Papierfabrik August Koehler SE v. United States

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.
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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.
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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
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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-
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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
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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
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