good morning everyone you know our first case this morning is lifestyle enterprise versus the united states of the line the court he was appeal concerns the trade court's refusal to adhere to its standard of review when it issued a directed verdict requiring the commerce to use one sort of value data source over another consolidated judgment and then that permitted a party plaintiff who he won this case to appeal therefrom and in fact there are cases on some point that deal with this specific issue your honor and  but there is a case by this court sr circuit in the seventh circuit where judge easterbrook said where the issues are so similar where the facts are so similar and where the appeal arises from the same determination consolidation ma had the opportunity to deal with the issues during the course of the consolidated appeal in the place of already cross opponents here cite to the johnson case in that case there were two different cases on two different tracks the margin with from twenty percent to forty one percent based soley on the what value issue and the other parties who were separate parties their rates would be impacted by that determination so all parties were very concerned about this issue because of the outside  something to do with your not having become a formal party in one case rather than the other is the case that you are not a formal party in the one in which the issue is back up issues that came up i guess after th had raised the issue of well if you're going to move off of the preferred data source that commerce that's left that there are these other data sources that commerce must balance against the  that that the court once commerce to use and this goes back to the overarching point of our appeal our appeal is all about the fact that the trial court stepped into commerce issues and became the finder there are trade court cases on this issue that date back to the one nine hundred eighty s when in so many read in particular there is a passage there where the court had said in order to have jurisdiction here before me you have to either take your own appeal or alternatively wait and intervene it is in somebody else's actions to preserve your rights here you want to look at don't appeal and it became a consolidated appeal with all the other parties we have commerce having twice made a finding that the deputy a standards we may standards are more accurate more reliable and then once somewhat under pressure from the co addressed to supporters preclusion you but twice they told us that the reliable data was wait days once they told us it was volume based which isn't what it could be it c you are required to do is to look and see whether commerce addressed all the arguments that were made which is dead and provided admitted and i'm not sure you're quite understanding the question that i did tell me if i'm right in understanding for c generally have this happen expand the record at that point do i understand right calm or said ok we'll do it but we don't think it's right we're doing it under compulsion and you're now appealing i gather you think you have the right even though commerce has acquiesced but not embraced the order to to challenge it on the ground that there's really only one exercise of discretion here was always in the way to it never this made its own judgment ways can i add one little point to it there's was a deference followed to the expertise of the agency where does that belong in this scenario the judge drama just gave us what you are  final judgment that we were able to appeal to their front and so commerce said well we can't do anything more than justify our reason for relying on the w t a then what we've provided to use a fine we're going to do and before the court can actually look at the merits of their weight versus well let me just and deal with the question i was just dealing with with mr belonging absolutely are now sitting in the same place as the court of international trade we're being told actually three times as judge toronto points out more accurately than i that commerce in its wisdom with its fatter  economists and its investigators thinks that the weight based system is the best the w p a data where are we empowered to do something different than what will be is a the answer is in the statu is the best available information and that they have to pay and they're telling us the best available information is the w p a date and respectfully i would disagree with that if we walk through the history of this but the point is we really should be giving that actuality the decision to use the weight data was right on informations including rebuttal brief for the first time and no party is appealing the remain and from that first decision congress every everybody here acknowledges that first are in the way the wood is is recorded and sold in the way this traded is are in the different types just like if you bought a home or a chair schedule is a whole would take account of you know what is is oil trade in barrels you report a data actually correspondence from the in a so the customer service or the statistics services felt that whenever there was a gap it was sometimes but only very seldom and so if i and are we bound to recognise that commerce has highly skilled people who spend their whole life evaluating would and cases like this one why would we tell them when they twice perhaps three times depending upon how you look at it tell us that waits the right way or why would we go back different right appreciate the question i think you're asking the right question your honor in the fact that did they evaluate the evidence is their subject matter jurisdiction emissaries that is or is there substantial evidence on the re excuse it but it and the answer is no because we needed to demonstrate that weight data is reliable and there's a reasonable choice they have to demonstrate there is a poor aleisha in between picking it whenever weighting creases the price some water in wood that was being used in the days that remember you always using only kill dried lumber species dated they said that they're great here to me if i remember right commerce said we have what we think that there is a possibility of sun we don't know if sun is is trivial epsilon or as large now i actually would i don't read what they said that way and we remember we have to take a step back and understand that kilbride longer there's no one to one correlation between species and i'm trying to remember but if i remember from that chart what you said is i think right because you put in the word one to one that is it's not a perfect correlation but in general there is a a correlation there i disagree with that know that their argument that it was there there is a correlation and they say pick certain data points what are figure two does is it pull all data had this standard conversion factor the commerce found very unreliable very disturbing in fact overall they said volumes worse than waste why am i going to go back on that i  and in this instance knowing that you had volume data which is how the lumber is traded and how it can be used and they're using a weighted that is they cannot show is not stored in fact the record supports that in demonstrates as a matter of fact that it is distorted and then they have to pick the best of the two will turn this sense i got you were briefly before you sent on the sense i got was that what was troubling the court was with the weight data the it was an aberration that what the distortion resulting from that was in one direction only and where as volumes there was a distortion and a ration as well but they went all over up and down up and down so i got the sense that the court of international trade was a it seems to me that the volume data things would wash out whereas weight would be a distortion in one direction only and co explained to me why that is not a problem and they never got the explanation the commerce has to demonstrate that under the best available information standard that it acted and it shows a  reasonable decisions and the evidence supports its decisions and they were unable to explain why there was not a distortion in using the data and therefore the court said please explain please explain please explain and having failed to do that  the court said you did record is not the events on the record not sufficiently please go back reopen the record and grab a more information to support your correlation arguments that weight