CAFC Denies Mandamus Relief for Paper Exporter on Issue of Service Through US Counsel
The U.S. Court of Appeals for the Federal Circuit on Jan. 16 denied exporter Koehler Oberkirch's petition for writ of mandamus, which sought to have the appellate court review the Court of International Trade's decision that the government could effect service on the company via its U.S. counsel. Judges Timothy Dyk, Tiffany Cunningham and Leonard Stark said Koehler failed to meet the "demanding standard" for granting mandamus relief (In Re Koehler Oberkirch, Fed. Cir. # 25-106).
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Cunningham wrote the order, finding that Koehler could wait until the final resolution of the case at CIT to raise the issue of service and that the company failed to show that the trade court exceeded its authority. "Far from it," Cunningham said, ruling that Koehler's main claim that service through domestic counsel isn't allowed by CIT Rule 4(e)(3), which only allows service at a place "not within any judicial district of the United States," to be at odds with decisions of the CAFC and other courts "dealing with materially identical language."
The judge noted the Federal Circuit's Nuance Communications v. Abbyy Software House decision as controlling on the issue.
The issue arose from the government's customs penalty suit against Koehler, which alleged that the company failed to pay over $193 million in antidumping duties with interest on thermal paper entries from 2009 to 2011. The U.S. first tried to serve Koehler through the Hague Convention, though a German court said the convention was inapplicable because the case isn't a civil or commercial matter. The German court suggested service via diplomatic channels.
The government then served Koehler via its U.S. counsel. The trade court permitted the move, finding that even if service couldn't be conducted through Koehler's U.S. counsel, it could be effected through other means making any delay in the proceedings unnecessary (see 2408210016).
After its bid for interlocutory appeal was thwarted (see 2410100018), Koehler filed a mandamus petition at CAFC, arguing that the issue of whether service can be carried out through a defendant's U.S. counsel is undecided in this circuit.
Addressing the petition, Cunningham said that three conditions must be met to create the extraordinary circumstances needed for mandamus relief. The party must show a "clear and indisputable" right to relief, it must establish there to be no other method of attaining the desired relief and the court must be satisfied that writ is appropriate under the circumstances. The judge said Koehler failed to meet this standard.
On the company's "secondary contention" that CIT shouldn't have allowed alternative service, since the German court requested that service be made through diplomatic channels, Cunningham said this argument also fails. In Nuance Communications, CAFC already said Federal Rule of Civil Procedure 4(f)(3), which has nearly identical language to CIT Rule 4(e)(3), stands "on equal footing" with the other service provisions. While some courts have looked to whether service has been "reasonably attempted" by "conventional means," those considerations only "guide the exercise of discretion," the court said.
The court said it hasn't been shown "compelling reason to reach a different conclusion as to CIT Rule 4(e)(3) on limited review," adding that it's "not prepared to say the trial court clearly abused its considerable discretion in ordering such service."