the issue presented for consideration this morning is whether the petition support provision of the c d s so any is impermissibly retroactive under the fifth amendment due isn't that doesn't that only apply when there's some ambiguity about whether it's retroactive i mean it's clearly retroactive on its face correct it is you or it is you're referring to langrigg and progeny and yes i mean why are we having those go down that yes i or actually twofold number one to reward injured parties who assisted government for students of the antidumping laws by initiating or supporting anti dumping proceedings and number two to compensate injured by dumping but it also helped that retroactive application quote directly advances the government's substantial interest in trade law enforcement it did us it did and did i mean so  the due process clause i'm saying that your honor as it relates to this particular order yes i am saying that i'm saying that the retroactive aspect has to be viewed in the context of the order as to which schussler has clearly because i'd like to think because this raises a different constitutional challenge albeit under the fifth amendment as with equal protection in the us case case so i think this is different and yes there is a retro left active aspect and yes my opponents do agree because the retroactive aspect attaches new legal consequences to past actions so it is retroactive the question then application for burdening and its right to burglarizing still up in the here is a sufficient property interest to enable it to proceed on to the space prospect of e much of it in the early years but some of it in the later years as well so it would depend upon the extent to which our clients qualifying expenditures related to the qualifying expenditures of all companies that applied under the same dumping waters well clearly you don't satisfy that tax statute right we do not  always your protected property interest in making sure that his competitors who do that apply the tax of this that you don't get money no your honor because we do have we have applied we have been rejected that's why we're in court and my position is we have a property interest to protect in those funds ok i'm still struggling to understand what your property interested if it's my attempt and has a property interest property interest but nevertheless a property interest cognizable under the fifth amendment to process c so we have well i hope i've answered your question you know well enough to so i don't know exactly how much hundred we're talking about but it is a substantial sum ok over the course of multiple hears impermissibly retroactive well we have rational purposes s k f decided that the purpose of the burgman was rational our position is yes you have rational purposes but those rational purposes are not furthered by rational means that was also articulated in the s k t s k t rational purpose furthered by rational means the position is that this that th support provision as applied in this case is not rational for the following reason the answers to why it's not are temporal related to time timing relating to these qualifying expenditures and relating to the question  the qualifying expenditures also in the statute which formed the basis of the award are those in card after may fifteenth one nine hundred eighty nine that is to say after the date the dumping orders went into effect given reasonable temporal proximity between the date of the eighty orders and the implementation of the c d s the way the reasonable conclusion is that these qualifying expenditures bear some reasonable relation to the injury that was disqualifying expenditures war incurred eleven to twelve years before and over that entire period billion dollars over that period which explains why and how they received the lion's share of the money i feel totally lost so your claim isn't the violation of due process to you to your client to have timken and the other claimants qualify under the statute for payment they qualify the question is the question is is the petition support provision which disqualifies my client unconstitutional because of it but impermissibly nobody was qualified before the statute was passed right correct so it's not like there  with right that existed everybody was anticipating this money and then the statute was passed that said oh now we're only going to give it back when the statute was put in place yes for distributions yes the limitations were in the original statute is that steps that's one of our arguments and it appears in our brief but i happen to think the better argument is that we have a right that we have a property right in these funds to you say we don't think and the reason it's a better argument is because being added to put in a competitive disadvantage is not a constitutional constitutionally protected property interest right i guess that's right right so that's why i'm trying i understood what i thought was your argument and discussing there which was this issue of what the property interest is in this case and he has first if a clean articulated that his primary argument as i understand it was that in this case shepler's property under under the law this is the supreme court in the i can find it here that this business supreme court in the two thousand five ten a castle rock case specifically says to have a property interest in a benefit a person have must have more than an abstract need or desire and more than a unilateral expectation of it he must out there there's an imbalance in so far as the the end steve to be effective domestic producers who did provide assistance to the i t c in its investigation have been rewarded in accordance with the statute and under intermediate scrutiny which is which is much more exacting test than than the rational purpose test that it applied to the full protection claim in that case and that this court should apply to the due process claimant that issue in this case and so  we understand the playing field we have to ask if the court refused to take it on by the supreme court tonight sir so as camp at least for now is what the law as does it matter that this is a due process challenge as opposed to an equal protection our the argument made that it's not just a question of whether the statute on the face for instance for purposes of of relief would provide a differentiation between those who checked the box and do whatever us camp says you have to do and those who don't but that in this particular case because there's such a huge period of retroactivity and expenditures were so large during that period that the analysis should be different then i think that's the argument that your friend on the other side is made not that i'm aware of your honor i'm not aware of any authority that says that there's a that the dollar amount comes into whether or not this the rationally related to a legitimate government purpose test in terms of the actual years go to the retroactivity i think it's really important to note that what was before this court and that's with feet are the same orders that we're talking about here the antichristian bearing orders and s k f in that case like say four in this case send in this questionnaire provided it's opposition