Brother Industries (USA), Inc. v. U.S., Nos. 93-1010
| Decision Date | 15 June 1993 |
| Docket Number | Nos. 93-1010,93-1085 |
| Citation | 1 F.3d 1252 |
| Parties | NOTICE: Federal Circuit Local Rule 47.6(b) states that opinions and orders which are designated as not citable as precedent shall not be employed or cited as precedent. This does not preclude assertion of issues of claim preclusion, issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. BROTHER INDUSTRIES (USA), INC., Plaintiff-Appellee, v. The UNITED STATES, Defendant-Appellant, and Smith Corona Corporation, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Federal Circuit |
Before LOURIE, Circuit Judge, FRIEDMAN, Senior Circuit Judge, and CLEVENGER, Circuit Judge.
ON MOTION
The court directed the parties to address the issue of whether the United States Court of International Trade's September 3, 1992 order is an appealable order. Brother Industries (USA), Inc. argues that the order is not appealable. Smith Corona Corporation and the United States argue that the order is appealable.
The Court of International Trade's September 3, 1992 order reversed the International Trade Administration's (ITA) determination that Brother was not an "interested party" that could petition the ITA for relief. The Court of International Trade remanded the case to the ITA "to consider whether [Brother] has filed the petition 'on behalf of' the domestic industry, and if so, to proceed with an investigation under the antidumping laws." Smith Corona and the United States appealed.
Brother argues that the order is not appealable, relying primarily on Cabot Corp. v. United States, 788 F.2d 1539 (Fed.Cir.1986), Badger-Powhatan v. United States, 808 F.2d 823 (Fed.Cir.1986) and Jeannette Sheet Glass Corp. v. United States, 803 F.2d 1576 (Fed.Cir.1986). Smith Corona and the United States argue that the order is appealable, relying primarily on Sullivan v. Finkelstein, 496 U.S. 617 (1990) and Travelstead v. Derwinski, 978 F.2d 1244 (Fed.Cir.1992). We discuss the cases seriatim.
In Cabot, we dismissed an appeal of a Court of International Trade order that reversed and remanded to Commerce for further findings, investigation, and a redetermination concerning a countervailable duty determination with instructions to use a different standard than that used by Commerce initially. We concluded that such an order was not appealable either as a final order or under the collateral order doctrine:
Where, as here, the trial court remands to the administrative agency for additional findings, determination, and redetermination, the remand order is not appealable even though the order resolves an important legal issue such as the applicable standard for countervailability. This result comports with the policies underlying the finality rule and in particular avoids unnecessary piecemeal appellate review without precluding later appellate review of the legal issue or any other determination made on a complete administrative record.
Cabot, 788 F.2d at 1543. The analysis concerning appeals of remand orders in Cabot was "general and uncategorical." Travelstead, 978 F.2d at 1247. We also concluded that the order was not appealable as a collateral order under the doctrine set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Cabot, 788 F.2d at 1543.
In Badger-Powhatan, we applied the Cabot analysis to an appeal of a remand order that instructed Commerce to issue an amended final determination. Badger-Powhatan, 808 F.2d at 825. We pointed out in Badger-Powhatan that "[t]he case lacks trial court 'finality,' because the parties will still need to appear before the Court of International Trade if any of them challenges the amended determination of [Commerce]." Id.
In Jeannette Sheet Glass, this court dismissed an appeal of a remand order that affirmed a determination of no material retardation but remanded to the International Trade Commission for redetermination of "material injury" in light of a different standard. We concluded that Jeannette Sheet Glass Corporation could not appeal either the affirmance of the material retardation determination or the remand order concerning the material injury determination. Jeannette Sheet Glass, 803 F.2d at 1580. We also concluded that the order was not appealable as a collateral order under Cohen. Jeannette Sheet Glass, 803 F.2d at 1581.
In 1990, in Finkelstein, the Supreme Court decided the issue of whether the Secretary of Health and Human Services could immediately appeal a district court remand order effectively declaring invalid certain regulations and remanding for consideration in light thereof. The Supreme Court decided that the order was a "final decision" for purposes of appeal under 28 U.S.C. Sec. 1291. The Supreme Court stated that the district court's remand order in that case was "unquestionably a 'judgment' " that "terminated" the case. Finkelstein, 496 U.S. at 625.
The statutory provision at issue in Finkelstein, 42 U.S.C. Sec. 405(g) (1988), permits judicial review in district courts of decisions of the Secretary. That provision provides:
Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain review of such decision.... The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing [fourth sentence remand].... The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of The district court was permitted to enter two types of remands under the statute. Finkelstein, 496 U.S. at 625-26. The first type of remand, mentioned in the fourth sentence of 42 U.S.C. Sec. 405(g), returns the case back to the agency for further consideration but does not indicate that there will be further proceedings at the district court. The Supreme Court concluded that the "fourth sentence" type of action was a "judgment", within the meaning of the statutory provision at issue, 42 U.S.C. Sec. 405(g), even though the "judgment" remanded the case to the Secretary for further consideration. Finkelstein, 496 U.S. at 628. As a "judgment," the remand was appealable.
the additional record and testimony upon which his action in modifying or affirming was based [sixth sentence remand].
The other type of remand, referred to as a "sixth sentence" remand, may issue on the Secretary's motion or when the district court learns of new or previously unavailable evidence that might change the proceedings. Finkelstein, 496 U.S. at 626. After the proceedings on remand in a "sixth sentence" type of action, the Secretary reports back to the district court concerning the findings (whether modified or not) and the district court thereafter reviews all of the findings and enters a judgment. Finkelstein, 496 U.S. at 627. In a "sixth sentence" remand, the district court does not set aside the agency's original determination pending the consideration of the additional evidence by the agency, although the district court may have at least considered that the additional evidence could change the agency's determination. See Monongahela Valley Hosp., Inc. v. Sullivan, 945 F.2d 576, 588 n. 16 (3d Cir.1991). The Supreme Court, in distinguishing the two types of remand under that statute, clearly did not hold that the "sixth sentence" type of remand, one that contemplates future proceedings at the trial court and a future entry of final judgment, was an appealable remand order.
In Travelstead, we held that a Court of Veterans Appeals' remand order was issued under circumstances similar to those in Finkelstein. In that case, the Court of Veterans Appeals reversed the Board of Veterans Appeals, holding that the procedures applied by the Department of Veterans Affairs in evaluating eligibility for retroactive release from liability for certain loans were contrary to the express language of the statute. Travelstead, 978 F.2d at 1246. We stated that, as in Finkelstein, the remand order in Travelstead "unquestionably terminated the action before the court." Travelstead, 978 F.2d at 1248. In determining that the remand order was appealable, we stated:
The principal directive of Finkelstein is that remands are not all of the same nature. Some are final; some are not. A remand was recognized there to be final under the statute involved and in order to ensure that the court of appeals was able to review an important legal question which the remand made effectively unreviewable.
Travelstead, 978 F.2d at 1249. See also Finkelstein, 496 U.S. at 623 (). Neither Travelstead nor Finkelstein held that the general rule prohibiting interlocutory appeals from remand orders to administrative agencies, as set forth in Cabot and Badger-Powhatan, was overruled or not applicable to proceedings like those in the Court of International Trade. See Finkelstein, 496 U.S. at 623 (...
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