Slip Op. 15-
UNITED STATES COURT OF INTERNATIONAL TRADE
________________________________
PAPIERFABRIK AUGUST KOEHLER SE, :
:
Plaintiff, : Before: Nicholas Tsoucalas,
: Senior Judge
v. :
: Court No.: 13-00163
UNITED STATES, :
:
Defendant, : PUBLIC VERSION
:
and :
:
APPLETON PAPERS, INC., :
:
Defendant-Intervenor. :
OPINION
[Plaintiff’s motion to amend judgment is denied.]
Dated:-DQXDU\
F. Amanda DeBusk, Matthew R. Nicely, John F. Wood, Eric S. Parnes,
Lynn G. Kamarck, and Alexandra B. Hess, Hughes Hubbard & Reed LLP,
of Washington, DC, for plaintiff.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice, of Washington, DC, for
defendant. With him on the brief were Joyce R. Branda, Assistant
Attorney General, Jeanne E. Davidson, Director, and Reginald T.
Blades, Jr., Assistant Director. Of counsel on the brief was
Jessica M. Link, Attorney, Office of the Chief Counsel for Trade
Enforcement and Compliance, U.S. Department of Commerce, of
Washington, DC.
Gilbert B. Kaplan and Daniel L. Schneiderman, King & Spalding LLP,
of Washington, DC, for defendant-intervenor.
Court No. 13-00163 Page 2
Tsoucalas, Senior Judge: Plaintiff Papierfabrik August
Koehler SE (“Koehler”) moves to amend this Court’s judgment in
Papierfabrik Koehler Se v. United States, 38 CIT ___, ___ Slip
Op. 14-102, (September 3, 2014) (“Koehler I”), pursuant to USCIT
R. 59. Koehler I upheld Defendant United States Department of
Commerce’s (“Commerce”) Final Results, rejecting corrected sales
data submitted by Koehler and applying total adverse facts
available (“AFA”) in the third administrative review (“AR3”) of
lightweight thermal paper from Germany. Lightweight Thermal Paper
From Germany: Final Results of Antidumping Duty Administrative
Review; 2010–2011, 78 Fed. Reg. 23,220, 23,220 (Apr. 18, 2013)
(“Final Results”). Koehler seeks to amend the judgment in Koehler
I denying its motion for judgment on the agency record. Pl.’s
Mot. to Amend J. at 1-6, October 3, 2014, ECF No. 127. Koehler
requests that the case be remanded to Commerce to calculate a new
antidumping rate utilizing data Koehler submitted with its
original questionnaire response. Id. Commerce and Defendant-
Intervenor Appvion Inc. (formerly Appleton Papers Inc.) oppose
Koehler’s motion. Def.’s Resp. to Mot. Amend J. at 1-6, November
3, 2014, ECF No. 129; Def. Intervenor’s Resp. in Opp’n to Pl.’s
Mot. to Amend J. at 1-7, October 22, 2014, ECF No. 128. The court
assumes familiarity with the record and proceedings to date. For
the following reasons Koehler’s motion is denied.
Court No. 13-00163 Page 3
Pursuant to USCIT Rule 59(a)(1)(B), “[t]he court may, on
motion, grant a new trial or rehearing on all or some of the issues
– and to any party . . . after a nonjury trial, for any reason for
which a rehearing has heretofore been granted in a suit in equity
in federal court.” USCIT R. 59(a)(1)(B). A motion to amend a
judgment should be granted if the “movant demonstrate[s] that the
judgment is based on manifest errors of law or fact.” Union Camp
Corp. v. United States, 23 CIT 264, 270, 53 F. Supp. 2d 1310, 1317
(1999).
A court should not disturb its prior decision unless it
is manifestly erroneous. Starkey Labs., Inc. v. United States, 24
CIT 504, 505, 110 F. Supp. 2d 945, 946-47 (2000). The purpose of
a rehearing is not to relitigate the case. Mita Copystar America
Inc. v. United States, 22 CIT 2, 3, 994 F. Supp. 393, 394 (1998),
rev’d on other grounds, 160 F.3d 710 (Fed. Cir. 1998).
Koehler argues that the court made manifest errors of
law and fact in upholding Commerce’s Final Results which rejected
corrected sales data submitted by Koehler and applied total AFA.
