[00:00:00] Speaker 04:
Our next case for argument is 22-1329, Trinity Manufacturing versus United States.

[00:00:07] Speaker 04:
Mr. Gordon, please proceed.

[00:00:12] Speaker 01:
Good morning, Your Honors.

[00:00:12] Speaker 01:
May it please the Court.

[00:00:14] Speaker 01:
As an initial matter, let me just say I regret that Mr. Long was unable to join us today and hope he's on the mend soon.

[00:00:20] Speaker 01:
This case involves, I'm here today on behalf of Trinity Manufacturing, Ashton Chemicals, and Mike Moore Chemical Company, three American producers of a chemical called chloropichrine, which is used as an agricultural fumigant for soil.

[00:00:34] Speaker 01:
This appeal involves our challenge to a decision by the Department of Commerce to deny a request for a retroactive extension of the deadline, a single deadline missed in the context of an uncontested sunset review.

[00:00:48] Speaker 01:
As a result of their decision to deny the request, the Commerce Department has revoked an anti-dumping duty order in its entirety, an order that was in effect for nearly 40 years.

[00:01:00] Speaker 04:
Just out of curiosity, counsel, is your argument here today that commerce erred as a matter of law in the test it articulated for what constitutes a circumstance under which an extension of time should be given?

[00:01:18] Speaker 04:
or that in this case, there is a problem with their analysis of the facts, or that alternatively, I have three choices, or that they did something arbitrary and capricious because this case is exactly like lots of other cases where they granted extensions.

[00:01:34] Speaker 04:
Precisely define for me what your argument on appeal is, please.

[00:01:40] Speaker 01:
law, we do not contest the department's regulation 30302C.

[00:01:45] Speaker 01:
However, we do challenge their elevation of language of an example from the preamble to that regulation.

[00:01:53] Speaker 01:
into what amounts to law, regulatory, legal requirements.

[00:01:58] Speaker 01:
Both the Commerce Department and the Court of International Trade specifically pointed to the fact that in their judgment, the circumstances before the agency did not amount to a medical emergency, which is an example, a non-exclusive example, listed in the preamble.

[00:02:15] Speaker 01:
And so we believe they aired there because a preamble, especially one like this,

[00:02:19] Speaker 01:
which was only promulgated with the final rule does not have force of law.

[00:02:24] Speaker 01:
We do believe that the department abused its discretion in failing to weigh relevant factors before the agency, namely the facts and circumstances surrounding the medical issues affecting the individual and his ability to file the submission.

[00:02:40] Speaker 03:
Let me ask you, just as a threshold matter, are you relying also on the technical issues stuff?

[00:02:47] Speaker 03:
Or are you relying exclusively on the medical issues?

[00:02:50] Speaker 01:
We're relying on both.

[00:02:51] Speaker 01:
The technical issues were a contributing factor as well.

[00:02:54] Speaker 01:
The medical issues, which came out only later, I'd say were definitely the bigger portion.

[00:03:00] Speaker 01:
And the combination of the two resulted in his inadvertent and unknowing failure to file the submission and issue, which he only realized later.

[00:03:09] Speaker 04:
Well, the technical issue is he guesses he couldn't get access to the internet, right?

[00:03:15] Speaker 04:
What precisely is the technical issue?

[00:03:17] Speaker 04:
Well, the technical issue is... It has been clearly presented to commerce.

[00:03:21] Speaker 01:
Well, it was described as intermittent problems with the internet throughout the pandemic.

[00:03:27] Speaker 03:
That's what seemed to me to cut the other way.

[00:03:30] Speaker 03:
In other words, against your client.

[00:03:31] Speaker 03:
Because if everything's working fine and suddenly the one morning he's supposed to send this, there's a sudden unexpected problem.

[00:03:38] Speaker 03:
That's one thing.

[00:03:39] Speaker 03:
And this regulation does talk about unexpected.

[00:03:42] Speaker 03:
But he says his story is that during the pandemic, he had been experiencing problems.

[00:03:49] Speaker 03:
So that, to me, seems to cut the other way.

[00:03:51] Speaker 03:
And the other question, I just have another question to add before you respond, which is that, is there any kind of filing receipt that's generated in supply when you file?

[00:04:00] Speaker 03:
The stuff in commerce?

[00:04:01] Speaker 01:
There is.

[00:04:02] Speaker 01:
Yeah.

[00:04:02] Speaker 01:
You receive a filing to receive from the access online.

[00:04:05] Speaker 03:
So he could have easily checked.

[00:04:06] Speaker 03:
And I assume some, if not all, or many lawyers file something and then look for the receipt, right?

[00:04:14] Speaker 01:
To be perfectly honest, you receive an automatically generated confirmation from Access that you've made a submission and that it's been received, yes.

