Koehler Says Service Issue Doesn't Have to Be Dispositive for Interlocutory Appeal

German paper exporter Koehler further defended its bid for an interlocutory appeal of the Court of International Trade's decision allowing the government to effect service on the company through its U.S. counsel (United States v. Koehler Oberkirch GmbH, CIT # 24-00014).

The U.S. said the court should deny the request for certification on the grounds that it wouldn't "materially advance the ultimate termination of the litigation" since the U.S. can still effect service through other means if the court's order is reversed (see 2409110033).

In response, Koehler argued that there's no authority "in this circuit to support the proposition that interlocutory appellate review is inappropriate because an error can be corrected on remand." Suggesting otherwise, "particularly where the error at issue raises concerns [about] fundamental rights," would "disincentivize litigants and courts from ensuring that key, threshold questions are properly resolved from the outset of a case," the company said.

The trade court held 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 in response that, if CIT's order was rejected, the case would essentially continue as is, since service could be conducted through other means.

Koehler, after being granted leave from the court to file a reply, said an issue "need not resolve the action in its entirety" to qualify for interlocutory review. Instead, the court can consider if interlocutory reversal "might save time for the district court, and time and expense for the litigants." In all, the exporter cited six cases across various jurisdictions in which service issues were certified for interlocutory appeal.

The exporter additionally addressed the government's issues with three of its cited cases the company used to show why certification isn't just allowed but "appropriate." Koehler said that ignoring that two of the cases "say exactly what they are cited for," the U.S. said there's "little authority for that broad suggestion."

The government said the 1972 Supreme Court case Tidewater Oil Co. v. U.S. refers to "threshold political issues" as "potentially dispositive ones." Koehler replied that the Supreme Court "clearly explained that section 1292 review is suitable for threshold issues that do not require extensive record analysis."