the argument next to number two thousand and nine eleven fifty police in industrial against the united states asks for a scope ruling the government gives us hope or and i don't see anything in the statute that would preclude gleason as an interested party from going to the c i team getting tradition we feel you're telling me seems to be that course the end of the opinion course and all about the well that the exhaustion the application the just in principles is subject to the discretion of the judge of the court in international trade and where congress is not clearly that speaks to judicial discretion not to hard and fast congressionally mandated jurisdictional rules in the sense that we most strictly apply the term jurisdiction  and that seems to be the case here that we are applying the term jurisdiction to animals that may not all be in the strict sense of jurisdictional i e disabling of a court to take any action whatsoever as this doesn't strike me as being this statute does not strike me as disabling the court from taking action and getting it authorizes the court to take action in appropriate cases appropriate is defined by the co contends that they failed to raise a subsidiary issue and that's exactly why this case falls within the discretion on the court of an actual trade in the international trade actually explained it was exercising introduce stuff that got the up that for them to introduce things they had the opportunity to do if jailed to meet their burden of proof you don't get do overs that's how i understand his aggression argument to be framed so he could explain why that's not accurate it's not accurate they stated in their scope ruling request simply that the courts did not have a projecting hope that that was that was the extent of the factual record so to speak brought by that sense of purchasing at that time simply a gleason had gone into the c i t and said we don't want this that there would have been a standing issue jurisdictional bar if they did not raise the issue initially yes you are broke but you are saying that this converts from a jurisdiction deep they are deemed to have party status and that gets them into the court and your position at that point is that the court and has and sensually freehand short of bad faith or manipulation first part central purchasing the level of proof of forth by central purchasing them the information the administrative record submitted it would be quite similar to the information submitted by cleese number one  to exercise its discretion then you're saying that discretion is extremely broad at that point the court has to articulate there has to be justification for this question in this case there were numerous reasons why we believe the court did not abus question not telling us that the the court of international trade didn't i think in part you're telling us the numerous reasons you think that they would be within their power to exercise their discretion but they don't they didn't tell us any of reason that's correct though as part of the we review in that situation whether they properly exercised discretion when they said it was moot we never no need to do it reach the issue now i mean mood is a very general issue number two the nature of the proceeding below there was no preliminary ruling from commerce in this proceeding this is a this scope really proceeding was a less formal proceeding in a shorter timeframe and  the procedural course would have been open to them was not an appealable order in the government's view but the remaining decision the court retain jurisdiction of the case the answer is no so they really couldn't do anything for their first chance later that's not the only factor your honor that leads to this that leads us to believe the court did not abuse of discretion below the nature of the proceeding the fact that gleason didn't raise the general issue enough thank you good morning the distinction argument the court was exactly right below that it wasn't you have to remember there's another decision here we have a decision by the commerce department that the particular hand truck is within the scope of the order and i think it's important to acknowledge that what we have here is special expertise of the able since you're arguing that it was mooted it was correct to find that then you have to accept i guess argue window that understand but what i'm saying is you're saying you start off with the argument that well the whole question of whether the riemann was right or not is not right that's your first point to us again i'm not too sure i understand i don't think th made by central purchasing was moot was a correct statement the reason is because of course the exhaustion argument is non jurisdictional but it had to be raised when the government requested the they didn't raise it back the government took the case back has complete jurisdiction that are going to congress as the jurisdiction over the case and within that jurisdiction develops the record and says now this particular  particular ham truck is within the scope of your and at that particular point when it goes back up to the court to decide whether armors his decision was based upon substantial evidence that's the first time that central purchasing raised the exhaustion so i ask you the same question i asked you co counsel when should they have raised it instead of when they did it they should have raised it when the justice department requested three and the mirror and they did i think the key here is that we have a decision that this decision if you go back to this particular decision what we're talking years is totally a waste of time or think about the commerce department has made a decision  we've always talked about the expertise of the department how the court recognizes the expertise of the arm and specially when it comes to factual situation and what they're trying to do here by bringing up this exhaustion argument is saying well right that decision off the planet or it doesn't exist well the department if you wipe it off the planet earth utilizing this legal argument of exhaustion what where we're gonna do that where you're back at the beginning department can on its own basis bring up the case again we could raise another request for scope are you arguing that it falls within the scope and therefore they should reverse substantial evidence of the record aren't a waste of time again going through this entire determination they appeal and then when the international trade has to go through the decision again it has to come up to this court again it's a waste of judicial resources a waste of administrative resources so as to your question thirteen seventy nine of that decision that appoints that these this exhaustion requirement in there is also a creature not only is a creature of the court decision but it's a requirement explicitly of those by the agency as a prerequisite for have to see what the agency is going to do here there are the movement right there early in the case they're arguing that it's outside we responded to their papers and that was it fully what you're saying that it doesn't go beyond that or that it's based on what they put forth it's based on want they put forth we responded to what they put forth ok we were not supposed to intice a pay that the department was supposed to come up with a totally different decision not based upon what they put forward they said it was we don't have a project again she responded to that the question is the department came out with a totally different decision not based upon the projecting  that different than a preliminary and determination there is a scope require that they have to do words they gather additional facts it's a much longer proceeding i think it's under twenty days in this particular case they did not initiate a much more that ability for us to actually understand what the apartment of congress was going to rule and to exhaust argument straight remedies by many arguments contrary saying  listen talks about in united states talk about the fact that we did not put a lot of facts on the records in our show progress with due respect or honors our client came across that they're not as sophisticated appropriate sense of the word is it is there anything wrong and i think this is not just limited to this precise context but just generally as a matter of administrative law is there anything wrong with an agency whose ruling decision action has been challenge in saying to a court where the challenge has been filed you know what after seeing the complaint that was filed in an idea a review proceeding we're now very concerned that we may have gotten it wrong and we want to take another shot at this so please send it back to us rather than you going through the exercise of having to decide whether what we did is right or wrong so it's not just the isolated requests for one to remain that we have on record and by the way it's interesting how those documents going on the record i filed a motion to supplement united states and police party with an interest in it in industry or give of action contacting the agency and asking for an opportunity to be heard without many of those kinds of meetings and we don't necessarily wouldn't necessarily not as a judge but it but when i was in the government this rate wasn't unusual for somebody say we'd like to give you the benefit of our f your honor it's the fact that in an effect so the meeting that is useless is ok but a meeting that actually contributes something significant to the process is not is that that's that's that's pretty