[00:04:22] Speaker 03:
That's what a lawyer would expect to receive right after the filing, and he did not receive that.

[00:04:27] Speaker 03:
That's my understanding, yes.

[00:04:28] Speaker 03:
OK, thank you.

[00:04:30] Speaker 01:
And just to finish the thought, we also believe that the agency's decision here was arbitrary, capricious in light of their decisions in over a dozen cases that we cited where they granted retroactive extensions under circumstances that were far less

[00:04:49] Speaker 01:
extraordinary, which is the standard, the extraordinary circumstances requirement.

[00:04:52] Speaker 01:
But more to the point, they all involved factual situations that are not identified in the preamble at all.

[00:05:04] Speaker 02:
So the CIT distinguished those cases on the ground

[00:05:08] Speaker 02:
that they all involve situations where there was a very short delay in the filing, which was different from the situation here.

[00:05:16] Speaker 01:
Well, I would respectfully disagree with that, because if you look at the situation here, and the filing was due on the 3rd, and the individual genuinely believed he had made the filing, to the point where on the 4th, he emailed copies of the filing

[00:05:33] Speaker 01:
with a note to his client.

[00:05:34] Speaker 03:
So there's a question that he presumably, I mean, I don't think there's much question that he believed it.

[00:05:38] Speaker 03:
The question is, did he act appropriately with due diligence, or is there an excuse for him not having checked, gotten the receipt?

[00:05:50] Speaker 01:
Yeah.

[00:05:51] Speaker 01:
But to further the response to what I may please, what's important to note here as far as prompt

[00:05:59] Speaker 01:
remedial action, if you will, was that he only learned that he had missed the filing on the 14th when he received a copy of Congress's letter to the International Trade Commission saying they intended to revoke the order.

[00:06:10] Speaker 04:
When you say he only learned, you just told us that every filing is met with a notice that indicates receipt.

[00:06:18] Speaker 04:
He's telling us he only learned.

[00:06:21] Speaker 04:
But also, you have to acknowledge that this record demonstrates he didn't get what every reasonable attorney would expect to get.

[00:06:28] Speaker 04:
in response to a filing, right?

[00:06:31] Speaker 01:
That's correct.

[00:06:32] Speaker 01:
I will say, this is where I'll circle back around to that, Your Honor, if I may.

[00:06:37] Speaker 01:
But he learned a bit on the 14th.

[00:06:40] Speaker 01:
Starting on the 15th, the next morning, the 15th, 16th, and 17th, he tried to reach commerce concerning this problem.

[00:06:48] Speaker 01:
No one ever answered the phone, and no one ever returned his messages.

[00:06:50] Speaker 01:
That's not contested.

[00:06:52] Speaker 02:
And then he had- I think the CIT is saying something a little different, saying,

[00:06:55] Speaker 02:
If the delay is minimal, Congress has decided that it has brought a discretion to grant these requests.

[00:07:07] Speaker 02:
But this is not a situation in which the delay is minimal.

[00:07:11] Speaker 02:
So what's your response to that?

[00:07:13] Speaker 02:
Is that an accurate characterization of the cases or not?

[00:07:17] Speaker 01:
I would say that if you look at the body of cases involving situations like this, there is a theme running through them

[00:07:23] Speaker 01:
as I've written and take it, that parties who act promptly to address an error, commerce tends to exercise its discretion in favor many times of allowing the late filing, even when the circumstances aren't what, in this case, for example, commerce seems to be requiring as an extraordinary circumstance.

[00:07:44] Speaker 01:
What I would respectfully submit, Your Honor, though, is that

[00:07:47] Speaker 01:
that the representative here did act promptly as soon as he knew.

[00:07:51] Speaker 01:
And I know there's, to your point, Chief Judge Moore, there is the question of the receipt from access.

[00:07:58] Speaker 01:
But in this situation,

[00:07:59] Speaker 01:
This gentleman was operating with a degree of medical impairment, sudden acute bouts of side effects from an ongoing medical condition.

[00:08:09] Speaker 01:
That's also not disputed.

[00:08:11] Speaker 03:
And what I envision is someone who is- Can I interrupt just so you- I know I'm interrupting.

[00:08:16] Speaker 03:
I'll let you finish.

[00:08:16] Speaker 03:
But I just want you to include this, because it's right on what you're saying.

[00:08:19] Speaker 03:
You're saying his prompt action, you're starting it September 14.

[00:08:25] Speaker 03:
And certainly on September 18, he filed a request for an extension.

[00:08:29] Speaker 03:
And then you all came in, and on the 25th, you filed a letter in response.

[00:08:35] Speaker 03:
I just find out, unless I'm missing something, neither of these requests for an extension made any mention of these medical issues.

