five days one four zero four nippon steel corporation versus the united states southward tell us what you mean by improperly well i think specifically your honor this court in the pond three early decision the case told lower court that there are three specific things that should not do again in this case the first is to resign facts the second was to reassess witness credibility and third was to interpose its conclusions on issues relating to ensuring causation for that commission and what's happened here is that on each of intention well i think that actually that is one of the arguments we may but our primary consideration and our primary focus here is that our decision is supported by substantial evidence and should be a d by this court one of the arguments that we make is we is even if you've gone through our brief you'll see that what we do is for each of the issues that are raised here if you're probably if your primary argument is that he was the merits then why would you want to spend scarce time arguing that he was in violation of the mandate well let me your honor let me get to the merits i think that's a good quick quick answer which and i may ask you about  american the chirpy earlier point i mean this is about back in the about the evidence here is standard about conclusions and what i've been difficulty where is deciding the connection between the facts inclusive in other words a couple talk about whether or not it was the primary reason why the price was the primary reason for entry into this contract or whether whether it was one of several things the disagreement between the commission and the court is whether it was the most important factor or just on the list of important factors i think that's actually your last statement pretty cracked which is so how does that translate into the rebuff him that he will do the issue is likely to get him a question for you if you're saying how the trampoline we the facts actually don't necessarily lead to the conclusion the court drew primarily because the standard here is not whether the lower court or we had better arguments or the better analysis case but simply whether the  compels a negative determination in what we are here in our brief is that you can't when you look at the fact that we have cited issues like undersell their price sensitivity and substitutability of the  case that would support a reasonable decision on both sides but the fact of the matter is when we look at underselling growing through the this is the record a little more disagreement over disagrees with us the record here shows that underselling was growing and became prevalence in almost all of the large purchases in the market and you know i think that there is a direct correlation between that growing level of underselling in the market and it is that this case is really about what your old medals meant said that to do the substantial evidence analysis and decide whether the ultimate determination of the commission was supported by at least that level of evidence that you have to look at what detracts from the conclusion as well as what supports the conclusion and you seem to give a one word definition of how you do that because as i heard you use the word reasonable several times you're in effect saying if the conclusion was reasonable then that's enough no matter how much the detraction factor way and i'm struggling with that because it seems to me that at some point of powerful detracting evidence it couldn't be reasonable anymore so where is the tipping point how are we supposed to the thought when the contrary evidence that is contrary to the finding of the commission is both severely is it is sufficiently strong that the finding just doesn't have legs under that anymore helpful at least to me to say i have to be deferential yes of course we all know we all agree but how much so i think where is the tipping point how do you get the thought of whether the detracting evidence so undermines the support of evidence that the particular finding or the ultimate conclusion can stand up in the eyes of the law will see answer your question directly i think that as opposed to the specifics of the case like this i think in the specifics of this case our big too wishy washy it doesn't give me anything to put my teeth into the i was asking you for some help longer to give you some help here which is i think one of the things that's important about this case may give give some meaning to gerald metals definition up your suggestion suppose that there are a hundred findings by the commission in the case and suppose that in every one of the hundred findings a judge of the trade court said i think the detracting evidence is so strong that all one hundred of these findings cannot stand and then suppose that on the reaming in the commission give a reason in each of the hundred instances for why it reached the conclusion that it did despite the detractors are you saying that the mere fact that the commission has given a reason one reason court is that if our response to each one of those hundred factual issues of the court race considered the evidence considers all the evidence of a lower court going to do and then does a very good in reason the job of saying why  articulate let's say one hundred pages all the reasons why it's found that the cracking evidence not strong enough to overcome the supporting evidence and therefore has here and the fine ri said you know assume the quality of that announces by the commission did it if the commission's analysis is equality announces it is a reasonable analysis in the essence is this court says u s steel in other cases is the essence of the substantial evidence test is that what whether what we do is reasonable whether what our announces of is reasonable and whether we've considered the evidence in the record clean that attracts and provide reasoned analysis on  persuasive is is interesting choice of words persuasive if i really if the issue is are you persuading the trial back there is what you're suggesting to me is that there is a preponderance of the evidence analysis in the in the in the findings we've made is something that a reasonable decision maker could me even if there's only if you're looking at say there's ten reasonable decision makers eight of them fine the other way  and in response to those decisions the commission changes decision on remained so we're not saying that there's never a situation in which the court couldn't find today was a lack of still evidence but the