AD Petitioner to Take Case Over PMS Adjustment to Sales-Below-Cost Test to Supreme Court

Antidumping petitioner Welspun Tubular plans to appeal to the Supreme Court over the question of whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value in an antidumping proceeding. According to a March 22 brief filed at the U.S. Court of Appeals for the Federal Circuit, Welspun wants a stay in the mandate issued by the appellate court nixing the PMS adjustment while the Supreme Court considers the case (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).

Welspun told the Federal Circuit that it will suffer irreparable harm if the stay is denied and that there's a reasonable probability that four justices will consider the issue "sufficiently meritorious" to grant the petition and that a majority of the Supreme Court will reverse the appellate court's ruling.

In the case, brought by Hyundai Steel Company, the Federal Circuit held that the statute -- namely, a portion of the 2015 Trade Preferences Extension Act -- only permits a PMS adjustment for constructed value (see 2112100039). The decision upheld a long line of Court of International Trade opinions finding the same. Welspun said that the decision was wrongly decided, arguing in a motion for rehearing 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 (see 2202090045). The rehearing motion was ultimately denied (see 2203160033).

Welspun believes that there's a reasonable chance four justices will find the issue important enough to grant the writ of certiorari. The company said it has already shown that the question of a PMS adjustment has created a "split" between the Federal Circuit and other circuits, namely the U.S. Court of Appeals for the D.C. Circuit. "Given the substantial split between the Federal Circuit and other circuits regarding a key principle of administrative law and judicial review under Chevron, there is a reasonable probability that four Justices will consider the issue meritorious enough to grant certiorari," the brief said.

Welspun also said that there's a fair chance a majority of the Supreme Court justices will reverse the Federal Circuit's opinion "in view of the substantial split between this Circuit and other circuits on the use of expressio unis reasoning to interpret statutory silence in the administrative law setting." Welspun argued that, by saying that such a PMS adjustment is not permitted given that it was not included in permitted adjustments to normal value, the Federal Circuit deviated from the Supreme Court's ruling in Chevron.