[00:08:43] Speaker 03:
They were all dealing with the computer glitch.

[00:08:45] Speaker 03:
And as far as I could find, going through the record, the first mention of the medical issues as basis for granting the extension was October 7.

[00:08:55] Speaker 01:
That's absolutely correct.

[00:08:58] Speaker 01:
And as we laid out in the submission to Commerce on the 7th, in the other filings, and also in our briefs, the representative was reluctant to share sensitive personal medical information at the beginning, and naturally reluctant, I think, to share it with the Commerce Department, not knowing how it would be received or used.

[00:09:22] Speaker 01:
After we, it was only after we.

[00:09:24] Speaker 04:
There's a regulation that expressly says that extensions will be given in extraordinary circumstances.

[00:09:30] Speaker 04:
And then there's gloss on that regulation that expressly says, extraordinary circumstances doesn't include things like internet allergies, but it does include things like unexpected medical issues.

[00:09:42] Speaker 04:
Your client responded with your assistance on multiple occasions, not all of them with your assistance, because I know you came on after the fact.

[00:09:51] Speaker 04:
responded on multiple occasions proffering what amounted to the extraordinary circumstances, all of which were I had intermittent internet issues.

[00:10:00] Speaker 04:
Then only much later does your client bring up the medical issues.

[00:10:09] Speaker 04:
I mean, really, am I going to conclude commerce abused its discretion in concluding that only these medical issues were only brought up after the second request for reconsideration, all prior requests based on something the regulation expressly says doesn't amount to extraordinary circumstances, that commerce abused its discretion when it concluded at the very end, after all of these findings, that this late identification of a medical issue

[00:10:34] Speaker 04:
doesn't qualify.

[00:10:36] Speaker 01:
Well, I think the abusive discretion has another dimension, which is the disproportionate and draconian result that came from it.

[00:10:44] Speaker 02:
In fact, I don't believe the Commerce decision is relying on the late disclosure as the reason for rejecting the request.

[00:10:55] Speaker 02:
Is that part of what Commerce said?

[00:10:58] Speaker 01:
You mean the lateness of the disclosure of the timing?

[00:11:02] Speaker 02:
As Chief Judge Moore said, there was not prompt disclosure of this medical condition and the role that it played in the late filing.

[00:11:11] Speaker 02:
That's the problem.

[00:11:12] Speaker 02:
But I guess the question is, was that delay part of Congress's reasoning?

[00:11:18] Speaker 02:
I mean, if they'd said,

[00:11:20] Speaker 02:
We're not going to consider this because it took you a month or whatever to come up with the medical reasons.

[00:11:25] Speaker 02:
That would be one thing.

[00:11:26] Speaker 02:
But I'm not sure that they said that.

[00:11:28] Speaker 02:
Did they say that?

[00:11:29] Speaker 01:
They rejected it by saying that the conditions that were described didn't amount to a medical emergency.

[00:11:34] Speaker 01:
And we see the error there as well, because that is elevating a non-exclusive example from the preamble into a regulatory requirement.

[00:11:41] Speaker 04:
Well, counsel, right after they said it didn't amount to a medical emergency, the very next sentence is

[00:11:46] Speaker 04:
Furthermore, this medical issue did not preclude Mr. Lewin from timely filing extension requests for the substantive response through all reasonable means.

[00:11:59] Speaker 04:
And it goes on to explain how he made multiple other filings during this time without any conflict.

[00:12:06] Speaker 04:
So yes, there is a portion where they said this doesn't rise to the level of a medical emergency, but then they did a moreover, which is a second and independent ground

[00:12:16] Speaker 04:
for concluding that this doesn't amount to extraordinary circumstances.

[00:12:20] Speaker 01:
And our point with respect to the moreover ground is that he had absolutely no idea that he needed to, because he genuinely believed he had made the file.

[00:12:29] Speaker 03:
Yeah, but your answer to Judge Deitch's query, I think you agree, is that the CIT did rely or cite and rely on the timing issue as well.

[00:12:39] Speaker 01:
Yes.

[00:12:40] Speaker 02:
And the government answered.

[00:12:41] Speaker 02:
That wasn't my question to you.

[00:12:42] Speaker 02:
My question was whether commerce relied on that.

[00:12:45] Speaker 02:
And I don't see this paragraph here as commerce relying on the delay in advising the medical condition.

[00:12:53] Speaker 01:
I don't disagree with you about that, Your Honor.

[00:12:54] Speaker 01:
I'd have to go back and review myself.

[00:13:01] Speaker 01:
My preference would be to save some time for rebuttal.

[00:13:03] Speaker 01:
Oh, absolutely.

