Papierfabrik August Koehler SE v. United States

Slip Op. 13-141
UNITED STATES COURT OF INTERNATIONAL TRADE
PAPIERFABRIK AUGUST KOEHLER SE, 	:
:
Plaintiff, 	:
: 	Before: Nicholas Tsoucalas,
v. 	: 	Senior Judge
:
UNITED STATES, 	: 	Court No.: 13-00163
:
Defendant, 	:
:
and 	:
:
APPLETON PAPERS INC., 	:
:
Defendant-Intervenor. 	:
:
OPINION and ORDER
[Plaintiff’s 	Motion 	for 	Expedited 	Briefing 	and 	Consideration 	is
denied.]
Dated: November 14, 2013
F. Amanda DeBusk and Matthew R. Nicely, 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 	Stuart 	F. 	Delery,
Assistant 	Attorney 	General, 	Jeanne 	E. 	Davidson, 	Director, 	and
Reginald 	T. 	Blades, 	Jr., 	Assistant 	Director. 	Of 	counsel 	on 	the
brief was Jessica M. Forton, Attorney, Office of the Chief Counsel
for Trade Enforcement and Compliance, U.S. Department of Commerce,
of Washington, DC.
Daniel L. Schneiderman and Gilbert B. Kaplan, King & Spalding
LLP, of Washington, DC, for defendant-intervenor.
Tsoucalas, Senior Judge: 	Before the court is plaintiff
Papierfabrik August Koehler SE’s (“Koehler”) Motion for Expedited
Briefing 	and 	Consideration, 	ECF 	No. 	59 	(Nov. 	5, 	2013) 	(“Mot. 	to
Expedite”). 	Plaintiff 	asks 	the 	court 	to 	expedite 	briefing 	and
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consideration 	of 	its 	Motion 	to 	Compel 	Commerce 	to 	Strike
Information Or, In the Alterative, Compel Commerce to Disclose the
Information, 	ECF 	No. 	57 	(Nov. 	5, 	2013) 	(“Mot. 	to 	Compel”).
Defendant U.S. Department of Commerce (“Commerce”) and defendant-
intervenor 	Appvion, 	Inc. 	(“Appvion”), 1 	oppose 	Koehler’s 	motion.
For the reasons stated below, the Mot. to Expedite is denied.
Koehler’s Mot. to Compel concerns certain bracketed and
double-bracketed proprietary information contained in allegations
Appvion made to Commerce during the administrative proceeding under
review 	in 	the 	instant 	case. 	See 	Mot. 	to 	Compel 	at 	1. 	Appvion
alleged 	that 	Koehler 	undertook 	a 	transshipment 	scheme 	to 	conceal
home market sales, id. at 1–2, which Koehler admitted to during the
review. 	See Issues and Decision Memorandum for the Final Results
of the 2010-2011 Administrative Review on Lightweight Thermal Paper
from Germany at 7–8 (Apr. 10, 2013), A-428-840. 	Koehler contests
the 	bracketing 	of 	certain 	information 	contained 	in 	Appvion’s
allegations 	because 	Commerce 	imposed 	adverse 	facts 	available
(“AFA”) “[b]ased in significant part on those allegations.” 	Mot.
to Compel at 2.
Koehler moves to expedite briefing and consideration of
the 	Mot. 	to 	Compel 	so 	that 	it 	will 	be 	able 	to 	account 	for 	the
1 	On 	May 	13, 	2013, 	Appleton 	Papers 	Inc. 	changed 	its 	name 	to
Appvion, 	Inc. 	See 	Letter 	to 	the 	Clerk 	of 	the 	Court, 	re:
Papierfabrik August Koehler SE v. United States, Ct. No. 13-00163,
ECF No. 25 (June 21, 2013).
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outcome 	of 	that 	motion 	in 	its 	motion 	for 	judgment 	on 	the 	agency
record. 	Mot. 	to 	Expedite 	at 	1–2. 	According 	to 	Koehler, 	it 	does
not 	have 	sufficient 	time 	under 	the 	current 	briefing 	schedule
because 	its 	motion 	for 	judgment 	on 	the 	agency 	record 	is 	due
December 	6, 	2013. 	Id. 	Koehler 	insists 	that 	expedition 	will 	not
prejudice 	the 	opposing 	parties 	because 	the 	Mot. 	to 	Compel
“addresses a very narrow and discrete question.” 	Id. at 2.
This Court may expedite any “action that [it] determines,
based 	on 	motion 	and 	for 	good 	cause 	shown, 	warrants 	expedited
treatment.” 	USCIT R. 3(g)(5). 	Here, Koehler fails to demonstrate
that 	good 	cause 	“warrants 	expedited 	treatment” 	of 	the 	Mot. 	to
Compel. 	In 	its 	Mot. 	to 	Compel, 	Koehler 	argues 	that 	Commerce
violated 	its 	statutory 	and 	constitutional 	due 	process 	rights, 	as
well as Commerce’s own regulations, by allowing Appvion to bracket
and 	double-bracket 	certain 	information 	pertaining 	to 	the
transshipment 	scheme. 	See 	Mot. 	to 	Compel 	at 	3. 	Koehler 	insists
that 	these 	issues 	are 	narrow, 	but 	they 	are 	new 	substantive
allegations 	that 	Koehler 	did 	not 	raise 	in 	its 	complaint, 2 	see
Compl. at 6–7, and opposing parties must have a full opportunity to
address them. 	Moreover, the contents of the bracketed information
2 	In 	the 	“Procedural 	Background” 	of 	its 	complaint, 	Koehler
mentions 	that 	Appvion’s 	allegations 	were 	“liberally 	‘double
bracketed,’” but it does not allege any constitutional, statutory,
or 	regulatory 	violations. 	See 	Compl. 	at 	3, 	6–7, 	ECF 	No. 	6 	(Apr.
24, 2013).
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are 	tangential 	to 	the 	claims 	Koehler 	raises 	in 	its 	complaint, 	as
Koehler admitted that it conducted the transshipment scheme Appvion
alleged. 	See 	I&D 	Memo 	at 	7–14. 	Because 	it 	fails 	to 	demonstrate
that good cause warrants expedition, Koehler’s motion is denied.
See USCIT R. 3(g)(5).
ORDER
Upon 	consideration 	of 	plaintiff’s 	Motion 	for 	Expedited
Briefing and Consideration, the responses thereto, and all papers
and 	proceedings 	herein, 	and 	in 	accordance 	with 	the 	above, 	it 	is
hereby
ORDERED that plaintiff’s motion (ECF No. 59) is DENIED.
Responses 	to 	plaintiff’s 	Motion 	to 	Compel 	Commerce 	to 	Strike
Information Or, In the Alterative, Compel Commerce to Disclose the
Information (ECF No. 57) are to be filed on or before November 25,
2013.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Date: November 14, 2013
New York, New York
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