final argument is an appeal number zero six dash ten eighty four pm versus united states miss mccarthy good morning fairly welcome demonstrated no prejudice there is out to the seventeen day to larry and it's knowledge that petitioners have requested the minister even do you think that we could flip around the prejudice thing and say that the government has demonstrated the brief i read that there were was a seventeen page de lay between the day that pam should have been served and the day that pam's attorney got actual notice by reading the federal  order to compensate for the seventeen delay data lack ok another word was the twenty nine days of extensions throughout the whole period of the about a year that the investigation was going on the calculate somewhere i thought i saw six yes one for fourteen and one for fifteen right at the start of the period of the year or so and then six more spread out over time and we said then that we set them in our hand that  it is the consequences the conclusion and this is the precise terms of this regulation are not satisfied is the agency powerless to commence the review now is this is this is about the consequences for not provide the service in the case with the departments of initiating review and also doesn't provide for service in the case that respect and interested party requests review congress has the discretion to add additional respondents to the review those additional theoretically ran a i don't that's not the purpose of the service well because it doesn't cover it doesn't provide complete coverage when you know what then is the purpose of the service that's a good question and we believe it's just for the if we can't say that service of a complaint against me as a defendant in a district court lawsuit was just housekeeping we'd say that service of the complaint on me is the defendant was a critical act to start off the litigation as a legitimate litigation that because this is routine service throughout the course of ministry the proceedings the agency doesn't wish to provide the paperwork itself it requires service of case briefs i mean it simply is a service requirement but we're saying it's simply a service eight respondents in this proceeding and so the year long effort of the commerce department would not be in vain if it's rescinded is to pay him because it would still stand as to the other seven it's a little it's a little hysterical it's a little over the top to say oh all this total waste of effort and frustration of purpose and trade laws aren't being enforced in our time up one of eight defendants the others were served there's no question of rescission as to the other seven we're just talking about whether this company wasn't treated fairly under the procedures as structured by the commerce department itself it didn't have to issue this regulation and it didn't have to say what it says but once congress chooses to issue such a regulation and it does say would it says why shouldn't we require that congress follow its own regulations  lation what what would be what would be the consequence there would be harmful to commerce for noncompliance with this regulation if rescission is not available wit the plaintiff fifteen total fifteen minutes is over already expired well we might have confused counsel with the lights here mr smith to give you the two minutes but only on points not exporters and commerce and nobody can initiate on that because our different regulations case requires that you specifically name the exporters you want to review and what's the reason for that the reason goes back to notice just to show us the question what's the purpose of this regulation it's additional one minute in addition mr simon will hear from  thank your honor i'm david simon and i represent pan am the respondent below zero we just heard something very interesting that this is a redundant regulation one doesn't usually hear over redundant nachman some statutes or regulations and i don't believe that is a redundant regulation but i think there are two purposes to it that's the core of all of this first of all when a company receive the the letter they needed a review it's true that commerce has to initiate but it's also true that there is a lot of play that happens during that period for instance in the second or third of these posterous the petitioner name something like thirty responded it's commerce expressed informally to the petitioner that it didn't want to an issue at all thirty views because they didn't have the personnel to of the notice requirement in a case like this you are i believe in a case like this the purpose of the notice requirement is to protect american exports are is when they are subject to third country  think that is why the regulator that's there that that can't be right if commerce can and parties who are notified i don't know those precedents where congress could already so we weren't was seventeen days later then you should have gotten notice under the regulations and then you were given twenty nine days extra time to answer the question err what the and why there needs to be any judicial intervention i could address prejudice but first the our position is that we don't have to show prejudice because the rule is protected and important right on the issue of credit you haven't defined what the right is in this case where the seventeen days and the late actual notice were made up for by extensions totaling twenty nine days just that the when you're delayed by three weeks at the outset well what i'm trying to get at is what is your basis for saying an important right is granted to you as a respondent and by this regulation my basis for saying that is commerce believed until this case that it was an important right because they made a separate read well you know seventeen additional days to work on the case if you would got notice under the regulation you didn't get it therefore you were seventeen days behind where you would have been they granted almost a month of extensions and it's hard to see either prejudice or the violation of a substantial right in that scenario at least it's hard for me i think your honor that you hit on that earlier in the day when you what you said if i'm not served with a summons and complaint in the lawsuit it this is a fundamental expectation of people when they are confronted with the american system that they why can't you go with people's expectations and we're not dealing with constitutional law because your argument is grounded exclusively on violation of the reg not some kind of broad due process contention so whenever foreigners may perceive or whatever due process it doesn't how are we just decide you can't flip a coin i think you can decide by looking in the place of the regulation why are there two regulations for service and only one of them one of them pertains specifically to this instant in time when the petitioner files its request for he she says so the commerce department xerox machines won't get worn out by having to me copies of everything for everybody and distribute them but not so you are because there is a general service requirement other than this specific one that relates to review requests this this rule says in addition to the service requirements under the other telegraph so what we don't we don't generally concede that regulations are redundant if this regulation is here it's here for a reason and the reason is we're not doubting it's here for a reason we're trying to get the two of you to explain to us what the reason is and how one would know that is and i'd like to think about that just for a second because in this case what happened the petitioner if as far as you can see from the record simply fail to be cognizant of the rule they filed a defective request and the con and what the petitioner did was to serve the people who had participated in the fish but because pam wasn't on that list they didn't pick them up they should have the rule told them to they knew them because they were in litigation with family but they failed to ok and what happened next commerce got the review request and they also were not cognizant of their own rule they didn't issue they didn't make the decision in the interests of justice require to initiate the process i'm not sure if it was before the initiated read roughly contemporaneous yes all that is true but you know it was not me it was another lie but what is really clear here is that congress wasn't aware  did not make a decision to go forward with this review in spite of the failure of service congress just defaulted it for a cop didn't have a rule and then when we got all the way to the end of the case of the case brief time and so forth ok the issue came up but back in august of of the year of initiation there's no memo on the file it says the interest of justice requires to go forward even though i am with and serve put what about the issue of waiver you sought numerous time extensions and got and each case about half of what you asked for as i recall and only if i'm recalling correctly after a year of commerce service rule and said because of the violation of the service rules were late getting now i understand that but rescission was not asked for until after the entire investigation was was completed i wish i could answer otherwise but you're right you're right now why why shouldn't a court look at and say hey wait a minute maybe maybe that's just too long a delay maybe that constitutes a wave because the counsel for that time did at that point with the four percent margin which is commercially nothing nobody nobody would go through all of an empty dumping review voluntarily in the hopes of improving a four percent margin down to three or two and a half and i mean it's just not a not a game of chance that any response would take that empty dump it is anathema it's it's a very difficult game for the clients to play and they don't they don't take it reflects that you haven't had a partner or associate who's listed as being admitted in his mere turkey that's a kind of unusual letterhead your honor if i may if this investigation implicate but it was just such an unusual letterhead that i couldn't help notice that well congratulations to you anything further on on your defense of your own i just want to touch really briefly on this one don went the other way but there's an awful lot of analysis in it and it's it's a difficult but interesting decision in the end of the day if there is some sort of harmless error where the government has a burden to never able to put its best efforts into oh we can't decide that now we can't let you testify on that idea that's that would require some kind of record development and trial court a fact finding is the judge mayor of reminds us that the public or talk goes to do fact finding so we don't want to begin doing that here i think we have your argument well in mind thank you and this mccarthy take your time i think good expired if you have something important to to add to you may have a minute