[00:13:04] Speaker 04:
All right, Mr. Gordon.

[00:13:06] Speaker 04:
Mr. Long, please proceed.

[00:13:10] Speaker 05:
Thank you, Your Honor.

[00:13:11] Speaker 05:
May it please the court.

[00:13:12] Speaker 05:
Yes, that is 110, which is Congress's denial of the untimely extension request.

[00:13:17] Speaker 05:
It can only be read as relying.

[00:13:20] Speaker 05:
First, they do point out that there's no medical emergency here.

[00:13:23] Speaker 05:
But as the Court has just covered, the next paragraph explains the fact that there's been no connection demonstrated between the claimed medical issue and the inability to timely file an extension request.

[00:13:36] Speaker 02:
OK, but that's not the question that I was asking.

[00:13:40] Speaker 02:
There was delay in surfacing the medical issue, but I don't read Commerce's decision as rejecting the request on the grounds that there was delay in raising the medical issue to if after the failure to file.

[00:13:56] Speaker 02:
Am I correct about that?

[00:13:58] Speaker 05:
Yes, Your Honor.

[00:13:59] Speaker 05:
Yes, we read it the same.

[00:14:01] Speaker 05:
That's right.

[00:14:02] Speaker 05:
The focus is the lack of connection.

[00:14:04] Speaker 05:
And that's the point I was trying to make.

[00:14:05] Speaker 05:
It's that lack of connection is Congress's focus, not the delay in bringing up the issue.

[00:14:09] Speaker 04:
It's true that there were two requests.

[00:14:11] Speaker 04:
Am I right that even if the Court of International Trade relied on the length of time in deciding Congress was OK, it's kind of irrelevant?

[00:14:22] Speaker 04:
are relevant because we reviewed de novo the same thing they did.

[00:14:25] Speaker 04:
So we can put that issue to the side and just focus on this issue you and I were just talking about, which is whether or not Commerce adequately has a basis for having concluded the medical issue did not preclude Mr. Lewin from making filings.

[00:14:40] Speaker 05:
Absolutely correct.

[00:14:41] Speaker 05:
That's right.

[00:14:44] Speaker 05:
And so again, it's really the lack of connection that was shown that was Commerce's focus.

[00:14:50] Speaker 05:
on the record here, based on the former representative's declaration and the other information in the record, that conclusion was not an abuse of discretion.

[00:15:01] Speaker 05:
It was rightly and rationally based on what was presented to the agency.

[00:15:06] Speaker 05:
So when I read his declaration, can you hear me?

[00:15:13] Speaker 05:
Council!

[00:15:16] Speaker 05:
Council!

[00:15:20] Speaker 05:
these untimely extension requests.

[00:15:22] Speaker 05:
These cases need to be taken on the facts.

[00:15:24] Speaker 05:
And so for example, with respect to one of the examples that my friend, Mr. Gordon.

[00:15:32] Speaker 04:
Go ahead.

[00:15:32] Speaker 04:
We heard you the whole time, but you couldn't hear us when we were trying to ask you questions.

[00:15:36] Speaker 04:
Go ahead.

[00:15:36] Speaker 02:
I'm sorry.

[00:15:37] Speaker 02:
No steak.

[00:15:38] Speaker 02:
My understanding of this declaration that the former counsel submitted was that basically as a result of my medical condition, I was confused on that morning

[00:15:50] Speaker 02:
I thought I had sent it, but in fact, I hadn't.

[00:15:54] Speaker 02:
And I'm looking at the furthermore paragraph in the commerce's decision, and I'm not understanding how this is really responsive to what he's saying.

[00:16:07] Speaker 02:
He says the medical issue didn't preclude him from timely filing an extension request.

[00:16:12] Speaker 02:
Well, yes, it did if he didn't know that he hadn't filed.

[00:16:17] Speaker 02:
So that's really kind of off point, isn't it?

[00:16:20] Speaker 05:
I think what Congress is attempting to express here is the point that what you raised, which is the lack of knowledge by the prior representative, having been explained, given that he was able to complete other work on that deck, we also talked a little bit about the fact that there would have been an access notice that's

[00:16:49] Speaker 05:
system, he would have gotten one.

[00:16:50] Speaker 05:
That's not mentioned here by Commerce, but the two facts don't reconcile his claim of not knowing and the fact that he was able to complete other work.

[00:17:04] Speaker 05:
And it's that lack of understanding or explanation of how both can be true that led Commerce to conclude that there's no extraordinary circumstance here.

[00:17:15] Speaker 02:
You mean that his, they sort of doubted his declaration where he said he was confused on that morning because of his medical condition?

[00:17:24] Speaker 05:
I don't think they're challenging the fact of his statement that he was confused here.

