PMS Question 'Completed,' CAFC Should Grant Affirmance, Turkish Exporter Tells Federal Circuit

Antidumping duty petitioner Wheatland Tube Co. failed to rebut plaintiff Borusan Mannesmann's motion that no substantial question remains regarding Wheatland's appeal of an antidumping duty case related to a particular market adjustment, Borusan said in an April 20 reply brief at the U.S. Court of Appeals for the Federal Circuit. Since the Federal Circuit in a separate case found that particular market situation adjustments cannot be made to the sales-below-cost test, the issue is "completed," so the court should affirm Borusan's motion for summary affirmance, the brief said (Borusan Mannesmann Boru Sanayi ve Ticaret v. United States, Fed. Cir. #21-2097).

The case, originally brought to the Court of International Trade, challenges the Commerce Department's final results in the administrative review of the antidumping duty order on circular welded pipes and tubes from Turkey. After the Federal Circuit issued its judgment in the key Hyundai Steel case, Borusan moved for affirmance on the issue. Wheatland opposed this, arguing that it would be inconvenienced by the need to file a petition for certiorari at the Supreme Court to preserve appellate rights should the affirmance be granted.

"The requirement of a party to bear its own legal costs is a wholly insufficient ground for withholding summary disposition of an appeal as to which the outcome is not in doubt," Borusan's reply said. "This is particularly true where, as here, Wheatland Tube’s motion to stay this consolidated appeal would have the effect of further delaying this Court’s consideration of Borusan’s appeal of the same antidumping review results, which presents an issue of first impression that will affect the outcome of multiple other appeals before this Court and the Trade Court."