Hyundai, DOJ Oppose Rehearing of CAFC Decision Reversing AFA for Transformers

The U.S. Court of Appeals for the Federal Circuit should not grant a rehearing petition to Hitachi in an antidumping duty case, argue both the U.S. government and defendant-appellant Hyundai in two separate Aug. 9 responses at CAFC (Hitachi Energy USA v. U.S., Fed. Cir. #20-2114).

In a May opinion, the Federal Circuit ruled that the Commerce Department improperly used adverse facts available on Hyundai 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, 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."

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. "Hitachi repeats arguments that the Panel considered and rejected" without providing justification for a rehearing, Hyundai argued. "The fact that Hitachi disagrees with the Panel’s decision does not provide legitimate grounds for disregarding it and conducting a rehearing."