right before we begin we have a number of issues to to be a ground and a number of parties that would like to address the court and the court would like to try to assist counsel in sorting all of this out and what we are what we would like you to do is sue begin by addressing this actually the limitations argument a we'd like to do is is give each side five minutes to address that issue and then we'll restart the clock for the balance of the time fifteen minutes on in effect both sides to address the the merits of the equal protection and first amendment in the such other issues as may be relevant is that agreeable isha you're on very good well let's let's begin then i don't know who  the partner of justice on those issues instead i would like to live in my presentation to the issues raised by the time this question simply put the lower court did not have jurisdiction here at scabs appeal and this appeal s k f challenge commission's decision that  so at that time i'm having trouble understanding how the cause of action for you 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 right there would have been an estimate that's kept would have been aware of an estimate about what how much money would be available or how much money it would be in the pool under the ball bearing  first of all you don't know how much is going to be in the pool and second the wall you don't know who is going to claim or what the proportion of qualifying expenses are or are you don'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 s k f claim isn't about money s k f the claim is that the petitions are poor requirement in the threshold eligibility to be considered to get the model well that's an issue in their claim there that's an issue in their claim for the monies that they contend they are entitled to receive in two first accrued that's when they knew or should have known that they would never receive burd none of us could have filed a claim for monies then in august of two thousand and one is when thousand and one is when customs announced that pursuant to the statute the statute requires the commission to make a decision how could the super the money that nobody would not a calculate yes your honor but as a as a it sounds to me is that what you're saying is that they had to break their lawsuit up into two parts in two thousand and one they had as a constitutional issue i guess as a facial challenge and then in two thousand and five when the  but they were never going to get money in any of those years because they didn't meet the threshold requirement that they were petitioned support which the commission made in august of two that which was announced and august two thousand law well they may have never met the threshold conditions flood and say that they were their claim did not accrue until they were at a point where they make a demand for some money and and challenge that 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 year but the real issue for us the commission is one of the claim first accrued clinked first the crew for the very first time when the commission made a determination under the ball bearing order with respect to s k at that it was not a petition support and given that it was not a petition's order 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 did not they simply did not qualify when you so make a determination that was actually each year that the customs service now distributes money to tempt in or other domestic producers that fundamental constitutional right is violated again and the fact that  it's a continuing violation of a constitutional right is what gives us jurisdiction here you're right on the factual issues the where the when the start she was issued was was was was was enacted when it i see published it initial list and was a final determination of the facts either there's an agency decision made by the i t c in interpretation that statute in determining who actually qualifies there are situations outside that are not covered by the terms of the statute as to who will qualify such as trade association members and i t c decision as to whether individual members of the trade association could qualify for or distributions there are  situations in which the chefs in the situation specifically in which case in the initially in the unissued there's a preliminary i t c questionnaire that asked this question indicated support for the petition in the final questionnaire they indicated they did not oppose the petition of how much it's going to be distributed and there's no indication of who is going to qualify but our basic point is that we're injured every year because the statute and the application of the statute violates s k s right to freedom of speech based  applies to the tucker act and the pepper act you're suing the government for monetary damages for something the government did and that statute of limitation is incorporated into the process of those determinations on any dumping case under fifteen anyone i ever saw in the government jurisdictional both the i t c and tempt and should have raised this is an affirmative defense before the lower court they didn't do it they've raised it now in this case and on that basis alone there ought to be jurisdiction in this case one morning i may place the court franklin why for united states customs and border protection the court of international you're the only one for the government is going to speak to a constitutional issue yes your honor the court of international trade in our view plainly error in its application of the rational basis test one which is one of the most deferential test still in the law in holding that the c d s always 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 determination which are really left for the legislature to decide particular to suit let's assume for the moment the g you convince us about that until you still got the first amendment problem in in 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 reward people who bring the dumping behalf of the united states and things like that if we look at it as sort of like a keep em action help me understand how these proceedings work with the petitioner does the government favor my collecting the information and saying these people are dumping yours information to support that correct yes or are well the purposes could be seen in the way that you're suggesting but as we've pointed out in the briefing and as as the government's made in the arguments regarding the equal protection now says is that this this is statue of the purpose of this classification should not really be seen as one of hypothetically we do look at the statute as rewarding the petitioners and the people who support the let's assume that that's the idea that it's not just to compensate the most injured people let them somewhere within and the petition helps the government by identifying the dumpers and providing information in order to file a petition you have to supply a significant amount of information yes the petitioner is going to provide information regarding  the unfair trade practices committed by its foreign competitors the i t c is part of its neutral investigation tains information from various other parties and involved and is part of that is requesting that other members of the domestic industry and if indicate by checking a box whether they support that particular petition or take no position or post that as a practical matter one of