Federal Circuit Denies Rehearing Bid Over Decision Reversing AFA for Transformers

The U.S. Court of Appeals for the Federal Circuit in a Nov. 23 order denied plaintiff-appellee Hitachi Energy USA's motion for panel rehearing and rehearing en banc in an antidumping duty case. In a May opinion, the Federal Circuit ruled that the Commerce Department improperly used adverse facts available on respondent Hyundai Heavy Industries Co. over its reporting of service-related revenue. The court said Hyundai had the right to supplement the record and that Commerce can't claim the company shirked its obligations in the review (see 2205240028) (Hitachi Energy USA v. United States, Fed. Cir. #20-2114).

Hitachi, successor to one of the original antidumping duty petitioners in the case, filed for a rehearing, and the court invited the government, Hitachi and Hyundai to respond (see 2207180027). In its response, the government said that it takes no position regarding the merits of the petition itself, but does argue that the court should decline the rehearing because the appeal "does not involve a matter of exceptional importance" (see 2208100008). In Hyundai's response, the company said that Hitachi has not met the "Court’s high bar for a rehearing" and that the panel made no error when it determined that Commerce failed to provide a clear deficiency notice and opportunity to remedy failures in providing information during the original AD investigation.

The appellate court did make one small clerical change to the opinion. Originally, the court ruled that "the statutory entitlement to notice and opportunity to remedy any deficiency is unqualified." In the order, the court added "in the circumstances of the case" after "unqualified."