CAFC Rejects Bid to Set Apart PMS Adjustment Challenge From Precedential Court Opinion
The U.S. Court of Appeals for the Federal Circuit in an Aug. 26 opinion rejected the plaintiff-appellants' appeal seeking to establish that the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value. The appellate court previously rejected this claim in Hyundai Steel v. U.S. The appellants, led by American Cast Iron Pipe Company, sought to differentiate its case from Hyundai Steel by arguing that its case appeals an original investigation while the Hyundai Steel matter challenged an administrative review. The Federal Circuit failed to see how this would result in a different outcome and ruled against Borusan Mannesmann Boru Sanayi ve Ticaret A.S.
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The Hyundai Steel ruling said that the statute -- in particular, a section of the 2015 Trade Preferences Extension Act -- does not permit such a PMS adjustment (see 2112100039). Rather, the statute only allows a PMS adjustment for constructed value. This opinion would seem to have settled Borusan's case -- a fact the appellants recognized. However, they still attempted to set the case apart based on the fact that the Hyundai Steel case concerned an administrative review and their case concerned the underlying investigation. "But they fail to provide any basis for how that could result in a different outcome," the Federal Circuit said.
(Borusan Mannesmann Boru Sanayi ve Ticaret v. United States, Fed. Cir. #22-1502, dated 08/26/22, Judges Alan Lourie, Raymond Chen and Leonard Stark. Attorneys: Julie Mendoza of Morris Manning for plaintiff-appellee Borusan Mannesmann Boru Sanayi ve Ticaret; Timothy Brightbill of Wiley Rein for plaintiff-appellants, led by American Cast Iron Pipe Company)