[00:17:30] Speaker 05:
I don't think they're disputing that in that appendix 110.

[00:17:33] Speaker 05:
I think what's being said is

[00:17:36] Speaker 05:
okay, but how then were you able to work on other things and not also seek extension?

[00:17:40] Speaker 02:
But isn't that a mixture of confusion?

[00:17:42] Speaker 02:
You can be confused about one thing, but do something else at the same time.

[00:17:46] Speaker 02:
It doesn't seem to me that being confused necessarily leads to a situation where you're completely incompetent to perform any tasks.

[00:17:57] Speaker ?:
That's very true, I guess.

[00:17:59] Speaker ?:
Yes.

[00:18:00] Speaker ?:
I understand that.

[00:18:03] Speaker ?:
But it's still,

[00:18:16] Speaker 05:
if he was unable to complete this particular task when he completed others, doesn't rise to an abuse of discretion on these facts, even given that, like I said, we're not challenging, Congress hasn't been challenged with facts stated in the Declaration.

[00:18:31] Speaker 02:
The decision here does seem to be inconsistent with some of these other decisions, which may be distinguishable on the grounds that they involve less of a lapse of time, but the grounds

[00:18:43] Speaker 02:
that they accepted in these other decisions seem to be the very grounds here that they say are not acceptable, right?

[00:18:51] Speaker 02:
I mean, there's an inconsistency there.

[00:18:53] Speaker 02:
No?

[00:18:54] Speaker 05:
Well, your Honor, as I was mentioning earlier when I unfortunately couldn't hear the Court, in Don Taiti, the Court noticed that each situation needs to take on a space.

[00:19:06] Speaker 05:
And Commerce, of course, rejects many of Natalie's bench requests in addition to accepting them.

[00:19:17] Speaker 05:
The company didn't raise any of these examples before commerce.

[00:19:24] Speaker 05:
The only one raised in their opening brief at the CIT was aluminum extrusions from China.

[00:19:29] Speaker 05:
And as the Corp of International Trade pointed out, no one here knows what the medical issue was in that case.

[00:19:36] Speaker 05:
And so that just highlights the fact that these are unique circumstances and need to be taken on the whole set of facts.

[00:19:43] Speaker 05:
Those whole set of facts haven't been presented here.

[00:19:47] Speaker 05:
And it really is a question of whether Congress's decision with respect to this regulation is rational in a given case.

[00:19:56] Speaker 02:
OK, but it may be that the result in these other cases can be reconciled with the result here.

[00:20:02] Speaker 02:
But the reasoning that Congress articulated in these other decisions seems to be inconsistent with the reasoning here.

[00:20:09] Speaker 02:
Isn't that correct?

[00:20:11] Speaker 05:
Well, I would say that I agree.

[00:20:17] Speaker 05:
The statute, 19 CFR 351302C2, is focused on the reasons for the untimely request and what circumstances precluded for filing untimely requests.

[00:20:31] Speaker 02:
Focus specifically on my question.

[00:20:33] Speaker 02:
Isn't the reasoning of these other decisions inconsistent with the reasoning here?

[00:20:39] Speaker 05:
I don't think we know the full extent of the reasoning.

[00:20:42] Speaker 05:
We don't know the full extent of the reasoning.

[00:20:45] Speaker 02:
We have what they said.

[00:20:47] Speaker 02:
seem, on its face, seems inconsistent with what they said here.

[00:20:50] Speaker 02:
They seem to have accepted reasons that they now say are precluded.

[00:20:55] Speaker 04:
Counsel, do you have any idea what case Judge Dyke is talking about?

[00:20:58] Speaker 04:
I'm not sure.

[00:20:59] Speaker 04:
I just would like to keep up.

[00:21:00] Speaker 04:
What case are you and Judge Dyke talking about right now where he's asking you if the reasons there were the same as the reasons here?

[00:21:07] Speaker 05:
Well, the offense had raised a number

[00:21:11] Speaker 05:
cases in there.

[00:21:14] Speaker 04:
I just want to keep up with wherever this conversation is.

[00:21:17] Speaker 04:
You've been asked a question, and you're going back and forth on whether the reasoning in some mystery other case, which I would like to know what case it is.

[00:21:24] Speaker 02:
It's not one case.

[00:21:25] Speaker 02:
It's several.

[00:21:26] Speaker 04:
Well, let's pick one, counsel.

[00:21:28] Speaker 04:
Let's pick one case, and let's talk about it then.

[00:21:30] Speaker 04:
Whatever case.

[00:21:30] Speaker 04:
I don't care.

[00:21:32] Speaker 05:
I'm sorry.

[00:21:33] Speaker 05:
I was talking about aluminum exclusions from China, which is the only one that

[00:21:39] Speaker 05:
the company brought up in their moving brief at the CIT.

