f and the supreme court's recent decision in soul the bird amendment can still be construed as requiring a threshold eligibility condition that the mastic producers publicly express their viewpoint that they support  checking off a specific box in response to a single question on the i p c question the second question is if so whether tasted the met that requirement by checking off the support box and its october nine hundred ninety six women or a face question questionnaire they expressed in the absence of a few point they took no position you haven't seen the final question and they have given it to us no your honor they took a very limited view of the record that the only thing that was relevant most the one question and that's all that but on the questionnaires and that's all that's why i might add that chase if he was involved in the organizing effort of the petition but this is not information that's on the record because it wouldn't be on the record there are two groups competing to file a petition and chasen was a member of one and not the other in the other file that does this case really turns mr schorr on what does support mean why wouldn't we defer to the i t c on that this is a statute which they had a minister and they made it quite clear that failure to support throughout and marginal supported any point was not enough on why would we defer to them on two reasons your honor first because of the first amendment issues involved in this case the i c c unlike a federal court has no authority to rule on the constitutionality of a statute but i think that's behind this in the mosque and application i think s k f ruled that you can't base a a a government subsidy decision solely on the viewpoint expressed on whether you support particular deference does not apply in these types of cases because of the lack of formality and rigor in the agency decision making process under the test the supreme court articulated in need third you're left with skidmore deference rule we defer to an agency interpretation only if they provide adequate reasoning as to how they construe the support requirement here they've told you they didn't construe the support requirement at all they viewed this as a factual question as to which box and they just decided that it was the last one in time so they did not the statutory there was a court had to construe support as not being met by your partial efforts on the first and no efforts at all on the second question not partial their at least three petitioners there are these three companies that answered the first question are with this part and did not answer at all they said on the record if they would put it on the record but it is on the record of the underlying proceeded ok but it is in the before this court and you know there is no record before the court all they put on the record was was the this case come up on a first amendment challenge like s k f in s k f there was no record before the court the court found it necessary to have the clerk ask for documents that were the case and and you you may do the same here but i don't think the i p c disputes that there were three three companies that didn't respond at all to the second questionnaire received benefits there was another appt did the same thing to chase in the except instead of checking off the analysis of i t c date up that the provided factual evidence to refute the petitioners case that this emitted an economic analysis that they presented expert testimony against the position and even went so far as to introduce the testimony of other executives of other producers in the proceedings as evidence opposing the petition there is no dispute that she needed took no action was to support to oppose the petition the actions they took to support the petition work to provide complete answers to the questionnaire responses and to the extent that still allowed to be considered as a factor they took off the box support in the first questionnaire they align themselves with the petitioners so it was the statute says by letter or  support the president's economic policy or i support the war in afghanistan that's an abstract expression of viewpoint on a public policy issue that's protected by the first amendment and they said that can't be the basis for awarding a subsidy so they said we construe the statute and this is a direct quotation quote to reward actions friend litigation support post brenna rather than the expression of believes that's our position in this case that you must construe the bird amendment as the wording actions because actions are not protected by the first moment in technical terms on the first amendment the distinction has to be between expressive activity and non expressive conduct whether you support or oppose government action is expressive activity under the first amendment the government can not burden that through the denial of a subsidy would you did take action in this case you've checked a box or said that you do not take you take no position in the front of us and geisha you made the deliberate choice why you claimed today that that's not an action because that's expressive conduct at that the distinction under the first amendment is between expressive activity and non expressive conduct just as in bare feet the state board of our zone of the state cannot you deny you a bar license they can't deny you a benefit on the basis of your expression of protected expression that's blackletter first amendment law that's why this program out of its way to have a saving an unreliable basis not only in a unconstitutional basis but an unreliable basis for a wedding a benefit our position is you can't look at that questionnaire at all you have i'm sorry you can't look at that particular question all the petition support  you have to look at the conduct up as a whole of the party in the case to see if they supported the petition erst or are they opposed and you kind of were based on nonexpert of conduct and long as you like to see him out of time mr schorr i would thank you patch gallagher on behalf of the united states international trade commission as we stated in our papers this appeal presents a court with a very simple question did the commission act reasonably when it concluded pursuant to the bird amendments petition support letter and say i support what you're doing but i'm not going to answer your question their experience they were the statute on this fence is is meant but that can't be the policy that that statute was supposed to implement court was trying to do save watts what is this construction intended to say it was intended to save the requirement in the statute for any indication of support by letter or through questionnaire that was intended to state and then what is required beyond that beyond that is the