which was issued yesterday whether the defendant intervene or possesses jurisdiction to be in this court the court why are you arguing and you don't represent the intervenor you represent the united states i thought because the the court asked whether customs regulation should be in military i would like to address the issue all right the judgment fund would not find this case because the lower court did not issue a money judgment specifically the lower court issued a an affirmative injunction and shopping customs to affect the distribution court asked customs to submit the amount that customs would have been entitled to had applied in time there what's the difference between ordering a money judgment and x dollars and ordering that there be a dispersal of dollars in the amount to be posed to x because the court was ordering customs because i power to issue a money judge it has the power in equity to order possum's to comply with the statute the fines that customs is violated that's pursuant to the supreme court's decision in southern utah wilderness alliance all right therefore customs regulation would be valid because it would have to go back and collect any overpayments which were made or over customs has an obligation even if the core issue of money judgment pursuant to the debt collection th irty one u s c thirty seven zero one to collect any overpayments that were made over that collection is defined in thirty seven zero one as overpayment now to the merits customs properly did not offset distributions to dixon pursuant to six hundred seventy five why why shouldn't customs failure to follow the regulatory deadline have cancelled the deadline for the pencil makers as well as for customs itself because as this court and the supreme court repeatedly held this simple eilish of the statute does not necessarily validate but if it's going to relax the deadline for itself why shouldn't it have to relax the deadline for the other guy it did it provided didn't it provided the same sixty days for the other party gave itself more time and didn't give the itself more more than the normal time yes your honor in its notification was due the thirtieth of june not issued until the fourteenth of july so it gave itself a two week extension of time it didn't give it and not cancel the same regulations deadline that applies to the other party if that were the case your honor in this case if it dixon would have applied only fourteen days later dickson might have a more credible argument dixon applied for forty four days subsequent to the sixty by not fourteen days it didn't take that extra but there this is a regime where the statute creates a deadline all payments must be by november thirtieth all applications by u s makers must be in by october thirtieth then with that as the statutory background customs apparently has thought to itself well that's a little too tight on timing so what we'll do is we'll advance the day that we're going to announce and we'll advance the time that the american industries have to file so we won't have a last minute rush ok fine if that if those deadlines are going to apply equally to everybody that makes a certain amount of sense but once the deadlines the more the earlier deadlines of the regulations schedule aren't being followed why shouldn't the regime default to the statutory deadline under which provided that dixon filed by october thirtieth which they did there in time under the statute and then you have thirty days to process their application why shouldn't we be following statutory deadlines once the regulatory deadlines have been overthrown by customs itself the session it's not worth it particularly in that way it's worth it that distributions must be made sixty days subsequent to the end of the fiscal  however the notice is required thirty days prior to distribution not prior to that not subsequent to the end of the fiscal year therefore cousins does not wish to always wait the full sixty days pursuant to the distributions it's it it's technically not feasible to make all the situations on the sixty it therefore customs promulgated regulations the thirty day notice requirement merely requires that notice be provided thirty days before the distribution notice in this case are you quarrelling with my calculation that under this statute the distribution money has to be paid out not later than november thirtieth and the notification has to be not later than october thirtieth that the statute is worded in such a way that yes the distribution must be made not later than them are thirtieth however the search is also worded in such a way that the district that the notification is required thirty days prior to the distribution not prior to that sixty day deadline for making the distribution is specifically worded so that there must be a full thirty days notice prior to that distribution the statute leaves within customs discretion to make that distribution any time after the end of the fiscal year when that sixty day period and then provide thirty days prior to that to apply for the distributions i'd like to reserve this month so then according to you the customs notification permissible notification date for custom and they are it would be thirty days prior to the distribution so statutorily permissible yes the latest say would be october thirtieth however the sachin permits customs to make a distribution within any of those sixty days subsequent to the end of the fiscal year it only requires the notification to be thirty days before the distribution it's not thirty days subsequent to that to the ash to the end of the fiscal year and that's an intentional wording of the statute to provide customs that full sixty days to make the distribution and provide the full thirty day notice to the recipients therefore customs are you saying that t seventy five sixteen seventy five c requires distributions to be made within sixty days subsequent to the end of the fiscal year it also requires notice thirty days prior to the distribution if customs were to issue that notice on aug thirtieth or thirty first customs would have sixty full days subsequent to the end of the fiscal year within which to make that distribution so then if i'm understanding you correctly the statute doesn't guarantee any absolute amount of processing time it all depends how much processing time there would be would simply depend on how early customs issued the notification it would i thought you had said that there was a minimum of sixty days of processing time guaranteed to customs by the statute are you now retracting that i meant i misspoke there are there's a guaranteed sixty days if customs issues the notice thirty days prior to the end of this leader there's only guaranteed thirty days if customs waits until the act that actual and day the fiscal year which would be unmanageable for costumes with a large number and large all right thank you his well i have to confess i did not take into account the debt collection act so a until i thought about its impact on my money or you get to it supports your argument if you're going to have to discourage the money  overage that supports your argument that a you belong in the case and b you you got hurt by the ruling we certainly do but you haven't responded to my question what do you have to add to what the justice department council has told as to why the decision of the trial court should be reversed that's why we're here i think he wants us to reverse the proud court's