U.S. Intern. Trade Com'n v. Asat, Inc., 05-5009.

Citation411 F.3d 245
Decision Date10 June 2005
Docket NumberNo. 05-5009.,05-5009.
PartiesU.S. INTERNATIONAL TRADE COMMISSION, Appellee, v. ASAT, INC., Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (No. 04mc00395).

Matthew J. Brigham argued the cause for appellant. With him on the briefs was Thomas J. Friel, Jr. and Lori R.E. Ploeger.

Wayne W. Herrington, Counsel, U.S. International Trade Commission, argued the cause for appellee. On the brief were Timothy P. Monaghan, Attorney, and Neal J. Reynolds, Acting Assistant General Counsel.

Louis S. Mastriani and Scott A. Lasher were on the brief for amici curiae Carsem (M) SDN BHD, et al. in support of appellee.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge.

This is an appeal from an order granting a petition of the United States International Trade Commission for enforcement of its subpoena for the production of documents under section 333(b) of the Tariff Act of 1930, 19 U.S.C. § 1333(b) (2000). ASAT, Inc. challenges enforcement on the grounds that the district court lacked subject matter and personal jurisdiction, was not the proper venue, and, alternatively, erred by refusing to review whether ASAT, Inc. controlled the subpoenaed documents that are in its parent companies' possession. Although we hold that the district court had subject matter jurisdiction and was a proper venue, and that because section 333(b) of the Tariff Act of 1930 authorizes nationwide service of process, it also had personal jurisdiction over ASAT, Inc., we nonetheless reverse the order enforcing the administrative subpoena because the record lacks sufficient evidence to determine, as a matter of law, that ASAT, Inc. controls, and therefore is able to produce, the subpoenaed documents.

I.

The subpoena underlying this appeal was issued during an investigation by the United States International Trade Commission under section 337 of the Tariff Act of 1930, 19 U.S.C. § 1337, of whether the importation of certain encapsulated integrated circuits by Carsem, Inc., Carsem (M) Sdn Bhd, and Carsem Semiconductor Sdn Bhd (collectively "Carsem") infringes three United States patents owned by Amkor Technology, Inc. ("Amkor"). See In Matter of Certain Encapsulated Integrated Circuit Devices & Products Containing Same, Inv. No. 337-TA-501 (U.S.I.T.C.). At the request of Carsem, an Administrative Law Judge ("ALJ") issued three identical subpoenas seeking documents and depositions from ASAT, Inc., ASAT Limited, and ASAT Holdings Ltd., non-parties to the investigation that allegedly have documents relative to Carsem's likely affirmative defenses. ASAT, Inc. is a California corporation with headquarters in Pleasanton, California. It is a wholly-owned subsidiary of both ASAT Limited, which is a Hong Kong corporation with a principal office in Hong Kong, and ASAT Holdings Ltd., which is a Cayman Islands holding corporation with a principal office in Hong Kong. ASAT Limited is itself also a wholly-owned subsidiary of ASAT Holdings Ltd. ASAT, Inc.'s principal activities are the selling, marketing, and provision of customer services for its parent companies' integrated circuits in the United States. Carsem served each subpoena on ASAT, Inc. in California. The subpoena duces tecum requested a range of technical and legal documents relating to, among other things, the prosecution and licensing of two patents — one that is assigned to ASAT Limited and one that is assigned to Amkor.

ASAT Limited and ASAT Holdings moved to quash the subpoenas for improper service, and the ALJ granted the motion because Carsem "ha[d] not shown a lack of corporate separateness among the three ASAT entities" and ASAT, Inc. was not a registered agent to accept service on their behalf. ASAT, Inc. also objected to its subpoena on various grounds, including that it did not have possession, custody or control of, or the legal right to obtain, certain documents because they were in the possession of ASAT Limited or ASAT Holdings Ltd. The ALJ, noting that ASAT, Inc. is "the exclusive distributor of ASAT Holdings services in the United States," found that there was a "close business relationship between the three ASATs" and ruled that "ASAT Inc. is deemed to be in control of documents held by ASAT Limited and ASAT Holdings."