limiting part once you get it once a party has expressed or indicated its support for limiting the limiting part of the construction was there has to be some sort of active participation in s k f the court found the provision of questionnaire responses was sufficient to meet that criteria of active participation but if the purpose of the statute is to reward par who actively support or act with or actively participate to initiate or support a petition that leads to didn't hear any denial that they fully completed it so they tell us they fully completed it but on the box says i take no position aren't they really saying that we don't know whether that m p or not and so the facts and scaffold were significantly different and whether there are lines to be drawn whether there are presumptions against the petition here for despite having provided all of the requested information as has not been denied they declined to draw a legal conclusion and say we support your action they didn't say we don't support the option we just said we don't know  but the statute is very clear about there's two classes there is those who support and everyone else the statute rewards it's intended to reward it stated in the  court's decision in s k f it thirteen fifty two the purpose of the statute is to reward parties who initiate or support who want to show who provide information and the legislative history i think is quite clear this is that it's opposers and the neutral parties the so called neutral parties how they are required for instance if we camp is to provide information even if they're don't wish to participate in the proceeding  is the provision of information well also to act as a cheerleader and say you know good we're the united states perhaps your honor but it would seem plain language of the statute is letter or questionnaire response so you could have only provided a letter and you know other information and you may think that that would make the statutory requirement sydney mobile that are and say i support what you're doing but you're not going to get any information on me it would have been for s k f it wouldn't after a scale and the difference with s k f has s k f implemented the saving construction in order to they filed a questionnaire and i just understand your hypothetical that they filed a questionnaire but they did not check the box right it's not an indication of supply on the file on the file rather it would depend it's hard to answer a pure hypothetical it would depend on surrounding circumstances but for those sorts of things the staff usually follows up ok did you use the information provided by p s just p s they said yes you're on in the in the both the preliminary and final termin so you go to the information they provided and used that to reach your final moment material injury yes and ending their statement take no position now and to me take no position that the initial stage really means something because you is actually the more important questionnaire than the fill in america questionnaire because in the final questionnaire the data that is contained in those questionnaires is the data that the commission uses to make its final determination its final determination is the one that will drive whether there is an order or not if the commission goes affirmative in the final there will be an order the commission goes on affirmative in the prelim then you're going to have a final face investigation but the final phases where the commission makes its ultimate decision that will lead to the order or not please please please so when they say we take no position on support does that mean you then discard the information in the question there is no your honor but that information you asked for yes your honor but either there are a supporter of the or not and that goes to another question the information is used to determine whether the industry as a whole is essential including the take no position  purposes of the terming material injury to the domestic in the story but there is a component of that that the commission considers whether the parties are there whether the message industry supports or not the petition that's all part of the citizen the actual injury determination is uses that data yes but there is a separate determination made about whether the industry as a whole supports or does not support that they have completely misread what this court's decision as k f is about and what it means the fundamental determination it was made in the s k f to turn in the case was that the support requirement which which challenged as being unconstitutional under the first amendment was not unconstitutional the same thing limiting construction or whatever you want to call it means precisely what it says and nothing more than that they've twisted it around to the extent that they believe that this support is essentially somehow participating in the i t c material injury and that investigation and providing in response to questionnaires that's not what was intended to support requirement meaning having checked the box for support or provided a letter indicating support was sustained but what the court held was that in a circumstance where a party simply tries to hedge job bets receives a questionnaire from me i can see checks the box saying do you support this petition and does nothing else should not be seen as t customs in the way the bird amendment is administered it's the division between the i t c and the customs and border protection and in restoring that it is true that the i t c makes that determination of the list of effect the domestic producers but customs is actually the party that is responsible for making these just abuse sions and in these this case and in other cases pending in the co cases as to whether the party is in a d p because the statute specifically directs that decision to the i t c it's pacifically states and in sections subsection d of the statute that the i t c will determine by reviewing its records and looking for those producers who had supported the petition through questionnaires and and letters that's a matter for the i t c to determine and after they have determined that customs makes other determinations regarding whether or not there were qualifying expenditures by the party that would entitle that party to a share of the distribution and whatever divisions there need to be amon know in response to the original determination of the c i t in this case which held that the statute was unconstitutional customs henri man did make a determination for the fiscal year two thousand and two and two thousand three but because we are representing also the united states as well as united states customs and border protection in these cases we have been taking the lead in arguing the government's