Commerce Failed to Weigh 'Prejudicial' Result When Denying Untimely Filing in AD Case, US Cos. Say

The Commerce Department failed to properly consider the "extremely disproportionate and prejudicial result" that stemmed from its decision to reject an untimely filing in an antidumping sunset review that led to the revocation of the order, three U.S. chemical companies argued in a May 31 reply brief at the U.S. Court of Appeals for the Federal Circuit. Commerce's "exceedingly narrow view" of what qualifies as an "extraordinary circumstance" isn't supported by the statute, evidence or the agency's own prior practice, given that Commerce said the U.S. companies' counsel's medical issues didn't qualify as such a circumstance, the brief said (Trinity Manufacturing v. United States, Fed. Cir. #22-1329).

The case comes from the Court of International Trade, where Judge Timothy Stanceu ruled Commerce had not abused 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, told the trade court that, at the time of the error, the filing attorney, who faced internet difficulties as well as medical issues, thought the filing had been made. Commerce rejected their bid for a retroactive deadline extension.

Trinity, Ashta and Niklor appealed to the Federal Circuit, where they argued that Stanceu's opinion didn't focus on the "extremely disproportionate and prejudicial results" that came from the missed deadline (i.e., the revocation of the 40-year-old order). 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). Stanceu also ruled in that case.

In its reply, the U.S. argued that the appellants' lawyer's medical issues didn't qualify as an "extraordinary circumstance" warranting a filing extension because they weren't unexpected (see 2205100045). The appellants, though, said this argument ignores the "sudden and unexpected nature" of the medical condition's side effects.

"Moreover, Commerce’s implication that ongoing medical conditions cannot give rise to sudden and unexpected side effects would lead to absurd results, whereby someone who suffers from a chronic illness would be expected to file an extension request prior to every single deadline just in case unanticipated side effects arise," the brief said.

The chemical companies argued Commerce didn't act consistently with its prior rulings in denying the filing extension request. Commerce told the Federal Circuit that it shouldn't consider this point because the companies failed to bring up that argument before the agency. The appellants, though, told the appellate court to ignore Commerce's point because it was not brought up before the trade court and the companies didn't need to bring up the argument to the agency as it would have been futile.

Responding to the appellant's argument that the agency failed to consider the disproportionate results of denying the untimely filed submission, the U.S. said its deadlines will be enforced regardless of the consequences. In reply, the appellants said Commerce's position isn't supported by the cases the agency relies on to show that prejudice should not be a factor to consider when enforcing deadlines.

In one such case, Dongtai Peak Honey Industry v. U.S., the Federal Circuit looked at whether the respondent's due process rights would have been violated by the rejection of untimely filed information, resulting in adverse facts being available. The appellants said that "while disproportionality and prejudice were not found in those cases, the courts did, in fact, consider these aspects." In this case "Commerce has consistently refused to take into account the draconian and punitive consequences of its decision to deny Plaintiffs-Appellants’ extension request."