Motion for Rehearing Over PMS Adjustment in AD Cases Unlikely to Be Granted, Exporters Tell CAFC

The U.S. Court of Appeals for the Federal Circuit should not grant a stay of proceedings in a lawsuit challenging the Commerce Department's particular market situation in an antidumping duty sales-below-cost test because the defendants seeking the stay haven't shown they're likely to succeed in the case, plaintiff-appellees Dong-A Steel Co. and Kukje Steel Co. said in a Feb. 14 brief. A trio of defendant-appellants -- Atlas Tube, Searing Industries and Nucor Tubular Products -- had requested a stay while the Federal Circuit wraps up another case wherein Welspun Tubular requested a full court rehearing over an identical question, but the Federal Circuit is unlikely to grant the rehearing or overturn its earlier decision, Dong-A and Kukje said (Dong-A Steel Company v. United States, Fed. Cir. #21-2153).

Welspun seeks rehearing of a December 2021 Federal Circuit decision that said the statute -- namely, a portion of the 2015 Trade Preferences Extension Act -- only permits a PMS adjustment for constructed value (see 2112100039). Welspun said that the decision in the case, Hyundai Steel Company v. U.S., was wrongly decided considering that Commerce's interpretation of the AD statute is entitled to "special deference" and that ordinary canons of statutory construction in administrative law contexts has reduced force and cannot satisfy step one of the Chevron deference test. The petitioner moved for a full court rehearing of the decision (see 2202040060).

Atlas, Searing and Nucor want their case stayed until this motion is fully considered. Dong-A and Kukje told the appellate court that the trio has not made the appropriate showing for a stay. "Defendants-Appellants do 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 in Hyundai Steel," the brief said. "Indeed, Defendants-Appellants have asserted no points of law or fact that they believe 'the court has overlooked or misapprehended,' as is required by Federal Circuit Rule 40 to justify rehearing." Notably, however, Dong-A and Kukje's brief makes no mention of Welspun's motion for rehearing despite it having already been filed.

"Although we do not know what possible grounds Welspun may raise in support of any forthcoming petition for rehearing en banc, what is clear is that (1) the Federal Circuit’s own guidance indicates that such requests are rarely granted, and (2) over the course of many months across multiple administrative proceedings, court appeals, and remands, parties have explored and refined all possible arguments on the question of whether the particular market satiation [sic] provision of 19 U.S.C. § 1677b(e) applies for purposes of the sales below cost test in 19 U.S.C. § 1677b(b) -- these arguments were all presented to, and considered by, the Federal Circuit in the appeal at issue," the plaintiff-appellees said. Dong-A and Kukje also argued that Atlas, Searing and Nucor failed to show that they would be irreparably harmed without the stay.