US Urges CAFC to Reject Mandamus Relief on Question of Service Through Exporter's US Counsel

The U.S. argued that mandamus relief at the U.S. Court of Appeals for the Federal Circuit is improper on the question of whether the government properly served exporter Koehler Paper through its U.S. counsel. Responding on Nov. 6 to Koehler's petition for writ of mandamus, the U.S. said mandamus relief isn't "clear and indisputable" and that an appeal from a final order from the Court of International Trade "should not be inadequate" (In re Koehler Oberkirch GmbH, Fed. Cir. # 25-106).

The U.S. claimed that "the majority of courts to have addressed arguments like Koehler’s, including this Court, has rejected them," telling the CAFC that mandamus shouldn't be granted based on a minority view of the service issue.

The issue comes from the government's customs penalty suit against Koehler, alleging that the company failed to pay over $193 million in antidumping duties with interest on thermal paper entries during 2009-2011. The U.S. first tried to serve the exporter by sending a request for Hague Convention service to a German court, though the foreign court rejected this attempt and requested that service be effected through diplomatic channels.

The trade court instead allowed the U.S. to serve the company through its U.S. counsel, later rejecting Koehler's attempt to certify that decision for interlocutory appeal (see 2408210016 and 2410100018). The court noted that if service couldn't be carried out via the company's U.S. counsel, it could be conducted through other means, including through diplomatic channels.

Koehler filed a petition for writ of mandamus at CAFC, claiming that the issue of whether CIT rules allow service on a foreign defendant through its U.S. counsel is a "basic, undecided question in this Circuit that is likely to recur" (see 2410310024).

In response, the U.S. said the exporter's reading of CIT Rule 4(e) regarding service "is simply wrong." CAFC panels "have routinely denied petitions for writs of mandamus seeking vacatur of orders entered under Fed. R. Civ. P. 4(f)(3) that are materially indistinguishable from the trial court’s order," the brief said. Nearly all courts agree that this type of service "is permissible," the U.S. said.

Koehler's reading of this rule rests on just three court decisions, "without attempting to distinguish or even acknowledging any adverse cases," and shows that mandamus relief isn't "clear or indisputable." CIT can't have clearly abused its discretion by siding with the "near-unanimous" view of the issue "over the minority view," the brief said.

The exporter alternatively claimed that there's no basis in the record for the court's order, though the U.S. said this claim is nothing more than a "complaint about how the trial court exercised its discretion rather than a demonstration of clear and indisputable right to relief." While Koehler says more was needed to get alternative service, the U.S. said it was enough that it didn't get waiver of service, was denied requests for service under the Hague Convention and could have a potential one year or more delay due to service through diplomatic channels.

The government added that mandamus review should be rejected, since CAFC must wait for a final adjudication of the case at CIT. While Koehler said this route is inadequate due to the risk of incurring significant expenses through discovery, motions practice and trial, the government said this risk is at play in every case brought on a petition for writ of mandamus. In addition, Koehler concedes that if alternative service were rejected, service could be completed through diplomatic channels -- a move that still would lead to the hefty litigation costs.