the people understand 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 i t c questionnaire is in part or perhaps wholly to comply with its statutory mandate that when i understand that but that's not really my question my question is that if you support the petition in these dumping proceedings what assistance to those people supporting the petitioner usually provide to the government in the course of the procedure so they supply additional information do they incur particular expenses and what's the role of the sick or petition or 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 and in supporting the arguments made by the petitioner i suppose that that does happen on a case by case basis and to a greater or lesser extent but aren't doesn't ha question of us sent out to a new way 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 information provided by all of the  petition provide the same information as those parties that do that there would choir by law to respond to the questionnaire in the same way that those who have answered the question check and checking support are required to do so certainly there's no terminus who determines the who these companies are is their list that is maintained you find commerce of members of the industry in on these questionnaires sent out all members that in way i'm probably not prepared to answer that question and not specificity for your for your honor but this is a matter of of both the department of commerce and the i t conjunction they perform different roles in determining you know when a handy dumping or countervailing duty order is going to be issued when a petition is filed for raising and that is that is there something different that the parties who support the position of provided to the government has compared the parties that don't support this 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 the i t c has as the ability to require 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 andy dumping or countervailing duty order but it is not i f you 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 in trying to provide more information to conduct the greater in depth investigation of the dumping in there by assist the government respect for one to answer that question your honor to suggest that there is automatically a pot of money at the end is really twenty twenty hindsight at the time when these investigations are initiated and in fact most of the dumping orders at issue that of practical understanding of how these proceedings work in is it not the case that the commission rely on private parties here just as it does and three thirty seven area to supply information after all the government has limited resources and it seems to be appropriate and in fact the reality of government laws on private parties to do a lot of speed work for correct yes  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 in their for their buyer eligible under the classification the c d s a way to receive these fines and for those who opposed or took no position so they are also aiding the government in 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 its lot when you want to hold it unconstitutional well our position is that as a matter of rational basis review which is all this is that while it should be because this clearly doesn't and is content discrimination on speech that it was conceivable and in fact easily apparent on the face of the findings of congress that preceded the c d s always provisions and also the floor statements of senator de wine and senator byrd that this was intended to be remedial statute that was going to aid members of domestic industry that had been continued to be injured by dumping it subsidization that would not maybe not maybe all well and good that the question is if here has it within its discretion as 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 are you know if there were prohibition here if there was a prohibition on people opposing the unity dumping of petitions that would be unconstitutional right no question yes your honor i mean that's but that's not with this well so but the question is does it make a difference that this is just a subsidy you the people who make do the petitions and support the petitions that make a difference it makes a difference that the statute itself it does seem to be rewarding people who take a position the favorable to the government if there is nothing in that statute your honor that that indicates any attempt petition it seems to reward the position that you're taking well if it would have otherwise perhaps used the phrase favored 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 were guarding 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 it seems to suggest that by using this checkbox of support versus oppose that congress intended to for congress to believe that those parties who when asked that question a petitioners come to the i t c requesting remedy for a harm i've been harmed by continued dumping  subsidization those who either petition for that relief or supported the petition for that relief should be presumed as a matter of 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 shade sydney case the the court there in god and so we were we were intending to split the time and just go ahead in the answer judge takes question and then we'll we'll address the time quest certainly i i understand where we are we're honest 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 aren't enough and i am and i accept that but as a matter of first amendment law there has to be some set there has to be content discrimination or viewpoint discrimination involved in the statute and there is no way to look at those that are on the phrase effective 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  those producers that were seen as being more armed than others and the fact that the dame receive these benefits and that the other parties who have also aided the  government and anti dumping investigations by responding to questionnaires but who opposed the petitions do not receive that doesn't involve any sort of speech speech to sprint or content discrimination in  what the government's purpose behind this is afterall the itc's investigations are completely neutral it's a it's a non political non policy making body who timken 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 petition are or whether you support petition a that is independent of the passage of the c d s in a way that survey took place in one nine hundred eighty eight thousand nine hundred eighty nine well before the enact statute so the two things were not originally linked and in fact that goes a long way toward explaining how you can reasonably get lost in this case because when you hear the language do you support something it sounds like you're asking for somebody opinion and it sounds like the government isn't need asking you are you in favor of ops are you on our side when in fact that's not what the survey requirement is about all it originates from the obligation of the part of the survey requirement that we're addressing in constitutional terms it's the stand which gives money to people who petition to support the petition yes and doesn't to those who don't yes question is whether is i appropriate to reward people you know a monetary reward to people the petitioner supplied the petition in the in the in the manner in which you asked 