[00:21:44] Speaker 04:
And in that case, did Commerce say Council experienced serious and unexpected medical issues which required hospitalization and extended recuperation period?

[00:21:55] Speaker 04:
Is that part of that case?

[00:21:59] Speaker 05:
I am not sure where the court is looking, and I apologize.

[00:22:02] Speaker 05:
I'm not certain the answer to that.

[00:22:04] Speaker 05:
I do know that this gets interesting.

[00:22:07] Speaker 02:
Let's take, for example, on page 31 of the blue brief, the circular welding case.

[00:22:11] Speaker 02:
There was a miscommunication with clerical staff, and apparently in documents being uploaded to Access.

[00:22:18] Speaker 02:
Those are the kinds of excuses that commerce and this decision say don't qualify, right?

[00:22:24] Speaker 05:
Well, not exactly.

[00:22:26] Speaker 05:
These are obviously different facts.

[00:22:29] Speaker 03:
And, you know, I'll point out that the company's going to bring any of the... And carbon and steel allylite... Can I just ask, just so I can follow along, are these cases, Judge Siansu cited a lot in his footnote?

[00:22:45] Speaker 02:
No, these are on 31 and 32 of the booklets.

[00:22:49] Speaker 03:
But are these also the ones that Judge Stansu is just doing?

[00:22:56] Speaker 03:
No.

[00:22:56] Speaker 03:
So these are new and different.

[00:22:58] Speaker 03:
Do we know if these cases were ever presented to either Commerce or the CIT?

[00:23:06] Speaker 05:
No.

[00:23:06] Speaker 05:
None of these were presented to Commerce.

[00:23:09] Speaker 03:
And what about the CIT?

[00:23:11] Speaker 03:
Was the CIT, was this one of the 13 you provided in the response?

[00:23:16] Speaker 05:
It was being brought up, the Illuminators from China, in their opening brief at the CIT.

[00:23:22] Speaker 05:
We responded, and they brought up all of the remainder in their replies for the first time.

[00:23:31] Speaker 05:
And then I believe that if you take the combination of what the Illuminators from China

[00:23:37] Speaker 05:
all the cases that were in their reply brief at the CIT, I believe that that whole group has now come over into the blue brief.

[00:23:45] Speaker 05:
I believe that's right.

[00:23:48] Speaker 05:
But again, none of these were presented to Congress.

[00:23:51] Speaker 02:
But you also didn't object at the CIT for what you now say was the delayed reliance on this.

[00:24:01] Speaker 05:
Yes.

[00:24:01] Speaker 05:
At the time of my response brief, that is true.

[00:24:05] Speaker 05:
At the time of my response brief,

[00:24:07] Speaker 05:
only a little bit of extrusion from China had been raised.

[00:24:11] Speaker 05:
We saw the work library, the court, issue the decision without hero argument.

[00:24:16] Speaker 05:
And so we did not object to the raising of this.

[00:24:20] Speaker ?:
But it's still true, the raising of all this.

[00:24:24] Speaker ?:
But it's still true that none of them represent commerce.

[00:24:27] Speaker ?:
So there's a question of whether commerce acted arbitrarily previously.

[00:24:31] Speaker ?:
Well, I think it's difficult to make that conclusion

[00:24:36] Speaker 05:
the companies had never presented to Congress the reasons why they thought that these were analogous circumstances.

[00:24:43] Speaker 05:
Obviously, an agency should try to administer its regulations in a consistent way, but it can't guess what the companies would view as analogous situations, as opposed to the myriad circumstances where Congress denied them, et cetera.

[00:24:57] Speaker 05:
And if there are no further questions, I respectfully ask that the court affirm the judgment of the Court of the National

[00:25:06] Speaker 04:
All right, thank you, counsel.

[00:25:08] Speaker 04:
Mr. Gordon, you have some rebuttal time.

[00:25:10] Speaker 01:
Thank you, Your Honor.

[00:25:11] Speaker 01:
A couple of cleanup follow-up points.

[00:25:14] Speaker 01:
The cases that we described in our blue brief were all described, discussed by Judge Stansow in the footnotes to the decision.

[00:25:22] Speaker 01:
These are the cases that he sought to distinguish on the basis of the number of days passing before the request was made.

[00:25:28] Speaker 03:
But no, they were not before Congress.

[00:25:31] Speaker 03:
There's no dispute about that.

[00:25:32] Speaker 01:
No, that's correct.

[00:25:36] Speaker 01:
But I would like to pause for a moment on the aluminum extrusion case because we did cite that in our opening brief and it is actually very analogous to the case at hand and in that case a retroactive extension was granted.

