we have five cases before us today one case that has already been disposed of and handle on the breach so we have four cases for argument the first case is boomerang two l l c versus the united states sixteen fifteen fifty four mr sharon i understand you go you're going to speak for the mike mike record you're speaking for six minutes you're going to reserve three minutes for sees one standing practice required that when the department finds transactions between affiliated companies it must decide whether to collapse these affiliated companies or doesn't  exhaust because your honor this is one of the issues as in the regulations most of the issues that the department addresses in determining its dumping calculations that the department must do so a party cannot think they have that it's incumbent upon you under the exhaustion statute and regulation to raise that to them so that there can be a decision for them to make and then be reviewed by the c i team isn't that  these cases but in administratively law as a whole one as the court below found here the first time you department of commerce ever utilized any of these colombian transactions for any use was since filed but the it's always going to be the case if they change their mind on a final determination are you saying that if commerce uses a different calculation they used any initial determination that you can you're free to raise any arguments whatsoever that you may not have known about because the other party raised fed but you just chose not to well i think there is a case in this particular circumstance very few issues in the statute the regulations that require the pardon still raises issues that aren't there are myriad issues which is why we have a several hundred page final decision here that the department must make or else they're not doing did you know respond to that or at least raise that isn't it we're seeing or for she that knowing that congress can switch between a preliminary and a final determination and say i'm going to have a minimum object to used there were there was no more than six or seven countries are things right and this is a and cases where commerce plucked this data without notice from anybody's argument i mean the other side specifically argued to use this data you specifically argued against it you just in it come up with the argument you have now that you made for the first time to the c i teeth are you saying that argument wasn't available to you when you made your response and you're about to break the others put unavailable but this was one phrase  agree that there was a phrase in there sixty seven page brief with this issue which you responded to i mean it's how can you say came out of the blue when you specifically made a response and said you can't use this data if you're going to argue against the use of the data aren't you obliged to tell commerce all the reasons that you can't use the data with all due respect you who are no we don't believe so we believe that i don't think that i don't understand please don't talk over me i don't understand how that's a correct legal articulation of basic exhaustion principles if you're on notice that a certain decision and certain evidence may be relied on and you have an opportunity to address all arguments why it shouldn't be relied on and you fail you have failed to exhaust  requirement and they have to do it what do you how do you interpret where appropriate we believe this review board it's you have to find that they have used their discretion they did have to make this decision that court did make this decision based on the record and as i just told judge hughes they said look there was no due process for the parties because the department never gave the parties an opportunity to raise all these different it sounds like you're saying there is no exhaustion and remedies because this is something congress should have done anyway that is correct so that's a different rationale and that is clear and we agree with the c i t's rationale quickly because the idea as rationale would mean that every time commerce comes up with a different methodology energy of its final determination that the exhaustion requirement goes out the window because they've always come up with a new methodology that is after the briefing that you haven't specifically been given an opportunity to respond to that not every time this was the issue that decided whether this would be a form of a negative situation this right i don't understand how we could cap'n that if if you're allowed to not raise arguments when you're on notice that th don't might be yours and sit on your hands and then after the c i t actually uses that are the commerce actually uses that data say oh we have this new argument that we could have raised that we don't it that doesn't seem to me to be a proper legal articulation exhaustion principles and if that's the legal articulation i don't think we have to get to to abuse of discretion i think it's an incorrect statement of general legal exhaustion principles which the statute clearly incorporates situation measure if data is submitted by responding in a in appreciating it seems to me that the parties can get that data and we view it and run their numbers and and actually come out with their own estimate as to what a potential dump and margin would could be generated by those numbers and if and if we were in a situation where we're parties can do that and  here and not get into this it is really a receipt but we create a situation where you have to buy at the apple and by remaining silent you benefit from knowing what the actual margin  up the other side of your argument if we were talking about the response having not resign from the remedy for a few reasons and i stated yes and not you know i think the key way to cabin that concern and to address i think judge hughes's concerns is that the focus of the exhaustion dock doctrine should be on what the agency has given notice to the parties are the key issues and so if the agency has not suggested that an issue is pertinent how can you say that the that the data for profits which data to be used was not the agency didn't give you notice they specifically gave you notice there were a lot of different inputs on the records your your friends on the other side were arguably for the p that commerce in it up using i don't know what else that they have to do if what you're saying is commerce cannot change its mind from its preliminary determination to its final determination without giving us as my colleague says a second bite at the apple well that's not exhaustion principals i mean are you saying that you had no opportunity to respond to this argument raised by your friends on the other side we're not saying that your honor what i want isn't that the basis of the exhaustion doctrine and thousands of commoners like a regular agency regulation are making this is a case where there are at most four or five parties and you did respond to the arguments of your friends on the other side i know you didn't specifically you specifically decided not to file  outraised issues the other side is entitle to rely on the pollution a