Koehler Vies for Interlocutory Appeal of Service Question in Unpaid Duties Suit

German paper exporter Koehler asked the Court of International Trade on Aug. 30 to certify for immediate appeal its decision allowing service on the company via its U.S. counsel. Koehler said the issue of service in the case is "appropriate for prompt review" by the U.S. Court of Appeals for the Federal Circuit since the issue is a novel one for both CIT and CAFC and "entirely separate from the underlying merits of the case" (United States v. Koehler Oberkirch, CIT # 24-00014).

The dispute arose in the government's bid to reclaim millions in unpaid antidumping duties on lightweight thermal paper after finding that Koehler manipulated market price data during the 2011-13 period to avoid paying the duties. After the summons and complaint were filed, the government attempted to serve Koehler through its attorneys at Steptoe & Johnson, who were representing the company in a case on a different AD order. Holland & Knight counsel entered notices of appearance in the present case and objected to service through Koehler's U.S. counsel.

Judge Gary Katzmann said that under the trade court's rules a foreign company can be served through its U.S. counsel (see 2408210016). Koehler unsuccessfully argued that international comity required service to be made through diplomatic channels. The court said Koehler failed to establish a German sovereign interest that would be advanced if service was made through these means.

Koehler now seeks the ability to immediately appeal this decision, arguing that all three statutory factors required for interlocutory appeal -- the appeal concerns a "controlling question of law," there's "substantial" difference of opinion and an immediate appeal may "materially advance the ultimate termination of the litigation -- favor its claim.

The exporter said the decision concerns a controlling legal question, since the question of whether service is legally proper is a controlling question and the issue is a "pure question of law." The spat is one on "what the Rules require," which is purely legal, and, if service were to be found to be improper, there "would be significant delay and waste of judicial resources were the parties to proceed through the merits of the case," the brief said.

Koehler added that an interlocutory appeal will "materially advance the ultimate determination of this litigation." Since service is a "threshold issue, it is prudent to have the Federal Circuit resolve the question now," the brief said. Not immediately addressing this "novel legal challenge would force Defendants to participate in the merits of the case and effectively disregard their due process rights to proper service," Koehler argued.