is reliable and if you can't then we have to make a decision based on the evidence was  between the the witness of the with that might be distorting the weight calculation and the the kind of mixed effect of certain possible problems in the in the value considerations that it seems to me i don't understand how one can draw a bottom line conclusion from that without knowing the numbers that is qualitative movements that might be variations in the problems with that judge respond identified as pointing might not quite cancel out describing them qualitatively it's pointing in two different directions doesn't say whether on net they outweigh what might be a tiny problem on the other side of the way so which is just  just the point that it seems to me without numbers there's no basis for saying commerce can't make the judgment that we don't know what to do with these possible factors there are only qualities in i would i would respond by saying that on the law inside in fact there is there are numbers and we can so based on the evidence on the record as one percent but even interpret that i understand the point that was made earlier it's seldom a very rarely do we not have the actual line data on the weight data what we would be turning the question around slightly in we go straight to the point of why that was an unreasonable choice commerce never did the analysis to determine why there was a correlation if there is a correlation  correlation which is they have to demonstrate that the correlation for their you can read their rejecting volume data and picking weight data when longer is traded on a volume basis all the pricing is on the volume basis and on the basis they have to show that if you double the weight you're not you're in fact doubling the price because if you're not doubling the price you have a significant distortion and what the court was saying is if you're going to say there's a a pretty hard for me to balance the time when when i have three parties i'm not sure whether they give you less or more but will i'm giving you ten minutes and see how we can  unusual procedural posture and that we're only appearing in that believe with respect to one issue which is the domestic industries appeal with respect to the use of certain surrogate financial statements in the calculation of you was dumping more we haven't really talked about that much that police are all comers are reasonably determined not to use the direct so design financial statements in its calculations here the statute directs congress to use the this is the with respect to a volume that was an adverse decision against the governor and the government elected not to appeal so i'm not authorized to either defend the judgment or oppose the judgment which is all right thank you but with respect to the best available information the really the key word there is available and there were six other financial statements on the record which there was no question as to whether the entity identified in the financial statements to produce comparable merchandise here and dream in the department of commerce when supplemented the record looked at the full website of direct so and also looked at information indicating that to read so trading was the company that owned the website not to read so design the company in the financial statements and therefore the agency concluded well this the financial statements are questionable as to whether the entity identified in those statements actually produce comparable merchandise and because we have six other unquestionably good financial statements we're going to toss out this particular statement which may or may not be usable for these reasons we respect i just i fear i know the answer to this question but are you also not permitted to address any that dress the standing question we are committed to a drop of standing question when you have later additional question and we agree with the domestic industry here with mr taylor we did not file a brief because the motion to dismiss address you was appealed in which we did not appear to file the brief but on further reflection the johnson case does control and a party here has been intimately involved all the way through there isn't the slightest harm or prejudice to anyone because we all understand the issues that is a matter of fact nobody even sees this until the last day of briefing every one of the soon we were going to carrying on with this appeal isn't there any technical got to going on here rather than upholding of some sacrosanct principle we agree that it's very technical but jurisdiction is technical especially when the suits against the government under the backdrop of sovereign immunity adverse to them on this point no but we are but when when there's an issue about the jurisdiction just pursuing the government we should answer questions regarding that issue and  the court of international trade at which the court of international trade was addressing an argument that a point made only by them while in the case to which they were not formally a party and i think he said yes and that feels to me like if it's true might mean that they were effectively made a party call that intervention without an intervention order these kinds of cases work is that you might have five or six parties challenging an apartment congress determination all of them challenged different aspects of that determination and the court will consolidate for the convenience sure but certain parties intervene in other parties cases as well to preserve the right to appeal and in fact just because the court allows everybody to comment on everyone else's issues well i'm not mad i mean i know that in these kinds of proceedings  hard news tried to do belt and suspenders because sometimes you can screw up and you just don't want to litigate about what we are now discussing so you paper it over the question is when somebody neglects to pay for  it what is the default rule which we're now stuck with the question is now so much what everybody does it's a routine matter because lawyers are cautious but what happens when somebody that likes to do something well  d arguments to the commerce department and address those arguments and those arguments how to deal with the alternative sources that were available here and i think that   had that soured construed your question earlier and that what i was relying on for those that was the arguments here with respect to weight versus flying your honor they were one in the same because that would i value there's no such requirement imposed on volume instead volume is a secondary characteristic and where volume is not provided for the philippine customs officials we used a standard conversion ratio which the earlier with judge toronto about whether the reasoning of the court of international trade was linked to numbers sufficient to be able to tell whether volume or weight were clearly the best available data i wish to hear your response to that as well as well i found the part we interesting your honor because of the fact that i think that where we are now at the  level and where we should have been at the trade court level was that commerce sufficiently justify its determination and i'm not sure if the the proof necessarily has to be there for congress to say well you know this is an imperfect record but between these two clearly imperfect data sources on one level we have facts that indicates that there was a standard conversion ratio used it may have been used a minimal amount which is what the cross opponents argue or may have been used more which is the masking argument that we make the alternative is forty six out of one hundred twenty something right your honor and the other issue with that is that that's what you know for certain that it was used it could have been used more and so the assumption is that our relied upon for why they wait face that are improper the idea that there might be some amount of greenwood having mo or have your packing materials that's an assumption that's not based in any fact it's a basket category of what and we don't know specifically whether there is a large amount of green was or whether it could easily just be the fact that it all  was different grades have different densities and it could just be that it could be that they're all dried was but some are more dense than others and that was a judgment for commerce to make and and they need that the judgment below and and that's why we're here and