issue is basically directing the commissions take a particular outcome is essentially something that should be done in your circumstance that's what i think that's the the supremacy of the supreme court by i s u richer and or at par and i'm trying to get you to imagine what we should discern congress intended when it legislated judicial review in the first place but it can't be that it intended a rubber stamp that ninety review but you wouldn't have the stuff and you don't have the appearance of it so if congress intended it to have meaning then how do we give it meaning you seem to be saying as long as the commissions explanation on me is not on its face unreasonable that's good enough but if that is a fair way to frame the pair then i think we're back to ninety nine percent of the cases will a specialized they have a condom is the price analysts and so on we have a handful of presidential you appointed commissioners who who have a background in this field we're just going to keep the courts out of it altogether because we're better expertise in this agency the commissioners will be a check on the staff the staff will be a check on one another the general counsel will make sure it has a proper legal overlay we just won't have to dish a review that would have in my view been a going to say at least for myself even though i concede i have far less expertise than the commissioners and their staff and i think i but but congress seems to not be worrying about relative expertise congress seems to want some article yes there is quite frankly a minimum a minimal minimal amount of winger because you have to look at whether the evidence on the other side of the case the other side missions or missions is so overwhelming that the commission's determination is the commission hunger pact what she did was to knock down many of the commissions back as legally unsustainable but that's how i read her opinion and one criticism of the have of how he got there was that precisely the type of waiting that she did in this case that you're not supposed to be doing under the substantial happenstance it isn't a situation in which she said well the the facts relied on by the commission with the exception of minus all the facts are lined up by the commission fact a b and c which commissions our way there in the point is that the only way you can get to that conclusion is if you say and this is what the court has to say that the commission's discussion of fact a b c and x point where what is the tipping point let's assume there were twenty five that factor that he was looking at and you're right that in twelve of those he does the my units he went beyond her role but in the remaining thirteen we really do think that he properly perform parole and indeed there was not substantial evidence by the on the record to support the commission on what are we supposed to do that but i think that's where you would still come in which is you would still specifically says if you have a series of facts found by the commission that aren't supported by substantial evidence and were reasonably analyzed and then a series of mistaken findings then you need to assess whether to remove those mistaken was sustainable on have to factor and reversible were not sustainable on the other half of the fact as she quite candidly asked what are we to do then will again i point out to appoint to the court when the when the law was put in place might hundred seventy nine it replaced what had come to exist in c b d cases of the novo review and was intended to supply the same type of review that exists for other administrative determinations and there are of course thousands of decisions including decisions of the supreme court where the objective of trial courts and the color course are reviewed it is not to replicate the work of the  a price sensitive product deemed relevant by the courts as it were deemed relevant by the agency in terms of whether one would expect movement of volume on the basis of small changes in price what is what last and we believe that is this court goes about examining the record that the starting document should be the second remain and determination of the agency because we think that there is very little doubt that this court will affirm the commission as having made a decision that is reasonable it is not simply a question of wayne evidence there is contradictory evidence in the record and what the court repeat lower court repeatedly goes back to is the fact that there were witnesses who stated we don't buy on price we buy a quality we buy on other aspects and there is a host of information that the commission goes through in great detail to say well they said this but there contradicted by this over and over and over again and it is exactly the province of the fact finder exactly the province of the agency that looks at hundreds of industries to be able to evaluate what one does with that type of contradictory information so we don't think that this is a difficult case is that a case in which imports in a period of investigation increased by more than eighty five percent when the domestic everything aspect of the domestic industry was in the line when prices were falling and when the tables of underselling done three different ways for the commission that for the quarter demonstrated over and over again the trial court be getting this so wrong how difficult is it is this is a case that screams out that there is causation and that there is underselling and hence the commission's determination which in my view is should be a sure so what we have then is one day of live testimony all kinds of charts and graphs and data compilations from investigative effort that we also have depositions know so it's kind of understanding of the core legal standard that price has to be that is the allegedly abnormally low price of the japanese canning deal have to be the primary reason for shifting to purchase more from the japanese and less from the previous us the makers of the same specialty deal no that's never been my that's never been my understanding of the law in fact there been cases in the past where the imported product is higher priced because it's perceived to be a higher quality in fact if you look at the record and what the commission cites to secretary man there is at least one of the purchasers who talks about the fact that there may be a price premium for the japanese product because of higher quality yet they are selling the product at lower prices against domestic product the issue