Lawyer's Medical Issues Not Proper Grounds for Submitting AD Filing 11 Days Late, US Tells CAFC

The lawyer for a group of three U.S. chloropicrin producers' medical issues were not unexpected and thus do not classify as an "extraordinary circumstance," warranting an untimely filing in an antidumping duty sunset review that led to the revocation of the order, the U.S. argued in a May 9 reply brief at the U.S. Court of Appeals for the Federal Circuit. The lawyer had been experiencing the medical issues for months and had actually carried out other tasks in the sunset review on the day prior to and on the day the submission was due, showing that the Commerce Department's rejection of the filing in question was justified, DOJ argued (Trinity Manufacturing v. United States, Fed. Cir. #22-1329).

The case comes from the Court of International Trade, where Judge Timothy Stanceu ruled that Commerce did not abuse its discretion when enforcing the filing deadline (see 2111080069), citing the agency's clear interest in enforcing filing deadlines. The three plaintiff-appellants, Trinity Manufacturing, Ashta Chemicals and Niklor Chemical Company, had told the trade court that, at the time of the error, the filing attorney thought that the filing had been made, and there were internet issues as well as medical issues the attorney faced. Commerce had rejected their bid for a retroactive deadline extension.

Trinity, Ashta and Niklor appealed to the Federal Circuit, where they argued that Stanceu's opinion did not focus on the "extremely disproportionate and prejudicial results" that came from the missed deadline (i.e., the revocation of the 40-year-old order. Further, the trade court held in a February decision that Commerce's denial of minutes-late submissions in antidumping and countervailing duty investigations constituted an abuse of discretion (see 2202160021). That case was also decided by Stanceu.

In its reply, the U.S. addressed the claims over the lawyer's medical issues and the alleged disproportionate results that came from the missed deadline. For the medical issues, DOJ said that "there is no evidence in the record" of how these issues affected his ability to confirm that he filed his response. As for the claims that the consequence of denying the submission was "unduly harsh," the U.S. said that Commerce's deadlines will be enforced "regardless of whether the result of a proceeding would be made more accurate by permitting untimely information to be placed," the brief said. "This Court has previously upheld Commerce’s denial of an untimely extension request without regard to the effects of the decision."

In referencing the cases at CIT where Stanceu found the rejection of minutes-late submissions to be an abuse of discretion, the plaintiff-appellants are trying to elicit a similar judgment from the Federal Circuit. The U.S., however, argued that these cases present very different circumstances. "It is impossible to conclude that this case presents a 'minor technical violation that had no discernible effect on the investigation,' because unlike Celik AD the companies completely failed to file their substantive response, and indeed did not even know that they had failed until 11 days after the response was due," the brief said. "Moreover, they have never provided a satisfactory explanation for the failure."