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 or keep him statutes constitutional i believe they are under the first move i believe they are but i also believe the key to a statute has a very unique history which has been separately litigated on that question and i don't believe we to collect information to spend a considerable amount of money doing that to ferret out people who are gauged in dumping what's the matter with rewarding people who perform that sort of  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 to the entire industry but that then raises the question here is one firm who has gone through enormous expense as you say an effort to bring that to the governor it's attention but the government then has the obligation out of its international agreements to determine whether or not that petitioner is there a loan or whether he in fact represents the entire industry and so the a route 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 doesn't fact  petitioner represent the industry as a whole the government is trying to ascertain whether in fact the petitioner is by him self in terms of his complaint or whether in fact there's a major injury for the home if the only way we could sustain this tension on the first amendment by analogy to keep him statutes you'd say that you lose you're giving that up well i'm saying it's not necessary precedent of the key to him statute says that in fact the government can have a neutral interest and 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 he tam analogy suggesting that trade policy is not government policy no i'm not suggesting that but i'm also says 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 hasn't resulted in a major injury a material injury to the industry and then when that requirement is then transferred over to the 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 who's the person that in a key tam like fashion without regard to a particular substantive perspective who's the person that we need to subsidize to help maintain the i mean field as against this illegal with the language of do you support something because that suggests that you're asking for an opinion but if you put it in the context of the origin of that requirement it is instead and a pursuit of an of an end of a factual information as to whether or not this person actually is part of the entire industry that has been harmed by the foreign practice and therefore the first amendment is not implicated strict scrutiny is not required and as my colleague from the justice department indicates there is more than ample rational basis to find a relationship between the status of the petitioner in a supporter and the purpose of the statue the rational basis argument this court has the authority and should decide this court this case on a strict scrutiny basis despite what the gore court did these issues were thoroughly briefed first amendment equal protection based on a str analysis before the c i t and they've been briefed here and the appropriate standard review for you to apply to this case should be strict scrutiny and not rational basis to clarify a little bit about the any dumping question there seems to be a little confused do advance the any dumping was trying to identify the people who are dumping supplying information the contents of the petition isn't just a pro forma thing you have to do quite a bit of work it's there is there is there is substantial work to be done but it's  really the equivalent of prison in a prime official case that there is sufficient evidence to go forward ok so as to the petitioner what's wrong with rewarding what's wrong with the government and working somebody does that in my work with indicate the public answer the parishioners doing a lot of work it may not be sufficient maybe that will work needs to be done why why can't the government word somebody who initiated this proceeding one side of the supporter issue which is difficult does talking about the petitions what's the matter with the wording somebody who goes to this extent of doing this work at considerable expense in providing the information to the government so that they can decide whether to initiate any that supports the petition and would give that kind of benefit to a petition the city of so is written in a way that requires a viewpoint the expressed the international trade commission on an opinion of whether the case they support the case or not so  to say i was really have as we're ready to to make certain but but i would argue that it shouldn't be just the petitioner getting a reward from having filed a petition because there is substantially more work done by all the members of the domestic industry and foreign companies that have to go through a proxy a year long process submitting substantial data on finances shipments production economic status of the industry there to represent the industry there are first time what's the matter with rewarding somebody who does that i didn't say there wasn't your honor i just said that the statute is not written to do that the statute is written to remedy injury to a domestic industry and if you if the statute  appropriate box the position that your firm takes of perspective the petition that's not a factual question but that response based on whatever views the company has to answer yes no i oppose i support irrespective of an economic consideration with regard to this companies have other reasons from for answering that question oppose and have nothing to do with this case that question asked for a private viewpoint it's a mandatory response to a u s government question and that private viewpoint triggers whether there's a viewpoint that would express the freedom of speech is situation that it's that question and the response to supports the industry to meet this twenty five percent 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 saying that the point in responding to the question and that matter because of a decision having nothing to do with the any dumping case that's going to go forward is a right that they have under the constitution and by now benefiting their us i think if if if that were if i don't know i don't know of that's a subjective question i think a more direct question would be if the i t c were to determine based on the information they received in their questionnaire responses these companies look like they're really being harmed there are much worse financial shape and these us companies are that might be a legitimate standard basis on which to do to differentiate among domestic producers your question is a little more subjective and it could could possibly lead to interpretation of viewpoints that may or may not support of  trying to pursued this question suppose the stench of said the we're going to reward the people who are most helpful to the government in pursuing these dumb proceedings by th if it it's a criteria that's not necessarily indicative of a private viewpoint so if you have to get away from the criteria 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' if you support the petition by giving the necessary data to have the case initiated that is something else and it could be considered as an indication of perhaps greater harm than and therefore me that you respond to their questionnaire you have to respond honestly each other question here and and you are faced on that just responding to a questionnaire or a question expressing the viewpoint required by