position on the constitutionality of the statute and we did so in the s k f decision and getting back to my argument was that what happens if we find that there are one indication of support is sufficient and they're entitled to over a million dollars for all that come from look what ended up coming from the special account there is a special account which is currently still accumulating the liquidated any dumping encounter veiling duties on various borders and in this particular case as entries are being liquidated money that is currently in clearing accounts th customs maintains while those entries are still based on estimated duties though that those funds enter into the special account and in if a city was successful in the case that's where  additional money would come from the next the next distribution that special account would be reduced by and now which was in the region with the amount that customs said it would be to social your testimony is that the monies amounts are very high or at least at the time were very high for example the one point five million roughly that chase sydney share of was was a very small amount might have been seven in this amount of money so that distribution would be made to shea sydney and that special account being reduced the amounts that would be distributed through the normal  twenty eleven distribution to other affected domestic producers would be reduced by that amount thank you mr wright i can see my time yes sure you have a little yes well i mean i'm here with the latter also president not at the table we represent the crawfish processors alliance and we are the people who built the train and laid the tracks a shade be part of the edge of crawfish producer with and one that's affected by the imports as determined by the i p c and one that's protected in a ford relief under the antidumping duty order with a big part of the affected industry well they get the relief of the order and that has always been the case prior to the bird amendment there were always free riders but as someone who has organized doping petitions not this particular one it was a little before my personal time in that but the hardest thing is to get the industry organized there were always be people who don't want to pay there will always be people who don't want to take a processors alliance they may have been involved in some earlier group i don't know but they were never a member of the c p a so that support in this context doesn't mean do you have a conclusion about the dumping law and whether they're stopping it means are you on board in this action or are you part of the group of people that once relief has been providing information that everyone is required to provide information to the us i t c i t c has subpoena power if they want to use it i've seldom seen it used in fact i'm not sure i've ever seen it used but it's in terms of providing information everybody does standing to do even initiate a petition to spam or set the national standard you have to have an indication from the members of the industry whether they support the petition or an arm that is correct and did not sunni shia in this case indicate that the support of the different not at the initiation stage they supported later that checked the box that said yes we support but the problem is that in the later questionnaire response they said well yes and no to someone who just said yes you're ok then said the position they said no position and that's where the confusion is if they had just said yes and then held their peace you wouldn't have this conflict between their statement had they said nothing at all what would be of the outcome in your view i think if they'd said nothing at all baby i'm up in a much better position but having said take no position affirmative the way stated we are not saying yes we support then they put the i t c in the position of having to weigh one answer against the other the i t c took the later thank you mr steinberg now before you sit down you had a dispute with our clerk's office over the clerk's office would you make that effort in the future thank you your honor yes and if we have another incident then you make it an opportunity to talk to me again very good  unconstitutional to award a subsidy solely based on checking off the support office of the i p c c position makes no sense an unconstitutional condition is unconstitutional as a so condition or as one condition among many it cannot be the case then that the court found it unconstitutional to rely solely on the support question but constitutional when they also actively participate it  has to be that the support condition itself is unconstitutional and here we have the exact flips out just as it is unconstitutional to award a benefit to someone who did nothing more than check off a box record indicate their motivation for the amount of patience of the amount of participation and support for the investigation if the same as every other non petitioner again there are two classes of beneficiaries under the c d s so it is written there are the petitioners and those that indicate support by question their response is no question petitioners do more they initiate the case it typically supplied supply witnesses at the hearing most other people who support petitions do nothing more than complete the two questionnaire responses and here chasing me did more than other parties that are receiving benefits because they did answer to questionnaires fully not just once it has to be but the case that congress intended the benefits to be tried it to more than just the class of petitioners the other participants typically do nothing more than fully answer questionnaires and judge newman i think you have it exactly right support to be providing information that's what makes these cases analogous to keep tanguay says to government reward cases when somebody answers the f b i list in and turns in a criminal in a system that conviction that's constitutional and doesn't raise a first amendment issue because all they're doing is providing information up to a relator and it keep cam pace under the statute they have to substantially contribute to the prosecution of the action that's non expressive conduct it's providing information it's ok even though they may be required to and they can be compelled through a subpoena but it is typically the case that many parties do not answer a question as the commission is required by law if it were in this situation to determine which par crossed it's an expression of viewpoint and that's protected by the first amendment they have to base this determination on non expressive conduct and that's what the court held in ascap they said it's not enough to just look at the questionnaire it's not enough to just look at it in awarding the benefit