CIT Grants Honey Exporters Leave to File Complaint Out of Time
Over opposition from the government, which said that the Court of International Trade didn't have the power to extend complaint deadlines, the trade court let honey exporters led by Ban Me Thout Honeybee file their complaint out of time in an order Aug. 15. The court said it would follow up its order with its reasoning in a later filing.
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On Aug. 12, the exporters pushed back against the government's claim that CIT couldn't let them file late. They said the claim “relies on a single Federal Circuit case from nearly four decades ago” (Ban Me Thuot Honeybee Joint Stock Company v. United States, CIT # 25-00085).
The exporters brought their case this year challenging the 2021-23 administrative review of the antidumping duty order on raw honey from Vietnam. After the case was dismissed June 16, they sought leave to file their complaint out of time (see 2506200001).
They explained in June that their counsel mistakenly believed their initial complaint had been filed with the court by its deadline; he hadn’t double-checked because the U.S. consented to his request for a Form 24 statutory injunction two days later, and the government doesn’t usually do that until a complaint has been filed. They argued that the U.S. wasn’t prejudiced because it received the unfiled complaint on time with their counsel’s injunction request.
The U.S. opposed their motion to file late on July 22, saying that CIT was barred from granting the exporters relief by the binding precedent of the 1986 U.S. Court of Appeals for the Federal Circuit case Georgetown Steel Corp v. United States. CIT’s Rule 60(b)(1), Rule 60(b)(6) and Rule 6(b)(1)(B), which let the court grant a request to file late due to “mistake, inadvertence, surprise, excusable neglect, or any other reason,” don’t apply as a result of “the statutory jurisdictional bar to this litigation” found in 28 U.S.C. 2636(c) and 19 U.S.C. 1516a, it said.
The exporters disagreed.
“A line of subsequent Supreme Court decisions supplants the Federal Circuit’s rationale in Georgetown,” they said.
These cases, including Wilkins v. United States, Boechler v. Commissioner, Sebelius v. Auburn Regional Medical Center and United States v. Kwai Fun Wong, stand for the proposition that federal courts’ procedural requirements are only jurisdictional if Congress “clearly states” as such, they said. In the latter case, the Supreme Court noted that, as a result, “most time bars are nonjurisdictional.”
Further, they said, CIT has already found in other cases that the time limits in 28 U.S.C. 2636(c) and 19 U.S.C. 1516a(a)(2) time limits aren’t jurisdictional. In the 2015 case Icdas Celik Enerji Tersane v. Ulasim Sanayi, for example, the trade court stated directly that “hard reality here is that Wong has extended Arbaugh and its progeny to effectively supplant the Federal Circuit's rationale in Georgetown.”
Two recent cases the U.S. cited in support of its argument don’t actually help it, they said. Neither case mentions Georgetown more than once, and both use it in dicta as support for a “general” rule that the court won’t consider untimely issues, they said.
The exporters also said that the U.S. failed to address any of their arguments regarding whether their counsel’s actions constituted “excusable neglect” or whether a late-filed complaint would be prejudicial to the government.