the us government  and the i t c every time it issues a determination in any ducking case affects foreign us policy because our foreign trade partners retaliate against the us government based i t c decisions if they think it and it's inconsistent with our international obligations it is a political the whole aspect of this is it was political also this case requires that a company like s k f express a view point in the context of a public forum the i t c investigation opens a public forum in which certain parties are matt mccall mandatory respondents and have to respond it also opens up the investigation to congressman consumers  disagree that the under the reason i disagree with that under the international agreements to which the united states is a party the united the parties have an interest in and i thought cases the relief goes only to private parties there's no the judgment the dumpings beer for the producers and that's a public policy determination isn't maybe we're talking about a semantic issue the government does have an interest in ensuring that free trade between countries occurs fairly the government does not happen interest in any particular anti dumping case and what the result of that case is it is not it's different from a kit and case and that it's not a private party stepping up and pursuing the government's interest in an i don't understand waste fraud and abuse why are petitioners who identified dumping if there is in fact dumping serving the government's interests the government doesn't like dumping it wouldn't happen in the dumping statute if it didn't  corrupt but that's like saying why does that you know the government has federal courts to solve civil disputes it has an interest in resolving those disputes but the government has no interest in the disputes and it just it's providing form it's also setting the rules and sending dumping is that the problem with the kid time analogy it may not be unlawful that it certainly can be economically painful it can be economically painful not to those aren't but and that's a difference because now because the government has has  i misspoke i agree with you but nonetheless the part of the statute reflects a policy decision and as i think judge de correctly  asserted let me put it this way i'm like a key tam case the petitioner and i dump in case it's not stepping in the shoes of the government and remedying a problem for the government it is stepping in its own that's the constitutional problem with providing c d s so it benefits just to the petitioners in that they are not acting in their individual capacity titian can only be brought up 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 you're not providing the benefits to the industry as a whole lot was placed the petition would be brought is just like saying in a class action is the name plaintiffs can recover seeking distribution of bad by dumping yes this was a petition brought for a different case and that'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 the basis for denying benefits so there are still constitutional problems if this statute were to have been written to particular a plaintiff but the analogy is correct the petitioner is the one who gets the ball started after the bell get started everybody has an equal role the petitioners the opponents and the people get no position in the domestic industry or get the same question are have to complete the same information and the commission decides whether the industry as a whole center whether the petitioners are injured but but isn't it possible that someone who is the supporter of the petition is going to put in more in for go to more experience in the answering a question dear and somebody who opposes the plate with the bird amendment that's exactly correct and that's the problem the bird amendment creates an incentive for people to support petitions and  this incentive for people to oppose petitions and thereby skews the information that the government actually receives well so what's wrong with that under the first moment that you say that the person if you will will reward you if you support the  legal services corporation and said you can use the money for all purposes but you can't use it that advocate a particular viewpoint on state and federal welfare laws the supreme court said that's unconstitutional under the first amendment because  skews what the neutral decision maker is receiving it skews the benefit excuse the advocacy they said is analogous to the limited public forum cases because they're supposed to have 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 i d c is supposed to be a neutral decision maker they're supposed to risk receive zealous advocacy of up both sides they're supposed people are supposed to feel free to give their honest viewpoint and the government can step in and pay one point and not another that's the problem with that there are three questions the perp really has an answer in the first amendment and they're  fairly easy and straightforward questions first is s k f response to the petitions for question protected private speech the only exceptions are protected speech are things like defamation  fighting words this doesn't fall within any of those categories the position that dr chemical advocated and that and the government advocates of drawing distinction between a speech that occurred in the past and speech that a person apparently has no support in any case the first amendment is not that fleeting the second question that's the governments act and discriminate based on the viewpoint that as an object of 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 at the statutory language and its and its purpose using the traditional tools of statutory construction what does the statute say this package statute is tied to speech it's tied to the viewpoint of the petitioner or domestic in the producer expresses on whether they support or oppose it ask yourself what the limits of the government's argument are if you accept their argument the first 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 in the election lawyer you do get rewarded for something to say you which is that the first amendment should be construed and the subsidy that every argument the government makes is that they will be defining the limits of their program and therefore the first amendment would be reduced to a semantic exercise that's really what they're asking me to do the argument that they advance here is the argument that was rejected by the court and alaska's the third question before the court is that just motor survives strict scrutiny nobody argues that it does it couldn't possibly the the the party seem to be in agreement that this statute and the classification is really not that similar to the situation of the later in cases where they are providing a service to the government and receiving some amount by state 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 views 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 them for themselves and the industry they are providing information that the government in part is we're 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 of 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 it's necessary to pursue it the statutory mandate of that particular agency and it's being used as a convenient means after the fact as most of these orders existed long before the c d s so way to provide a way of targeting those