determination which is the agency's notification of what the relevant issues are and then if you even see changed its mind at the final determination without giving notice to the to the parties or giving them an opportunity final determination instead this is a situation where both sides and we don't like your initial determination and explain why and give alternatives and then commerce adopted one of right that's very true but i think if you look at the actual proceedings before commerce the suggestion of using this particular claim your transaction was really an afterthought for everyone it was an afterthought of the read it was an afterthought it was specifically in the briefs at least one part of the poll sr it was in the pre different ways they could give notice or if they do adopt you know what methodology we're not saying they can't it's just then they would have to do all of the required analysis that goes along with that methodology that is basically i think you're saying if they changed the methodology from their initial to the final determination they still have to issue another final the terminations after that that they do not have to your honor but they would have to if they had done this class we're going to solve this that you're allowed to raise any argument whatsoever one review can see i t certainly not in order to only important aspects of the of the please the court i'd like to start by addressing this notice contention had on the argument that congress has to notify the parties of what congress will be addressing in the final decision is exactly contrary to how the process works and how congress has established the process as boomerang itself argues in its conceits in its opening brief it page seventeen congress as practiced in its final decision is to address the part that the arguments made by the interested parties and we see that even in just how you know forty seven page brief which yes your honor it was it was wearily at play by the at the latest by the time the parties had the opportunity to file the bottle brace that columbia sales were placed on the raised as a problem and so that they don't work on the record they were expressly raised in just those case brief and i do have a few sites for the court i'll use the public data they were they were raised not has options for constructive value profit but also at for example page three five two one three four eight seven and that section in the  separately they raised this for example at page six nine three three and six one three four so there's two pages one and a half at least discussing the option of using just goes on sales and intentionally withhold arguments from commerce you know that may be sure not with the fact remains that they didn't raise this argument to congress and whether that's because of an intentional omission because of an afterthought because of a change in strategy on their part really doesn't matter the point is that commerce officials interested parties should not have to duplicate their efforts in this investigation simply because of an afterthought or an omission by certain parties  abuse of discretion happened here because the cia t s reasoning was legally erroneous and to the extent they made any findings of fact the finding of fact was basically simply because there was a change between the preliminary and the final decision seems to me that the proposition of whether new notice is required before congress can change its position from an initial to a final determination is a legal question it is not a discretionary question in each  case that seems to me if the rule is that they always have to give new notice on issues of importance then we have to determine if that's consistent with the statutory regulatory scheme and if we can and that we can answer the noble right as a matter of law completely wrong under this court's case law including chorus stall in chorus stall the plaintiff sought to rely on the cia to splinter a decision which soundly rejected their argument and this court said no you still have to follow the procedure one were your dream that it happened that this which happened at the very last minute and the time to to notify well i'll turn to break down your question of that i think in that what happens in the normal course of a commerce investigation or administrative provide notice to parties that congress is looking for additional options for a certain value i don't think that happened here here the congress did bring in additional constructive value information so if it's a sort of thing where commerce is required of additional information there will be notice to the parties because there will be communication between congress and the parties but that's not what happened here what happened here is that the parties teed up this issue about concerted value profit importantly it was the pla there were six or seven options and so that so this was the adversarial process and at the end commerce weighed them all and concluded that you know that the that the best option was the columbia sales do you think hypothetically if we had a different case where there was a huge record and there was lots of different data that could support more than one methodology in the initial determination palmer she relying on one side of the all the briefing was on methodology and a limited set of the commerce decides to come up with an entirely new methodology based upon a never before mentioned by anybody in their final determination might docu circumstance exhaustion might not be required in that case two at the same question would apply the question would be was this issue squarely in play did the parties have the opportunity to add a reasonable opportunity to so this case is a great example of where the issue was clearly in play and as your honor suggest there may be other cases if there were hundreds and hundreds of potential options where that may not be true but it's certainly it's true here do you agree that commerce never actually considered the issue exhaust argument i can see how the court would think that there's an inconsistency that i'd like to briefly describe a bit of procedural history that might clarify so before the c i t the plaintiff's only argument regarding collapsing was that congress made the wrong decision on the and the c i t sets that out at page seventy eight and thirteen to fourteen his decision and the plant that the c i t itself understood the plaintiffs to be arguing that commerce had implicitly considered the issue but so that's that's that those are the issues at play point out it says that when congress will collapse but the important thing here is that it says the key criteria is when quote the secretary finds that there is a significant potential for manipulation of price or production and so that trigger has not occurred here that of the secretary finding and that indicates discretion in commerce so simply because congress did not write out its collapsing determination there's there's no indication that congress thought that there was any significant potential for manipulation of price of production here can i just ask you a procedural question i know