Pl.’s Mot. to Amend J. at 1-6. Although Koehler admits that some
of its employees engaged in misconduct resulting in incomplete
questionnaire responses, Koehler claims that its management was
not involved in the deception. Id. at 2. Koehler insists that
once the issue of omitted home market sales was brought to senior
Court No. 13-00163 Page 4
management’s attention, Koehler undertook a thorough review of all
underlying sales and included necessary corrections. Id. at 3.
This court declines to relitigate the instant case. See
Mita Copystar, 22 CIT at 3. As the court found in its opinion,
“Koehler’s argument that ‘supervisors’ and ‘senior management’
were unaware of the transshipments is not supported by the record.”
Koehler I, at 10-11. Additionally, the court ruled that:
Koehler did not provide Commerce with any evidence
supporting this claim during the review, and its
attempt to extend this claim to the vaguely-titled
“supervisors” and “senior management” is similarly
undocumented. In fact, Koehler admitted that
[[
]]. (“[[
]].”)
Koehler I, at 11 (citations omitted). Koehler was responsible for
the actions of its entire company, especially any actions that may
have had an effect on its reporting to Commerce. Id. This Court
did not err in rejecting Koehler’s data and the results of the
independent investigation.
Koehler posits that such aberrational behavior by a
small group of employees does not call into question the veracity
of the sales Koehler did properly report to Commerce nor the
veracity of Koehler’s submission of the data following an
investigation by outside counsel and auditors. Pl.’s Mot. to Amend
J. at 3. Koehler argues that the law does not condemn timely-
Court No. 13-00163 Page 5
submitted data that are not affected by any inattentiveness,
carelessness, or inadequate record keeping. Id.
The Court previously considered this very same argument
in its opinion, and it refuses to relitigate the issue. See Mita
Copystar, 22 CIT at 3. As the Court noted previously, Commerce’s
decision to apply total AFA was appropriate, because by concealing
certain home market sales necessary for calculating the dumping
margin, Koehler undermined both the credibility and reliability of
its data overall such that Commerce could not calculate the normal
value and was unable to perform any comparisons to U.S. prices.
Koehler I, at 18.
Furthermore, Koehler claims that the instant case is
“exactly like” Gerber Food (Yunnan) Co., Ltd. v. United States, in
that misconduct affecting certain discrete sales does not justify
wholesale rejection of all of respondent’s data. See Gerber Food
(Yunnan) Co., Ltd. v. United States, 29 CIT 753, 754, 387 F.Supp.2d
1270, 1272-73 (2005); Pl.’s Mot. to Amend J. at 6. Koehler’s
reliance on Gerber is misplaced. See Gerber, 29 CIT at 768. As the
Court discussed in Koehler I, the instant case is not a situation
“where the respondent’s conduct affected only a discrete category
of information.” Koehler I, at 18. Additionally, the instant case
is also distinguishable from Gerber, because in Gerber the
information withheld was not necessary to the calculation of
antidumping duty assessment rates, whereas here, the information
Court No. 13-00163 Page 6
withheld was necessary for calculating the antidumping rates. See
Gerber, 29 CIT at 768.
Finally, Koehler argues that Commerce should not be
permitted to corroborate the total AFA rate in AR3 using data
Commerce deemed unreliable in the second Administrative Review
(“AR2”). Pl.’s Mot. to Amend J. at 5. Once again, this Court
previously considered this issue in Koehler I and found that the
remand results of AR2 are not on the record of AR3. Koehler I, at
24 n.8; QVD Food Co. v. United States, 658 F.3d 1318, 1324–25
(Fed. Cir. 2011). This court found that Commerce may use
transaction-specific margins from data found unreliable for the
purpose of calculating a weighted average dumping margin in order
to corroborate an AFA rate. Koehler I, at 24 n.8.
Accordingly, the court finds that its judgment was not
based on manifest errors of law or fact. See Union Camp Corp.
v. United States, 23 CIT at 270. Koehler’s motion is denied.
ORDER
In accordance with the foregoing, it is hereby
ORDERED that Plaintiff Koehler’s Motion to Amend
Judgment is denied.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated:-DQXDU\
New York, New York