Hosiden Corp. v. Advanced Display Mfrs. of America, s. 93-1224
| Citation | 9 F.3d 977 |
| Decision Date | 13 July 1993 |
| Docket Number | Nos. 93-1224,93-1269,s. 93-1224 |
| 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issue preclusion, judicial estoppel, law of the case or the like based on a decision of the Court rendered in a nonprecedential opinion or order. HOSIDEN CORPORATION, Matsushita Electrical Industrial Co., Ltd., Sharp Corporation, Toshiba Corporation, Hitachi, Ltd., NEC Corporation, and Seiko Epson Corporation, and Apple Computer, Inc., and International Business Machines Corporation, and Compaq Computer Corporation, and Tandy Corporation, Plaintiffs-Appellees, v. ADVANCED DISPLAY MANUFACTURERS OF AMERICA, Planar Systems, Inc., Plasmaco, Inc., Electro-Plasma, Inc., Photonics Technology, Inc. and Magnascreen Corporation, and United States International Trade Commission, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals for the Federal Circuit |
Before RICH, Circuit Judge, BENNETT, Senior Circuit Judge, and LOURIE, Circuit Judge.
ON MOTION
ORDER
Hosiden Corporation et al. (Hosiden) move to dismiss the appeal of Advanced Display Manufacturers of America, et al. (Advanced Display), 93-1224, and the appeal of the International Trade Commission, 93-1269. Advanced Display and the Commission oppose. The Commission moves to consolidate Advanced Display's appeal with its appeal of the same order. Hosiden opposes. Hosiden moves to supplement its motion with documents filed in the Court of International Trade after the appeals.
This matter stems from Advanced Display's petition filed with the Department of Commerce in 1990 urging antidumping duty investigation of certain imports of high-information content flat panel displays and subassemblies thereof from Japan. At issue in this appeal is the Commission's final affirmative determination of injury to the domestic industry. In making that determination, the Commission concluded that various types of domestic panel displays and subassemblies constituted one "like" product in comparison to the two classes or kinds of imported panel displays under investigation.
That ruling, among others, was challenged in the Court of International Trade. In its December 29, 1992 order, the Court of International Trade ruled that, on remand, the Commission must perform separate analyses and make separate determinations with regard to each of the two separate classes or kinds of imported panel displays delineated by Commerce. Specifically, the Court of International Trade stated that "the statute limits the Commission to individual determinations of whether a domestic industry producing products like each separate class or kind of imported article is being injured by each separate class or kind of imported merchandise designated by Commerce" and that the Commission's "interpretation of its statutory duties [was] not in accordance with the plain language of the statute, and 'alter[ed] the clearly expressed intent of Congress.' " The Court of International Trade directed the Commission to report its determinations within 60 days, which was later extended by one week. 1 The Court of International Trade reserved issuing a decision on the challenge to Commerce's determinations. Advanced Display and the Commission appealed the remand order. Hosiden moves to dismiss.
Hosiden argues that the remand order is not appealable, relying primarily on Cabot Corp. v. United States, 788 F.2d 1539 (Fed.Cir.1986) and Badger-Powhatan v. United States, 808 F.2d 823 (Fed.Cir.1986). Advanced Display and the Commission 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.
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 1990, in Finkelstein, the Supreme Court decided the issue 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 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.
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 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:
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