US Opposes Exporter's Bid for Immediate Appeal of Service Question in Unpaid Duties Case

The U.S. on Sept. 10 opposed exporter Koehler's request for the Court of International Trade to certify its order permitting service on the company's U.S. counsel to allow for an immediate appeal of the order. The government said an immediate appeal will fail to "materially advance the ultimate termination of the litigation" because the U.S. can still effect service through other means if the court's order is reversed (United States v. Koehler Oberkirch GmbH, 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. The U.S. 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, suggesting instead that service must be made via diplomatic channels.

The trade court said that under its rules a foreign company can be served through its U.S. counsel and that international comity didn't require service through diplomatic channels (see 2408210016). Koehler sought an order certifying the decision to allow for an immediate appeal (see 2409030035).

The U.S. said that such an order isn't necessary because, whatever the outcome, "the Government's case would move forward in essentially the same manner." If the U.S. Court of Appeals for the Federal Circuit were to reverse the order, the government "would be left in the same position it was in before moving for alternative service: attempting to serve process on foreign defendants, without a prescribed time limit."

If CAFC affirms the decision, "litigation would proceed just as it is proceeding now," the brief said. All that would be accomplished would be "delay," which the U.S. said "has undoubtedly been defendants' purpose from the beginning." The delay continues to harm the U.S. by depriving it of the AD revenue, the brief said. "Either way, immediate appeal would not move the ball forward."

The government argued that there's little authority for Koehler's suggestion that issues on service of process "should be questions certified for interlocutory review." The cases cited by the exporter only establish that service questions should be appealed where they would end the case. Here, the U.S. could still serve process even if the trade court's order was reversed, the brief said. An "immediate appeal would change little yet delay much."