be neutral and adjudicating whether there's dumping in a particular case, but the United States clearly has an interest in encouraging dumping to be reported and to be prevented. I disagree with that. Under the international agreements towards the United States as a party, the United private parties have an interest in anti-dumping cases. The relief goes only to private parties. There's no governmental relief. It favors producers over consumers. The government itself is neutral. Why would the government have an anti-dumping statue that they thought didn't care whether there was dumping her? Because it protects producers from anti-dumping ads. That's a judgment that dumping's bad for producers and that's a public policy determination, isn't it? May we talk about a semantic issue? The government does have an interest in ensuring that free trade between countries occurs fairly. The government does not have an interest in any particular anti-dumping case and what the result of that case is. It's different from a key tam case in that it's not a private party stepping up and pursuing the government's interest in uncovering. I don't understand. Wait, for how? Why are petitioners who identify dumping if there is, in fact, dumping serving the government's interest? The government doesn't like dumping. It wouldn't have an anti-dumping statue if it didn't care. Well, but that's like saying, why does the government has federal courts also solve civil disputes? It has an interest in resolving those disputes, but the government has no interest in the disputes. It's not just providing a forum. It's also setting the rules. It's saying dumping is bad. Dumping will lead to anti-dumping duties. It doesn't say that dumping is bad. It just says that there will be a remedy if dumping is found. Dumping is not unlawful. Dumping is not unlawful. This case, the problem with the key terminology. It may not be unlawful, but it certainly can be economically painful. It can be economically painful, not to the government, but, and that's the difference between the two cases. The government has, by passing these laws implemented a policy decision that that dumping should come with a penalty. A remedy, yes, not a remedy. I'm sorry. Court has said that dumping law is remedial. I agree with you. I mispoke. I agree with you. But nonetheless, the statute reflects a policy decision, as I think Judge Daye correctly asserted. Let me put it this way. Unlike a key-tam case, the petitioner and an anti-dumping case is not stepping in the shoes of the government and remedying a problem for the government. It is stepping in its own shoes and remedying and seeking a remedy for the entire industry. It is more like a class action case than a key-tam case. They're seeking a remedy for their own harm, not for harm to somebody else. And as a class action, that's the constitutional problem with providing CDSOA benefits just to the petitioners, in that they are not acting in their individual capacity. A petition can only be brought, not by petitioners. It has to be brought on behalf of the industry as a whole. So if you allow the benefits to go just to the petitioners, you're not providing the benefits to the industry as a whole on whose place the petition would be brought. It's just like saying in a class action case, the name plaintiffs can recover the full pot of money. That would be unconstitutional. Why would it be unconstitutional to say that the name plaintiff can, in a suit for injunctive and damages relief, that the name plaintiff will get all the damages and that the injunctive relief will go to benefit the class? Why is that unconstitutional under the first amendment? Well, not the first amendment under the due process clause, because it leaves the other parties without a remedy. There wouldn't be a first amendment. There would not be a first amendment problem in that case. Yes. The other thing that's important to keep in mind here with the key terminology is that at the time the petition in this case was filed, which was 1989, there was no burden on. So this was not a petition seeking distribution of anti-dumping duties. This was a petition brought for a different case. And there's still a constitutional problem under the first amendment in awarding all the benefits in one subsidy to a petitioner who did something else, because it still treats the act of not joining a petition, which is a constitutionally protected activity as a basis for denying benefits. So there is still a constitutional problem if this statute were to have been written to say that only the petitioners would get the benefits. Now, as to the support requirement, which is a different title. Leave the key term. Often in a key term case, you'll have 20 punitive writers. Well, this could bring the same complaint to the government. So I'm common as a figure to elect among them to choose the applied effort that it's going to support. It isn't the, uh, the later in a key term action trying to do the same things that the petitioner in this context is doing, which is to invoke the machinery of the government to do something that is a private party that could not accomplish. No matter how much you make complaint about dumping, you're not going to be able to go out and assess duties or customs, like that is a private party. I don't pretend to be an expert in key term actions. The first I've heard of them was the discussion this morning and what I remember from law school. But the, I don't know whether the government gets to pick the particular plaintiff, but the analogy is correct. The petitioner is the one who gets the ball started. After the ball gets started, everybody has an equal role. The petitioners, the opponents, and the people who took no position in the domestic industry all get the same questionnaire, all have to complete the same information and the commission decides whether the industry is a whole is injured, not whether the petitioners are injured. But, but isn't it possible that someone who is a supporter of the petition is going to put in more effort, go to more expense in answering that question here than somebody who opposes the