After ASAT, Inc. partially complied with the subpoena but advised Carsem that it was unable to obtain the relevant documents from ASAT Limited and ASAT Holdings Ltd. relating to the cross-licensing arrangement between ASAT Holdings Ltd. and Amkor on the patents in question, Carsem moved to certify to the Commission a request for judicial enforcement of the subpoena. The ALJ agreed, stating that "the information sought in the subpoena relates to communications between ASAT and Amkor and the prosecution of the ASAT and Amkor patents that is relevant to Carsem's affirmative defense" and "for which there is no other source." The ALJ understood ASAT Inc.'s "flat refusal to comply with the subpoena ... [as] a showing of contempt for the Commission's discovery processes." The Commission granted the ALJ's request, and, on August 11, 2004, it filed a petition in the district court for the District of Columbia to enforce the subpoena. The district court granted the petition, ruling that it had jurisdiction and that none of ASAT, Inc.'s substantive challenges to the administrative subpoena fell within the court's limited scope of review. U.S. Int'l Trade Comm'n v. ASAT, Inc., 355 F.Supp.2d 67 (D.D.C.2004). The district court stayed its enforcement order, which is a final appealable order, see FTC v. Texaco, Inc., 555 F.2d 862, 873 n. 21 (D.C.Cir.1977) (en banc), and ASAT, Inc. now appeals.

II.

Section 333(b) of the Tariff Act provides that the Commission may require the "attendance of witnesses and the production of such documentary evidence ... from any place in the United States at any designated place of hearing." 19 U.S.C. § 1333(b). Significantly, the subsection further provides:

[I]n case of disobedience to a subpoena the commission may invoke the aid of any district or territorial court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence and such court within the jurisdiction of which such inquiry is carried on may, in case of contumacy or refusal to obey a subpoena issued to any corporation or other person, issue an order requiring such corporation or other person to appear before the commission, or to produce documentary evidence if so ordered or to give evidence touching the matter in question.

Id. (emphasis added). The question whether the district court has subject matter jurisdiction over an action is generally distinct from the question whether it was a proper venue in which the action could be filed. See Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 167-68, 60 S.Ct. 153, 84 L.Ed. 167 (1939); 15 WRIGHT, MILLER, & COOPER, FEDERAL PRACTICE AND PROCEDURE § 3801 (2d ed. & Supp.2005); cf. Tex. Mun. Power Agency v. EPA, 89 F.3d 858, 867 (D.C.Cir.1996); New Mexico ex rel. Energy & Minerals Dep't v. U.S. Dep't of Interior, 820 F.2d 441, 446 (D.C.Cir.1987). The former addresses the power of the court to adjudicate, while the latter addresses the place where that judicial authority may be exercised and focuses on the convenience to the parties of the location of the lawsuit. Neirbo, 308 U.S. at 167-68, 60 S.Ct. 153. However, in the context of section 333(b) of the Tariff Act, the two inquiries merge. Under the analysis adopted in FEC v. Committee to Elect Lyndon LaRouche, 613 F.2d 849, 856-57 (D.C.Cir.1979), the district court's subject matter jurisdiction under section 333(b) turns on whether the Commission's inquiry was "carried on" in the judicial district in which the Commission filed its enforcement action, 19 U.S.C. § 1333(b). In this instance, the court is required to determine "(1) whether the District of Columbia bore a sufficiently `reasonable relation to the subject matter of the investigation' to qualify as a place where the inquiry was carried on, and (2) whether the [Commission's] choice of this jurisdiction as its place of inquiry exceeded `the bound of reasonableness.'" LaRouche, 613 F.2d at 856-57 (quoting FTC v. MacArthur, 532 F.2d 1135, 1140 (7th Cir.1976)) (internal citation omitted). Because the second criterion resembles a traditional venue analysis that focuses on the convenience of the forum to the parties, see Neirbo, 308 U.S. at 168, 60 S.Ct. 153, it may more properly be said that the first LaRouche criterion implicates the district court's subject matter jurisdiction, while the second criterion implicates whether that court is a proper venue. Indeed, in light of Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), it may be that section 333(b) is properly viewed not as jurisdictional but as only implicating the district court's remedial power. The court suggested, in dictum, in United States v. Hill, 694 F.2d 258, 267 (D.C.Cir.1982), where there was no enforcement provision in the agency statute at issue, that the general jurisdictional grants in 28 U.S.C. §§ 1331, 1337, 1345 provide the district court with subject matter jurisdiction over actions to enforce administrative subpoenas. However, because it is not so clear that Steel Co. is inconsistent with the characterization of similar statutory language in LaRouche and FTC v. Browning, 435 F.2d 96 (D.C.Cir.1970), this court has no occasion to adopt a different analysis. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc).

ASAT, Inc. contends that the phrase "such court within the jurisdiction of which such inquiry" should be interpreted to include only the location of the "attendance of witnesses...

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