CAFC Sets New Standard for Reviewing Commerce's Rejection of Untimely Submissions

In reversing Commerce's rejection of the submission, Judges Timothy Dyk and Sharon Prost said that future courts considering the agency's rejection of untimely documents shall consider the "remedial-not-punitive purpose" of AD/CVD laws, the burden imposed on Commerce that would result from accepting the submission, whether "any finality concerns would be implicated" and the "late-filing party's efforts" and its "reasons for the submission's untimeliness."

In the CVD investigation on silicon metal from Kazakhstan, Tau-Ken was a mandatory respondent and was instructed to file the subsidy part of its questionnaire response on Aug. 31, 2020. The respondent filed multiple extension requests, and while Commerce never granted the company the full length of the extension, the company had until Sept. 15 to file its response. For each extension request, Tau-Ken said more time was needed due to the amount of information requested, the inexperience of Tau-Ken staff with AD/CVD proceedings and COVID-19-related issues.

On Sept. 15, counsel for Tau-Ken had "technical" issues in submitting the documents, despite starting to submit the documents before 4 p.m. as Commerce instructs, and requested an emergency extension at 3:50 p.m. Under Commerce's practice, if the agency doesn't respond to a day-of extension request, the party automatically gets until 8:30 a.m. the next business day to make its submission. The agency never responded to the emergency extension request, and Tau-Ken submitted the documents the next morning. However, the submission wasn't complete until 10:11 a.m., which is one hour and 41 minutes past the deadline.

Commerce rejected the submission as being untimely, also noting that the submission was incomplete, since it lacked the business proprietary versions of certain exhibits. The respondent ultimately was hit with a 160% adverse facts available rate due to the untimely submission. In responding to Tau-Ken's request to reconsider the rejection of the submission, Commerce heavily relied on the CAFC's decision in Dongtai Peak Honey Indus. v. U.S. and clarified that it was rejecting the document solely due to its lateness and not the fact that it was incomplete.

The Court of International Trade, in upholding Commerce's decision, also relied on Dongtai Peak, in which the court said Commerce wasn't required to show good cause for rejecting a respondent's untimely submission (see 2207150035). In Dongtai Peak, the respondent asked for an extension two days after its initial filing deadline, citing a national holiday, overlapping deadlines and technical issues. Commerce rejected the extension request on the grounds that all of the issues cited by the respondent could have been addressed prior to the filing deadline. The court affirmed.

Prost, writing for the majority, distinguished the present case from Dongtai Peak and said both the trade court's and the agency's reliance on the decision is "misplaced." The court clarified that "Dongtai Peak was not a transformative case in the law of extension requests and untimely submissions" but was rather a "straightforward application of basic principles and a deferential standard of review to the facts of that case." The facts of the present case and Dongtai Peak also make the prior case inapposite, the court said.

The majority then sought to establish the standard of review going forward, adopting the standards set out by the trade court in Grobest & I-Mei Industrial (Vietnam) v. U.S. The standards, while not exhaustive, are "the remedial-not-punitive purpose" of AD/CVD laws and the "goal of determining margins or rates as accurately as possible," any burden on Commerce, "whether any finality concerns would be implicated by accepting the untimely submission" and the late-filing party's efforts.

Applying these standards, Prost said it's clear that Commerce abused its discretion in rejecting Tau-Ken's submission.

There's "no dispute" the rejection of the submission "significantly impeded" Commerce's goal of determining a CVD rate as "accurately as possible," the decision said. Tau-Ken also said accepting the submission wouldn't have burdened Commerce, and, in response, the government doesn't identify "any such burden or hindrance" and instead says Tau-Ken's position "fails to account for the wide discretion afforded to Commerce in establishing its deadlines and in determining the time in which it needs information."

Prost held that this vague and repeated reference to Commerce's discretion fails to account for the other factors at play, including the burden the agency may face and the lack of any finality concerns. The judge explicitly said "no finality concerns would have been implicated by accepting the September 16 submission," since the date the documents were submitted came two months before the preliminary determination and more than five months before the final. With regard to the respondent's efforts in the investigation, Commerce noted that Tau-Ken timely filed many responses, the company's counsel "adhered to the ACCESS handbook’s advice not to begin filing after 4:00 p.m." and Tau-Ken filed its last extension request immediately after encountering technical issues.

In responding to the government's arguments, Prost said that while Commerce has the discretion to set and enforce its deadlines, that doesn't relieve the agency of "adequately explaining its denial of an extension request or its rejection of an untimely submission when, as here, there are compelling countervailing considerations."

The U.S. argued that Commerce's rejection was justified, since Tau-Ken's one-day extension request was too "vague" in describing the technical issues it faced. Prost said this justification has several issues, including the fact that "Commerce itself did not rely on it" and the court won't uphold an agency's action on a ground the agency itself didn't invoke.

It's also "far from clear that, at the time Tau-Ken’s counsel filed the one-day-extension request, he even could have articulated the precise technical issues he was encountering," the decision said. Even if counsel could have, it wouldn't have been "unreasonable for counsel -- facing a rapidly approaching deadline -- to prioritize simply trying to file the response over crafting a more robust explanation of those issues in the extension request," the court said.

While the U.S. said Tau-Ken's "experienced" counsel should have tried to contact the ACCESS help desk or another Commerce official, Prost said this criticism is "insufficient," since the U.S. gave no instruction requiring such action. Lastly, while the government argued that Tau-Ken had already received multiple extensions, Prost said context is key, noting that Commerce never fully granted the respondent's requested extensions.

In his dissent, Hughes said Commerce didn't abuse its discretion "by refusing to wholesale adopt Tau-Ken’s subjective view as to how much additional time was warranted in light of Tau-Ken’s newness to the process, COVID, and the volume of information requested." The judge said the Supreme Court has said that absent "constitutional constraints or extremely compelling circumstances," agencies are free to "fashion their own rules of procedure and to pursue methods of inquiry capable of permitting them to discharge their multitudinous duties.”

Here, Commerce has tight deadlines and must be free to administer CVD laws, the judge said.

Hughes argued that the majority imposed an "improper burden" on Commerce by reversing the agency's decision "because it did not make a showing of prejudice as a result of the delay." The judge said such a burden is "impractical given the volume of investigations it handles."

The judge also said that "reasonable minds may vary regarding whether Tau-Ken’s counsel acted diligently to upload its responses after facing technological delays." Hughes noted that, even after Tau-Ken's counsel received an automatic deadline extension, he didn't even "begin to try uploading anything until 5:31 a.m., and did not finish uploading its submission until after 10 a.m. that day."

(Tau-Ken Temir v. United States, Fed. Cir. # 22-2204, dated 08/04/25; Judges: Sharon Prost, Timothy Dyk and Todd Hughes; Attorneys: Peter Koenig of Squire Patton for plaintiffs-appellants led by Tau-Ken Temir; Brendan Jordan for defendant-appellee U.S. government; Jennifer Smith-Veluz of The Bristol Group for defendants-appellees Globe Specialty Metals and Mississippi Silicon)