petitioner? Well, with the burden amendment, that's exactly correct and that's the problem. The burden amendment creates an incentive for people to support petitions and a disincentive for people to oppose petitions and thereby skews the information that the government actually receives. Well, so what's wrong with that? And to the first amendment, you say that the person of you will reward you if you support the petition and share it without any dumping and help the petitioner prove the case. Well, then if you don't do that, we're not going to reward you. That's what the Supreme Court said was the problem in the Velasquez case in that when the Supreme Court took a benefit provision of funds to the legal services corporation and said you can use the money for all purposes but you can't use it to advocate a particular viewpoint on state and federal welfare laws. The Supreme Court said that's unconstitutional under the first amendment because excuse what the neutral decision maker is receiving it. Excuse the benefit, excuse the advocacy. They said it's analogous to the limited public forum cases because they're supposed to have a full exchange of viewpoints and you can't pay people that just support one viewpoint. So the limited public forum cases also create a problem for the government in this case. Because the ITC is supposed to be a neutral decision maker. They're supposed to receive Zellis Advocacy of both sides. They're supposed people are supposed to feel free to give their honest viewpoint and the government can't step in and pay one viewpoint and not another. That's the problem with that. There are three questions the court really has to answer under the first amendment and they're all fairly easy and straightforward questions. First, is SKF's response to the petition support question protected private speech? The only exceptions to protected speech are things like defamation, fighting words, this doesn't fall within any of those categories. The position that Dr. Kimick advocated and the government advocates of drawing a distinction between speech that occurred in the past and speech that occurs in the currently has no support in any case. The first amendment is not that fleeting. The second question, does the government's action discriminate based on the viewpoint? That's an objective, not a subjective test. Question isn't whether the government can concoct some rationale after the fact that creates a rational basis for the statute. You have to look to the statutory language and it's purpose using the traditional tools of statutory construction. What does the statute say? This statute is tied to speech. It's tied to the viewpoint, a petitioner, or a domestic industry producer expresses on whether they support or oppose a petition. Ask yourself what the limits of the government's argument are. If you accept their argument, the first amendment disappears entirely in the funding context. If their argument is accepted, the government can say, do you support John McCain for president? If you do, will award you a tax rebate? If you don't, we won't, because we will assume that since McCain advocates tax reduction, that those people who support him need it the most. That's a rational basis. I'm just under the election law. You do get rewarded for supporting. I can't, I can't. They pay you. Not a public funding, you know? The candidate does. Not the voter. Their position has no limits. Look at what the Supreme Court said in Vascas. Vlaskas. They warned against exactly the argument they're making here, which is that the first amendment shouldn't be construed in the subsidy context as every argument the government makes is that they will be defining the limits of their program. And therefore, the first amendment will be produced to a semantic exercise. That's really what they're asking you to do. The argument that they advance here is the argument that was rejected by the court in Vlaskas. The third question before the court is does this measure survive strict scrutiny? Nobody argues that it does. It couldn't possibly. The government's argument that this case has nothing to do with speech proves that it can't survive strict scrutiny. They could have tied the benefits who economic criteria. They could have tied it to injury. The measure is not narrowly tailored to do us serve a compelling state interest. Your arguments survive strict scrutiny of the clock. Thank you very much. And we'll hear Rebuttal. I want to just take one minute of your time, Your Honor. So I can. You've got two. Two, thank you. I think listening to the argument of SKF and Amicie in this case, the party seemed to be an agreement that this statute and the classification is really not that similar to the situation of related in Quitam cases where they are providing a service to the government and receiving some amount by statute as a reward for having brought to the attention of the government, fraud, waste, and abuse

. This is a statute that deals with, as I think has been discussed, the private members of domestic industry helping themselves by seeking relief from an independent government agency whose function is to determine in conjunction with the Department of Commerce, whether there should be a remedy for unfair, foreign dumping and subsidization. If they have in seeking this remedy for themselves and the industry, they are providing information that the government in part is required to receive by statute that was meant to implement international agreements to determine, for example, for standing purposes, whether a sufficient number of percentage of the domestic industry believes there needs to be a remedy to dumping in a situation like this. So the purpose of this question is not geared toward any particular viewpoint. It's geared toward the government receiving information that's necessary to pursue the statutory mandate of the particular agency. And it's being used as a convenient means after the fact that most of these orders existed long before the CDSOA to provide a way of targeting those producers most in need of further assistance. Thank you. Thank you very much for thank all council. In case is submitted