Warner Bros., Inc. v. U.S. Intern. Trade Com'n

• Citation: 787 F.2d 562,229 USPQ 126
• Decision Date: 20 March 1986
• Docket Number: No. 85-2107,85-2107
• Parties: , 229 U.S.P.Q. 126, 4 Fed. Cir. (T) 59 WARNER BROTHERS, INC., Appellant, v. U.S. INTERNATIONAL TRADE COMMISSION, Appellee. Appeal
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Page 562

787 F.2d 562

7 ITRD 2189, 229 U.S.P.Q. 126, 4 Fed.

Cir. (T) 59

WARNER BROTHERS, INC., Appellant, v. U.S. INTERNATIONAL TRADE COMMISSION, Appellee.

Appeal No. 85-2107.

United States Court of Appeals Federal Circuit.

March 20, 1986.

J. Joseph Bainton, New York City, argued, for appellant. With him on brief were Steven H. Reisberg and Joseph J. Iarocci, Reboul, MacMurray, Hewitt, Maynard & Kristol, of counsel.

William E. Perry, Office of the Gen. Counsel, Washington, D.C., argued, for appellee. With him on brief were Lyn M. Schlitt, Gen. Counsel and Michael P. Mabile, Asst. Gen. Counsel.

Richard M. Cooper and Mary G. Clark, Williams & Connolly, Washington, D.C., were on brief for amicus curiae, Motion Picture Ass'n of America, Inc.

Before MARKEY, Chief Judge, SMITH and NIES, Circuit Judges.

NIES, Circuit Judge.

Warner Brothers, Inc. appeals from the final decision of the International Trade Commission (ITC) in investigation No. 337-TA-201, which declined to grant Warner's request for a temporary exclusion order (TEO) because Warner failed to prove that the domestic industry would suffer immediate and substantial harm in the absence of such relief. Because the ITC applied the correct legal standard, and its finding of no immediate and substantial harm is supported by substantial evidence, the decision of the ITC is affirmed. ^*

OPINION

As a threshold matter in this appeal, the ITC argues that Warner has waived its right to challenge the immediate and substantial harm standard because it failed to file a petition for review of the ALJ's initial decision by the Commission. We do not agree. The government's argument on waiver hopelessly confuses the precedent dealing with requirements that a private litigant must first exhaust administrative remedies with the Commission's sua sponte right to restrict the disposition of a case to a single dispositive issue.

With respect to the latter, this court held in Beloit Corp. v. Valmet Oy, 742 F.2d 1421, 1423, 223 USPQ 193, 194 (Fed.Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2706, 86 L.Ed.2d 721 (1985):

The Commission, on the other hand, is at perfect liberty to reach a "no violation" determination on a single dispositive issue. That approach may often save the Commission, the parties, and this court substantial unnecessary effort. Like many good things, that approach carries with it a risk--here the risk of a reversal, and a consequent need for the Commission to revisit one or more portions of the initial determination on which it had taken no position.

Whether or not a petition for review is filed, the ITC may limit resolution of a case to a single dispositive issue. It may not, however, parse that issue so finely that meaningful judicial review is precluded. In this case, the ITC in its notice of "nonreview" of the initial decision (ID) specifically adopted "that portion of the administrative law judge's ID finding that there is no immediate and substantial harm to the domestic industry." Although the ITC's statement appears to be directed to the factual finding of no immediate and substantial harm, it would make no sense for the ITC to treat that finding as dispositive were it not in agreement with the legal standard. Thus, a challenge to the legal propriety of the standard as well as to the factual satisfaction of that standard may be raised at this time.

With respect to a party's waiver of an issue, the precedent cited by the government has no applicability here. Tong Seae Industries Co., Ltd. v. USITC, 67 C.C.P.A. 160, 164 (1980) repeated the hornbook rule that a party may not raise issues on appeal "that were never raised below." Astra-Sjuco A.B. v. USITC, 629 F.2d 682, 67 C.C.P.A. 128 (1980) was decided under the prior rules where the ALJ decision did not automatically become the decision of the Commission.

As we read the current regulations, 19 C.F.R. Sec. 210.55(a)(2), if a party does file a petition for review of the ID, any issue not raised therein "will be deemed to have been abandoned." That rule obviously applies where a party files such a petition. However, there is no requirement...