in the prices being prevented from rising we had both of those situations in spades in this particular case very strong case in terms of the price underselling really let me rephrase it because i'm not sure it was clear in the post i'm and in addition to the foreign maker are selling at a lower price than the average price over by the american me so i start out worried about quality i want to buy foreign because i'm concerned about the us quality but in addition the farm prices are low enough that you know maybe not a realistic eight but this is hypothetically in that than the other that well it would be i think in fairness here and it would be a difficult factual matter for the commission to consider but if that were actually the case what one would expect to see is that there would not be other  in the marketplace you would not expect that that price would be used against domestic producers to get them to lower their price you wouldn't expect domestic producers to be lowering their prices simply because somebody chose to ship some volume to another to another supplier those things can happen in any industry in an industry like this where there are the cost of the tender steel is a very large percentage of the in product that the purchasers making the concept that price is not the major driver defies common sense but i think then that if prices more than a minimal back there that's enough even if there are other factors the greatly higher their powers correct in the way the commission would normally look at that if they considered christ not to be not to be the first or foremost issue is that they would be looking for clear indications that there were significant underselling and that that significant underselling was caught was in fact leading to some of the lost sales or movement in product away thank you your honor of like start by just clarifying what i think are mischaracterizations of judge response thoughtful decision in this case first it's very important her decision does not rest on her assessment of the credibility of the witnesses that is not the basis of her determination in this case rather judge astonied completely understood the clarification on her role that this court provided her previously and she systematically carefully and painstakingly went through each factual claim that the commission made each assertion each conclusion and she has stood those assertions against the evidence on the record and she found two broad categories of mistakes in some instances she found that when she looked at the underlying supporting evidence the conclusion being drawn by the commission was not supported by the underlying evidence let me give you an example we mean what th which was the to use to get to the particular binding with to a pen you waited an inference given the evidence really based on which it rested let me give you an example your honor if you look at footnote sixty two of her decisions that's an example where the commission had characterized a questionnaire response by one of the domestic producers in this case and the commission characterized what that questionnaire said she went back and she read the actual questionnaire and asked yourself the question do i think that the actual document supports the characterization that the commission is offering and in this particular example she found that it did not  film that and let's put it on that and some we've been talking about you know twelve odd twenty five let's assume that there are portions of her opinion where he was correct that there was a there was a lack of food stamp to lebanon to support what the commission has concluded in other evidence how do we get from that to affirm here's how you do that you look at judge resized decision and you review the evidence with her in a sense she's given you a roadmap to what she viewed as the problems with the commission's determination you see the number of instances you see in our view the vast majority of instances indeed all instances where she has correctly criticized the commission either for drawing a explain itself the court has reviewed three fact probably four times in detail the combination of the commission's determinations and judge for size review gives you as complete a record as you will ever have for your honor i think if you go through issue by issue and look at what judge responding pointed to as the evidence you will find that it's not really just two different views about the evidence her finding out the score is that on issue after issue the commission simply was drawing conclusions they did not have support either in the evidence the commission was citing too but also in light of the other evidence that the commission was trying to brush aside  the problem is it's it's it's very difficult on this record to conclude that he was correct in every single instance maybe there are many who were very religious is correct but not necessarily all and that's what we're grappling with what do we do if we don't agree that in every instance he correctly observed no substantial what your honor that's what the court did the last time this case came the last time the court thought there were questions that the commission should and could address further and so the court did order remand the problem is and this is really the the implication of the current standard  review which is why we raise the issue we think this case actually illustrates why in this kind of situation it fact is more reasonable to apply a did the lower court grossly grossly misapplied the standard to reve but if this court upholds its prior decision in atlantic sugar and continues to take on the responsibility of duplicating the work of the court of international trade this is the situation you come to with all due respect your honor you will never have it completely settled clean no more disputes no more questions on which the agency might have something to say the practical reality is there will always be a few minor unanswered questions as long as you look at judge or studies decision and you find that on the vast majority of issues she was correct and you then step back and as the court was discussing with the other parties earlier you step back and ask what conclusions can one fairly draw from the remaining pieces of evidence the remaining findings we believe if if if we were to conclude that he was correct on almost everything then maybe the outcome is not in d why is that a better answer the thing we hit the buy where the third will your honor