decision so do you he's given us a bunch of reasons do you have new and different reasons why do we have the additional reason that mr silverbridge i dove into which is that there has been no showing prejudice to fix it because of the law he argued that in his brief i asked him so many questions that he didn't have much chance to argue all the points in his brief here but we have the president issues squarely presented to us by his brief and your brief and the opinion of the court below well i wouldn't have additional arguments beyond those in the that's what your honor was asking well i'm just trying to figure out what you can and this morning to what we already have in front and your answer is prejudiced ok if you're over would  want me to proceed along those lines and be happy to if you're satisfied with the arguments as presented in the briefs and i will take that into account as well but the they are going to prejudice stems from the fact that dixon takes the approach that once the june thirtieth administrative deadline passed it was under no further obligation to monitor federal register and indeed what was there any  effort to supplement the administrative record by nixon in which they could show some excuse some explanations some justification for why they stopped monitoring and how and when they finally discovered that the notification had been issued what triggered their october twenty third file and whether any evidentiary material sought to be added to the record below not that i'm aware of was there anything in the administrative record that would explain to a reader why they slept on there right from june thirtieth until october twenty third nothing would ever be right as far as i can tell so then your argument would be zero evidence of number of pencil makers who filed so what difference does it make whether the record is all the pencil case of or all the cases from two thousand and three versus the record as it was actually presented to judge garzon although we think that it makes a big difference because in determining whether dixon was prejudiced because of the choice thirteen filing the court should take into account the fact that numerous other claimants similarly situated did much of the fifth district did not assume that sticks in his claim that there was no distribution here and got their applications in in a timely manner so it doesn't show that the problem was with the publication date it evidentiary materials administrative record materials that she should have included that's just one of many allegations of error we believe there is with the government so that there was no prejudice and that the well if you're right  held and said in her opinion that dixon was justified in not monitoring the federal register for possible notification of a distribution affecting it starting july one and for the rest of the year now if we find that that's an error  it seems like her decision would have to fall so in our trying to examine whether that's a sound conclusion isn't it the case that the statute requires all collected money to be distributed every year and isn't it the case that in every prior year going back about a decade dixon got such a distribution and isn't it the case that in calendar two thousand and three duties were collected from the chinese importers and therefore there was money in the bank so to speak to be distributed in two thousand and three as well right and right i understand that now your honor but i do not believe that my client had full knowledge of history is there any evidence that you can point to that your client had reason to believe  that on or before december thirty first two thousand and two that all the chinese importers had stopped importing these pencil your honor the only evidence in the record that i can point to points out or reason why my client that's not the  question is whether you there's anything in the record that shows that your client had reason to believe that there was a sudden total stop in all chinese pencil importations prior to the start of calendar two thousand and three to answer your question directly there are no so therefore therefore your client knew that he should expect a distribution in two thousand and three like every prior year i'm not certain that you're  hadn't been known to have stopped so of course there's money in the account so of course they'll be a distribution in two thousand and three so of course they'll be some notice and therefore if i'm monitoring the federal register as of june thirtieth and i haven't seen the notice yet i can't reasonably conclude it's never going to come i have to reasonably conclude exactly the opposite it is going to come later than the reg call for it but it is going to come because there's money there and the statute says you shall distribute the money so therefore obviously dictions you keep looking at the federal district lawyer honester your honor i respectfully disagree because what you're asking my client do is impose a due diligence requirement on my client i understand the pragmatic aspect of your argument and i understand i'm not making an argument i'm asking questions so i can understand how the law should be applied to these facts certainly on our tickets to prejudice the prejudice question the standard discourse is whether my client has suffered an injury to interest the statute regulation rule in question was designed to protect it doesn't say anything about mike that doesn't impose an additional requirement on my client to impose a do it diligence requirement to say that if customs does not situation as to whether as a judge bars in the opine it was appropriate for your client to assume as of july first that there was going to be no distribution that year because there had been a notification already issued in the federal register and she apparently concluded that yes it was proper for them to assume there would be no notification issued between july first and december thirty first and therefore they could stop watching and it seems to me either that flies what my client agrees with it is that nine hundred sixty two way provides the only means by which domestic manufacturers like my client or expected to monitor notice so my client looks toward the regulation allies on that distribution and the statute says that there has to be notice and therefore you know it's coming and so to say well we were entitled to stop looking because we knew it couldn't come is just nonsense well your honor i don't believe that that's what the caseload discords put out it was set respectfully leave that this court will look toward prejudice and say and ask softly whether my client had an injury to an interest that statute was designed to protect what interest is this designed to protect several year on my client is a domestic manufacturer in the statute itself specifically states that if there is if the commission determines that there's material injury or threat of material injury by reason of imported manufacturers foreign companies that anti doping regulations should be passed and these regulations protect american jobs to protect american workers they protect american manufacturers like  sweeping statement of interest this is isn't the interest protected here ordinarily and properly defined it's the notice well sure you're on it and i think that might be why it is protected under the statu anti doping regulation and notice but to address that notice regulation i notice regulation just