[00:25:49] Speaker 04:
I'm finding difficulty finding how it's analogous here.

[00:25:52] Speaker 04:
What we have from Commerce in terms of rationale is based on the extraordinary circumstances discussed in your letter or granting your request of extension.

[00:26:00] Speaker 04:
And we go to the letter and it explains that the attorney at issue experienced serious unexpected medical issues which required hospitalization and extended recuperation during which she was unable to work consistently.

[00:26:15] Speaker 04:
That is both unexpected and

[00:26:19] Speaker 04:
is at least alleged to be imminent and had a direct response on her ability to work altogether.

[00:26:26] Speaker 04:
How is that analogous?

[00:26:28] Speaker 04:
I mean, how can we say commerce arbitrarily and capriciously denied in this case when the medical issues your client was experiencing were not unexpected but were persistent and intermittent?

[00:26:39] Speaker 04:
Is that a fair characterization?

[00:26:42] Speaker 01:
Yes, it is.

[00:26:42] Speaker 04:
Yeah, so persistent and intermittent, so not unexpected.

[00:26:45] Speaker 04:
Did not require hospitalization, correct?

[00:26:48] Speaker 04:
And he made other filings during that time.

[00:26:51] Speaker 01:
So to your point.

[00:26:52] Speaker 01:
What you just read wasn't the situation that gave rise to the missed deadline for aluminum extrusions.

[00:26:57] Speaker 01:
The next sentence says, even as he has returned to work in recent weeks, his schedule has been uncertain and part time.

[00:27:04] Speaker 01:
As a result of these medical issues, he was unable to timely file an extension request or delegate this responsibility to another attorney.

[00:27:13] Speaker 04:
I'll grant you that maybe that sentence means what you just suggested it means, but it's not clear to me it does.

[00:27:19] Speaker 04:
know enough about this case to know whether he missed the deadline while he was in the hospital or whether he missed the deadline after he returned to work?

[00:27:28] Speaker 01:
No, with all due respect, Your Honor, it's obvious.

[00:27:30] Speaker 01:
It says even as he has returned to work in recent weeks.

[00:27:33] Speaker 01:
And this says, even as he's returned to work in recent weeks, he was clearly back in the office, his schedule has been uncertain and part time.

[00:27:45] Speaker 01:
As a result of these medical issues,

[00:27:47] Speaker 01:
He was unable to timely file a request or delegate the responsibility to another attorney.

[00:27:51] Speaker 01:
That's highly analogous to the situation here.

[00:27:53] Speaker 01:
Both parties had medical issues a while back.

[00:27:57] Speaker 01:
Both were recovering, getting back to work.

[00:27:59] Speaker 01:
and both had apparently some kind of detrimental side effects which rendered them unable to timely file an extension request or delegate the response.

[00:28:08] Speaker 01:
It's even more egregious in the aluminum extrusions case, because as opposed to a sole practitioner trying to get his work done here, you have someone who's part of Sidley and Austin.

[00:28:18] Speaker 01:
It's a huge firm.

[00:28:19] Speaker 01:
And you're telling me that they couldn't delegate the responsibility to another attorney, and Commerce still found that was sufficient circumstances to

[00:28:29] Speaker 01:
provide a retroactive extension.

[00:28:30] Speaker 01:
And moreover, I'll note that the consequences of the decision in this case are far more extreme than pretty much any other case you'll see.

[00:28:38] Speaker 01:
Typically, when you see a response get rejected and commerce resort to total adverse facts available, that's in the context of a review.

[00:28:45] Speaker 01:
And in that situation, the party literally lives to fight another day.

[00:28:48] Speaker 01:
Here, you've talked about revocation of an order, which means that if the domestic industry

[00:28:52] Speaker 01:
wishes to regain the protections of that order, they're going to have to file and litigate and win.

[00:28:58] Speaker 01:
And actually, they're going to have to be injured before they do that to obtain relief.

[00:29:03] Speaker 04:
This is a dramatically disproportionate draconian outcome under the circumstance here of a single... Is that one of the criteria that Congress required commerce to take into account in deciding whether to grant extensions?

[00:29:17] Speaker 01:
This court has held that an abuse of discretion arises when the agency fails to properly weigh relevant factors.

[00:29:24] Speaker 01:
This is a relevant factor in this case.

[00:29:26] Speaker 04:
No.

[00:29:26] Speaker 04:
Commerce decides what the relevant factors are.

[00:29:28] Speaker 04:
We've expressly said commerce has the discretion to determine under what circumstances it will grant extensions of time.

[00:29:35] Speaker 04:
It's not for us to articulate the factors they must consider.

[00:29:39] Speaker 04:
Congress delegated them broad authority.

[00:29:41] Speaker 04:
We've affirmed that broad authority.

