Full Court Rehearing Request in Case Over PMS Adjustment Likely to Fail, Exporters Tell CAFC

The U.S. Court of Appeals for the Federal Circuit should deny defendant-appellant Wheatland Tube Company's bid to stay proceedings in an antidumping duty case related to use of a particular market situation adjustment to the sales-below-cost test when determining normal value, because the appeals court is unlikely to overturn its own ruling against the judgment in a separate case Wheatland points to as the reason for the stay, plaintiff-appellees Husteel Co. and Hyundai Steel Company said in a Jan. 28 brief (Husteel Co., Ltd. v. United States, Fed. Cir. #22-1300).

Wheatland wanted the stay in Husteel's case since the particular market situation in the sales-below-cost test issue is also central to a separate case involving Hyundai Steel Co. case (see 2112100039). In the Hyundai Steel case, the Federal Circuit said that no such adjustment was permitted by the statute.

The next step in the Hyundai Steel case is for the ADD petitioner, Welspun Tubular, to request a full court rehearing -- something the petitioner has already been granted an extension of time to do (see 2201030067). Husteel and Hyundai, meanwhile, said that stay in their case pending the resolution of this full court rehearing request is not warranted since Wheatland has not shown that Welspun is likely to succeed on the merits -- one of the requirements for a stay to be granted.

"Here, Defendant-Appellant grounds its motion in nothing but mere speculation that a 'forthcoming request for rehearing en banc' will be granted and ultimately impact the disposition of the case at bar," the brief said. "... But Defendant-Appellant does not even offer any basis to expect that a forthcoming motion for rehearing en banc would be granted and, if it were granted, any reason whatsoever to expect that a rehearing en banc would yield a different result than the Court’s December 10, 2021 opinion."

The plaintiff-appellees pointed out that rehearings are rarely granted, and rehearing is not likely to end in a different result. Husteel and Hyundai further argued that Wheatland failed to clear any of the other requirements for granting a stay -- namely, whether the defendant-appellant would be irreparably harmed without the stay, whether the stay will injure any of the other parties and whether a stay serves the public interest.