generally and pragmatically speaking protects those who are afforded notice under it well in this case what interests that this regulation is intended to protect and we're not targeted by the ultimate amount of damages because of this league filing but the notice that it said that properly we submit that that such a position renders the notice regulation completely meaningless or it is rather meaningless because if you take that position that notice is fine whenever it is opposed to the construct whatever is posted in the federal register with no regard as notice is fine whenever it's probably noticed is noticed that is delayed is excused if it does not prejudice an interested party well your honor as i said the statute the regulation and the anti doping regulation itself were enacted to protect client don't waste time editorializing or goals everybody understand what the burden men only question is whether there's prejudice here about understand what you're saying their prejudice was you had sixty days to make the file from july fifteenth when the nose was public sixty days not enough not if we're not given proper notice well was proper because the statute requires to be in the federal register and it was in the federal register well the regulation your honor says exactly when i stand that it was untimely under the regulation that it met the statutory requirement that it be published in the federal register i don't understand what problems well you're sixty days was in too short a period the federal register says would it says why are you handicapped why couldn't you file the way you filed in two thousand and two while your honor again that reads requirement due diligence and have said as a practical matter i ask you as a practical matter why your client couldn't have filed within sixty days from the register notice of july fifteenth your honor all the record reveals on that count as of my client follow suit is it for the two thousand three district i didn't see that the record of revealed that at all i saw attorney argument saying that you filed on october twenty third as soon as you found out about it i didn't see any evidence at all oh that's the only that's the only piece of record content that addresses that which attorney argument is not record content partner attorney argument is not record content then your honor that there is no affidavit saying john smith called me up on the phone on october twenty second said hell did you did you not know about the distribution that was the first i heard of it so i filed the next day there's no such affidavit in this record we have no idea when your client found out how why why not it's a total blank how is a total blank proof of prejudice zero evidence of prejudice doesn't equal a showing of prejudice well your honor i agree that there is no affidavit there but i believe judge parsley addressed that in the court of international trade decision when she said she said that you shouldn't have to look at the federal register one thing we get to july one if she's right you win if she's not right on that then i think you're in trouble i'm trying to give you an opportunity to get out of the trouble you'd still be in where your honor that's absolutely correct position of the case  if i understand that you would like us to agree with her on that point if we do as i say you win but assume for purposes of argument that we don't agree with her on that point then why then how do you still win well your honor i think th going well to prove i'm asking we're not getting an answer well like i said your honor and i keep sounding like a broken record prejudices a defined term before this court by this court and it says that it's an injury to an interest that the statute the rule or the regulation question is designed to protect and my client can show that it's protected manufacture under the bird amendment as you are so and secondly the anti doping regulation in question and third the notice my client how were you prejudiced by that to we the lead in the federal register publication you agree that if it had come out on june thirtieth you would have nothing to complain about the exact same words were printed so there's no evidence in the record other than the attorney letter that my client just assume that two thousand and three distribution were not app it relied on that regulation to instead didn't rely on the regulation in two thousand and two because that was printed late also but your client didn't stop monitoring the federal register on july first two thousand and two it was still monitoring on july second when the two day delay that mirror showed up in the federal register well i mean why did you do the same thing this year or two thousand and three what you're on are essentially based on the case law for asking the court not to prejudice my client for not assuming agency compliance in two thousand and two and assuming agency compliance with its regulations in two thousand and three there's nothing in the case law that says that customs can read it it's a notice regulations out of existence and my client relied on it was a notice regulations and it stopped looking up at federal register or are you saying that if  customs is one day late in publishing its notice then it has to sort of accept from any interest party any any requests for distribution of farms because after all it if your notion of the interest that's protected is correct then any company conceivably could come in two years later and say we didn't we didn't know about it and told why your honor directly yes i think that certainly a statute of limitations would apply to that argument and i would think that customs would have an argument also that it wants to distributions went out  you missed the bus my client wrote and asked costumes and alerted them of this issue before those two thousand three distributions even went out on my client asked was for a very limited around it that because of a late notice before those distributions went out the with the court should but he's gone arguing anything about the statute his argument is based totally on the regulation not the statute he was arguing that the purpose of the antidumping statute in the bird statute is to provide his client with a remedy and therefore his prejudice the purpose what is the interest that the regulation is intended to protect the customs intended to protect its interest in fully complying with the statute in having enough time its interests yes sure that  interest of any party involved and that regulation farther than the customs interests the statute provides the interest of the party which is the thirty day notice prior to the distribution the regulation provides customs additional time after receiving the applications to calculate those tissues should be probably said implication of a deadline on customs does that serve the interests of customs it's for internal record keeping and and calculation requirements but why would it have to be published in the federal register i know where you're going with this it published in the federal register to provide a time period within which it would publish that to do it is to provide it and then to print it print another regulation fifty one fifty nine one sixty three which protects the interests of the parties that gives the parties the sixty days which certainly protects their interests the final argument is an appeal number zero six dash ten eighty two med red ink versus tyco healthcare