[00:29:43] Speaker 04:
Is there some reason we now need to say to them, for example,

[00:29:47] Speaker 04:
I don't see prejudice having been discussed in this decision.

[00:29:53] Speaker 04:
And I don't see it discussed in most of the other decisions.

[00:29:55] Speaker 04:
Is there some reason you want us to say, which is exactly why I started, do you have a problem with Commerce's legal test?

[00:30:02] Speaker 04:
And you said no.

[00:30:03] Speaker 00:
That's correct.

[00:30:04] Speaker 04:
Because Commerce's legal test in the regulation does not currently require prejudice to be considered as part of the analysis.

[00:30:13] Speaker 04:
But right now, the argument you appear to be making, which the government will have no opportunity to respond to, and you didn't make in your opening argument, is commerce aired because of the draconian nature, a la the prejudice.

[00:30:24] Speaker 04:
Do you understand the problem I'm having with that argument?

[00:30:26] Speaker 04:
You're raising it only in rebuttal.

[00:30:28] Speaker 04:
The government doesn't have a chance to respond.

[00:30:30] Speaker 04:
And it's a totally different argument.

[00:30:32] Speaker 04:
And you started with me by saying, I'm not disagreeing with commerce's articulation of the test.

[00:30:39] Speaker 01:
Well, I believe we did touch on it in our opening argument.

[00:30:43] Speaker 01:
I'd have to go back and review the transcript.

[00:30:45] Speaker 01:
Certainly wasn't trying to sandbag anyone with an argument, for sure.

[00:30:48] Speaker 03:
Can I?

[00:30:49] Speaker 03:
I'm sorry.

[00:30:49] Speaker 03:
Can I take a little longer just going back to what we were talking about in terms of these comparable situations or arguably comparable situations?

[00:30:59] Speaker 03:
Understand, none of these cases were cited to commerce.

[00:31:03] Speaker 03:
And then you go to the CIT, and you don't cite them in your initial thing.

[00:31:08] Speaker 03:
So the government doesn't have a chance to.

[00:31:10] Speaker 03:
You cite one, and the government has a chance to respond to that one, but not to the others.

[00:31:15] Speaker 03:
And then in your final brief,

[00:31:17] Speaker 03:
you add another 12 cases which you consider comparable.

[00:31:22] Speaker 03:
And it's kind of a waiver of a waiver argument.

[00:31:24] Speaker 03:
But when was the government supposed to be able to respond?

[00:31:28] Speaker 03:
I guess, are you saying because they didn't file a motion to strike, then they waived their ability to argue about that?

[00:31:38] Speaker 03:
I'm just trying to clarify what this waiver of the waiver thing is.

[00:31:41] Speaker 01:
Well, our position is that they engaged on it substantively in their response brief.

[00:31:47] Speaker 03:
In the response brief, they only had the one case.

[00:31:50] Speaker 03:
You had the final filing.

[00:31:52] Speaker 03:
Maybe I'm wrong.

[00:31:53] Speaker 03:
I thought these 12 comparable things came in in your final brief, and they didn't have an opportunity to respond, and they didn't have a oral argument.

[00:32:02] Speaker 03:
Am I missing something?

[00:32:03] Speaker 01:
No, no.

[00:32:03] Speaker 01:
You're absolutely correct.

[00:32:04] Speaker 01:
OK.

[00:32:04] Speaker 03:
So they didn't have an opportunity to respond.

[00:32:06] Speaker 03:
So are you saying that we're required to consider it, and they can't file an objection or a waiver argument because they were required to file a motion to strike?

[00:32:17] Speaker 01:
Well, our position is the engagement of the court of national trade.

[00:32:23] Speaker 01:
The court itself addressed the issue on the merits in its opinion.

[00:32:27] Speaker 01:
So it's appropriate to continue making the argument here in this court.

[00:32:32] Speaker 01:
And even if there were an exhaustion claim that had been made and has not been made, we would submit that it would have been futile for us to raise these at the Commerce Department, given the Council's own position that these are all individual fact-based determinations.

[00:32:46] Speaker 03:
Yeah, it's hard for us, though, right?

[00:32:48] Speaker 03:
I mean, because of the standard of review and our reviewing customs, we have this unusual thing that we've lived with for 30 years.

[00:32:55] Speaker 03:
But I mean, if we're reviewing commerce's abusive discretion by commerce, it's kind of an unusual circumstance.

[00:33:02] Speaker 01:
I don't disagree.

[00:33:03] Speaker 01:
My time, I'm significantly over my time, I believe, as far as any questions.

[00:33:07] Speaker 04:
I thank both councils for their arguments.

[00:33:09] Speaker 04:
The case is taken under submission.