hypothetically it is possible there will be a case in the future where when you sort out where you agree where you honor it depends which issues you agree with and which issues you don't agree with because when you step back you can put those issues in context and let me give you a concrete example let's say hypothetically that you agreed with the commission on the question of whether there was price undersell ok the existence of price underselling is actually one of the issues but it's not the core issue in this case the court issue in this case these facts is what effect did any alleged underselling have and if you agree with judge tristan as she argues eloquently that there is no evidence to support the conclusion that there was an adverse effect not just a residual effect a significant adverse effect from the underselling then you have a basis for resolving the case now and that is our position on the facts of this particular case that the evidence that the price effects were not significant associate wrong and judge precise rationale is so compelling let me give you a few examples of what i think are the central pillars of judge response decision and then you can go back and see whether you agree with her facts of this case you will actually see pretty compelling evidence that the price of facts were not significant so for example judge restudy put tremendous weight on the fact that the petitioner in this case we're steel when it was doing its everyday business the contemporaneous business documents those documents did not identify japanese competition as the source of their problems the contemporaneous business documents of the petitioner in this case pointed to other domestic competition and that finding isn't in isolation that finding is then combined with the fact that there were purchasers of steel in this case who were getting lower prices without buying any japanese steel which is completely consistent with the inference one would draw from the we're in documents which is it's about domestic price competition it's not about the import price competition and certainly not about the japanese litigation with so many remey and determinations that have already taken place with so much extensive discussion with all due respect i don't think the court is going to hear anything new that is significantly expanding w are already and that's the reality that we're facing now in our view we think the time has come for the court to make a decision and to resolve what has already been five years of litigation lots of time and energy can spend spends on this proceeding and we think the evidence is quite clear that if you look at judge responses conclusions and if you look at her explanation of the criticisms if you look at the problem is we may end up not at that hole but somewhere in the middle pulled in six different directions by usually complicated evidence remember material and many many different factors varying on many many the record showed or what judge responding was finding i'm certainly happy to help the facts all i can offer the board is that if you go through judge respond his decision and you go through the exercise that you've described i think the case will be easier than you think it is getting a firm now and having it all over versus another round of course you don't want to go back i wouldn't want to go back either but you know i'm in the end we have to decide what we're obligated to do under the law no matter how inefficient that is or how burdensome is the part and maybe congress has created a cock i mean the system that these change may be  burdensome on all of you it's not up to us to decide that we have to follow the scene as congress enacted it wisely or not and so as much as i sympathize with you and let's not have another room  don't think the sympathy can play any part in what i finally decided here but with all due respect your honor i don't think it's about sympathy although this litigation has gone for a long time i think it's about first what is the best to her decision and we're compelled to that not in if you that's not in doubt the question is after we give due respect their opinion after we agree with some part that perhaps and not other parts of it then what do we do at that point your honor you have to look at what parts you have upheld the difficulty in answering your question is at this point i don't know which parts you want to agree with judge respondent and which parts you don't agree with stricter study my point is simply that before you were removed you should step back and say which parts of the decision were upheld and what in fact would be a kind of what conclusions could an agency draw on the vast majority of issues she is correct and more importantly on the issues where you may have a disagreement with judge her standing they do not in a fundamental way change the basic conclusion that  namely that the commission's conclusion that the japanese prices were having a significant effect in this case and that the other factors were not severing the causal connection our position is that the judge respon decision even after it's gone through the review by this court her core building blocks of the decision she reached will be intact and that this court will be able to agree with that if you've gone through that process judgment judgment said we have here a decision by the court in a decision by the commission both of which i think of this is an accurate description of the questions that were well reasoned articulated particularly in very thorough universal camera consolidator all say it's about well reasoned this and articulates and being thorough and if it's well reasoned that's reasonable that's the other thing too is that she just a shell said there and i don't want to scribe this necessarily clearly states where you are right now but the the people is being polled in six different directions by a hugely complicated set of decisions i have very strong difficult and complex set of facts the fact is that like the issue of reasonable reached the same result of the commission had the matter come before us and just for decision first instance by statute congress has allocated to the commission the task of making these complex determinations in ours to review those decisions for reasonable a situation in which the facts in the record are so complex and there is so much evidence in conflict the congress in this court in the supreme court has consistently said it's the commission's rolled way the program nature that i