you're out of time but if we agree with your exhaustion what do we do we have firm the c r t c on different grounds or we do we conclude there is a legal error and the exhaustion and decision and send it back for a decision consistent with our this is the best the best reasoning we believe would be to affirm on other grounds because the only reason may please the court i'm nancy noonan from the law firm of aaron fox on behalf of two bail energy services and difficult essay for short we call them collectively just to go just to briefly revisit the notice issue again as the court is aware the third country data for jessica was placed on the record almost eight months before the full immunity determination was issued and the parties had plenty of opportunity to make comments you know at that point they didn't even know what congress would be doing with that third country data so the parties had plenty of opportunity to raise a collapsing issue if they thought there was going to be raised second on the issue of whether constructive value profit was in play and should have been the parties were aware that they needed to exhaust the remedies i'll just point out that the department of commerce itself through a sponsor after the woman her determination placed on the administrative record that to naras a financial statement which was one of the options that was considered so again on may ninth two thousand and fourteen the commerce itself places this on the record solely for the purpose of constructive value and the parties had the opportunity to provide more comments than about whether the tonara statement should be used whether something else should be used he said before that before the final determine yes ma'am yes your honor and then finally in our case brief yes it was only a half page but that half page included the actual calculation that just go was providing that should be used for cd profit so the parties were aware of the impact using the cd profit rate would have on the margin and we also provided an exhibit showing how that was calculated so you know i believe that there was plenty of brief that parties could have rebutted if they if they were so inclined so from our perspective though this case is about congress calculation of constructive value profit this is an important issue which congress did carefully consider all of the parties agree congress was required to base constructed value profit on quote any other reasonable method this at the applicable statutory provision does not reference any sort of minimum profit that must be used but it does reference a cap on profit if a cap can be calculated so it gives the department of commerce a wide discretion on how to calculate c t profit and it's are and that is should be decided on a case by case basis and while it is our position that the sales that were used were in the ordinary course of trade the statutory provision that was applied does not even reference sales in the ordinary course of trade conducted and reviewing the data on the record congress pacifically determined that just goes third country sales to columbia were the best available in option for determining see the profit commerce specifically found the sales met all the requirements for c v profit  entity sure your honor it's our position that congress was not required to conduct such an analysis one of the affiliates affiliation alone does not automatically trigger in every case a discussion of collapsing there's plenty of cases out there where they're affiliated party transactions and commerce doesn't spend that doesn't put anything in the form and limit it to normal value in looking at the affiliation of domestic companies or if it honor those other companies were in fact one hundred percent owned by the parent company at issue this affiliate in columbia was not one hundred percent owned there were some other companies that owned the company as well if not a hundred percent requirement fizzer for no there is not your honor but it does show a distinction in this case amongst these companies as to why they were not on all fours exactly the same and therefore should be treated the same and we feel there was no evidence of significant potential for  hundred percent ownership of those other companies that were collapsed this ownership was a little bit over fifty percent fifty and still majority owned but again you've got other factors in play and the regulation on collapsing instructs congress to be but your honors here at the court should not do that and that's because your response your question judge hughes you know where congress changed their methodology is in the final debate they do do it all the time the key is that they do it in accordance with law and here clearly under the statute the regulation in their past practice finding you have transactions between affiliates of pardons and then not doing a collapsing analysis is arbitrary and capricious here as judge arena said even this information was placed on the record the beginning of the case there was no verification of any colombian data verification takes place prior to briefing so there is no reason for us  respondents colombian data when they did in the bother to verify it thomas on verification we did not i mean verification takes place in all investigations if you follow her condition or comments yes we mentioned chorused style and we would note in that c s e case from two thousand and seven where this court found that chorus had failed to exhaust its remedies it said and i quote this is not a case for example which the private party was denied you're excused from exhaustion not only where it is where you want to know it required where you were denied critical information and you were not denied any critical information here it was all on the record and it was being argued as a basis for methodology except instead of relying on one set of data for profits they use another set of data for profit they didn't go from actual value to a constructed value were for non of first facts to adverse  agree with you i understand your position or that the best i could say to that is what i said before which i understand you may not agree with which is that the parties were completely focused on the other issues that all of the briefing not all ninety nine percent briefing was focused on other that all of the theory was focused on other methods of calculating cd profit and we think you know it is an important issue that an important concern that you don't want the parties larding their briefs with arguments that may not be necessary and if you start saying any time you fail to raise an issue that that congress hasn't given you know this is relevant to the proceedings that's been exhausted and the parties going to have to start adding all sorts of arguments into their briefs and i don't think that  you know because the whole point here is for congress to make they consider the argument party as if it was suggesting hey this is a way we might go in house a court of raise their issues and they could have suggested maybe post a hearing briefing on this particular issue be appropriate because we think there are some issues