in one nine hundred eighty eight just like schaffer did and so factually this is this pretty much on all fours with this hearing facts about about the same scope of time that we have here and the exact same duty orders and that it held this was a rational this was a legitimate government purpose it was constitutional and then articulating the purpose that it was talking about in terms of the did claim that your honor obviously there's no way for them to demonstrate that we don't we don't know what they actually would have done was does it make any difference would it make any difference it doesn't make any difference to your question or i believe that and the cases schafer sides especially chemical benefits cases what you're actually talking about there is congress coming in and passing a law that says based on what happened years ago we're going to come in and impose an obligation on you and take something from you're going to have to pay money into this pond and so they're there specifically it isn't exaction upon these people and even in those cases generally were upheld what we're talking about here there's there's been correct and so this to the extent this has upset their their expectations it's only in so far as they did not receive a reward that congress specifically decided should be reserved for those who  when you disagree that that they've been deprived of a level playing field we would agree that it has affected the playing field but but again there's nothing there's fine a criminal sanction retroactive just means that it does apply to periods of time and that relates back and that's not face that relates back right it relates back to there's no effect from the it's a reward for the so you're saying it's a future payment for past activity yes sir and the congress to justify that easily but and policy ok i'm not buying your lack of right back to the  there's a rational basis for it so i think there's a rational basis for congress intended to reward parties for assisting in forcing the trade laws going back to orders that predate the enactment it makes perfect sense because that's the purpose of it whether you supported the government assisted the government in an investigation that resulted in an order and you did that activity before an accident or posed an accident it's still the same thing you're still of without industry support for a petition and during the investigation your own or you wouldn't know whether there was dumping or count when you can do it you can't under the statute unless you have sufficient industry support  and you can make your analyses without industry participation so without the industry interesting often participates in stellar poses or ws support so the participation alone isn't the end of the bring the petition you have to have sufficient support in order to conduct the investigation you need the industry to supply you with the information and it is true that that parties will support or oppose for many reasons some of which may be related to  changes by itself is not a is not an issue that is constitutionally worthy of a review a second judge well if you indicated that there was a distortion of a we're dumping continues it is because prices in the marketplace and not been allowed to return to the fair right so what what you're talking about and if you look at the findings of congress in that in that legislation you will suit there was concern that me you've got folks who may have just not been able to read the instructions or or ignore them and and among those small produce that may well skew the field because they're all domestics with no in international interest i would i would not talk about the cases before you but in this case they're well i am talking about giving you this is a hypothetical is a hypothetical you could have you could have cases where there would be people who didn't know about the case through didn't participate in one way or another who might find that they are unhappy about the outcome but that's not the different trustfully geisha more people if they don't sign up for a case don't get the were exact same positions s p f active opposition not simply questionnaire but active opposition at the commerce department active opposition at the i t c because in fact they were their parent companies were named in  relatively large distributions if there have been large continued dumping in terms of the imports that are there one of the industries that it pushed hard for the law originally was the steel sector there are literally hundreds of steel orders that are in place steel for producers tend to stop shipping so there doesn't tend to be continued dumping in those situations and their problem is that they have to go  after repeat cases of they do but the furniture cases which are often actually it's either there was there were large large amounts of money that were involved because it was large amounts of dumping that continued after the or our clients i can tell you would have been much happier and would have had much greater economic returns had the dumping ceased and not continued the reason there are just distributions is there have been massive amounts of dumping that went on for years and i to judge well it was there from the get go so i have some familiarity with this letter and what has transpired the the dumping margins of them in the major players in these cases in germany in japan in italy and france were very very low as the order mature and initially yes when this case was first brought there were massive dumping m as time went on these companies adjusted to that and there really wasn't massive amounts of dumping you can check it's a matter of public record you could look at the  digits these are massive companies and although we installed programs to control them thing you always had some maverick salesman making some crazy sell and creating a problem but overall the margins were very low and of course this situation predated the absence of zero so in the absence of zeroing there were no margins and this is evidenced by what occurred in the mally our interest the client's interest chessplayers interest in due process as it was as i mentioned but also that the government would not create an anti competitive market situation without proper notice without ability to comment this was in effect a midnight amendment to an ag bill nobody knew that so that was an interest is good in this particular case just as applied to as applied it's not just facial ok right i don't think i can argue facial because of your s k f decision i would like to but i think  butt is a competitive disadvantage more an equal protection issue than due process issue i think not it is an equal protection issue and of course you've already addressed that in s k f but it's also a due process issue in terms of the retroactive application of the statute and i do tell you although i'm sure doesn't matter and it won't matter for your determination but had i known representing this company in one thousand nine hundred eighty nine where this was headed things would have been very different i think if you want to stop a lot or never justify well how do i know that certainly we might have mounted some opposition this statute created