Case Information
*2 Before L OURIE and S TOLL Circuit Judges , and C HUN ,
District Judge . [1]
S TOLL , Circuit Judge .
Crocs, Inc. appeals the United States International Trade Commission’s finding of no violation of Section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1337, by the respondents who participated in an evidentiary hear- ing: Orly Shoe Corp.; Hobby Lobby Stores, Inc.; and Quan- zhou ZhengDe Network Corp., d/b/a Amoji (collectively, the “Active Respondents”). Because Crocs’s appeal of the Com- mission’s no violation finding as to the Active Respondents is untimely, we dismiss in part.
Crocs also appeals the Commission’s entry of a limited exclusion order against the respondents the Commission found to be in default: Jinjiang Anao Footwear Co., Ltd.; Huizhou Xinshunzu Shoes Co., Ltd.; Star Bay Group, Inc.; and La Modish Boutique (collectively, the “Defaulting Re- spondents”). Because the Commission did not abuse its discretion in entering a limited exclusion order under 19 U.S.C. § 1337(g)(1) against the Defaulting Respondents, we affirm in part.
B ACKGROUND
Crocs owns U.S. Trademark Nos. 5,149,328 and 5,273,875 (collectively, the “3D Marks”), which cover certain features of Crocs’s Classic Clog shoes. In June 2021, Crocs filed a complaint with the Commission, which it later amended, accusing multiple respondents of violat- ing Section 337 by importing, selling for importation, or selling in the United States after importation certain cas- ual footwear that infringed or diluted Crocs’s 3D Marks. Crocs’s complaint requested relief in the form of a general exclusion order (GEO), or in the alterative, a limited exclu- sion order (LEO). In July 2021, the Commission instituted an Investigation based on Crocs’s complaint. Prior to the evidentiary hearing in the Investigation, the Commission found the four Defaulting Respondents “were in default and waived their rights to appear, to be served with docu- ments, and to contest the allegations in this investigation.” J.A. 14. The three Active Respondents participated in an evidentiary hearing before an Administrative Law Judge in September 2022. [2]
In January 2023, the Administrative Law Judge issued an Initial Determination finding no violation of Section 337 because, among other reasons, (1) Crocs failed to prove that any of the respondents infringed the 3D Marks; (2) Crocs failed to prove that any of the respondents diluted the 3D Marks by blurring or tarnishment; and (3) Crocs waived its infringement contentions against the Defaulting Respondents. In April 2023, the Commission determined to review in part the Initial Determination, including the Administrative Law Judge’s findings on likelihood of con- fusion and dilution of the 3D Marks and whether Crocs waived its infringement contentions against the Defaulting Respondents.
On September 14, 2023, the Commission issued its No- tice of Final Determination and corresponding Commission Opinion finding no violation of Section 337 by the Active Respondents because Crocs failed to prove likelihood of confusion, infringement, or dilution of the 3D Marks as to those respondents. For the Defaulting Respondents, the Commission “determined to set aside the [Initial Determi- nation]’s findings with respect to waiver as they do not apply to issuance of an LEO or [cease and desist order (CDO)] against a party found in default, pursuant to 19 U.S.C. § 1337(g)(1).” J.A. 44. The Commission noted that “Section 337(g)(1) states that, once a party is found in default, ‘the Commission shall presume the facts alleged in the complaint to be true and shall, upon request, issue an exclusion from entry [ i.e. , LEO] or a cease and desist order, or both, limited to that person,’ unless the Commission finds the public interest factors weigh against exclusion.” J.A. 45 (alteration in original) (quoting 19 U.S.C. § 1337(g)(1)). The Commission reasoned that there was “thus no need [for Crocs] to present infringement conten- tions with respect to [the Defaulting R]espondents in Crocs’s prehearing brief to obtain relief limited to them un- der [S]ection 337(g)(1).” Id. As the Commission found the public interest factors did not preclude relief in this case, it issued an LEO against the Defaulting Respondents.
On December 22, 2023, Crocs filed a notice of appeal.
See ECF No. 1.
D ISCUSSION
On appeal, Crocs challenges (1) the Commission’s no violation finding as to the Active Respondents, and (2) the Commission’s decision to only enter an LEO against the Defaulting Respondents instead of entering a GEO, as Crocs requested. The Commission responds that (1) Crocs’s appeal against the Active Respondents is time- barred by Section 337(c), and (2) the Commission did not abuse its discretion in issuing only an LEO against the De- faulting Respondents. We take each issue in turn.
I
According to Crocs, its appeal is timely because the “Commission issued its one and only final determination in the Investigation below on September 14, 2023,” which “triggered a 60-day Presidential review period, rendering the determination non-final . . . until November 14, 2023.” Appellant’s Br. 83. Thus, Crocs argues, the 60-day appeal window set in Section 337(c) did not start to run until No- vember 14, 2023, rendering its December 22, 2023 notice of appeal timely as to the Active Respondents. We disagree.
The language of Section 337 and our case law support dismissing Crocs’s appeal as to the Active Respondents. Our jurisdiction to hear appeals from the Commission is governed by 28 U.S.C. § 1295(a)(6): “The United States Court of Appeals for the Federal Circuit shall have exclu- sive jurisdiction . . . to review the final determinations of the United States International Trade Commission relat- ing to unfair practices in import trade[] made under [S]ec- tion 337.” Section 337(c) states in part that:
Any person adversely affected by a final determina- tion of the Commission under subsection (d), (e), (f), or (g) may appeal such determination, within 60 days after the determination becomes final, to the United States Court of Appeals for the Federal Circuit for review in accordance with chapter 7 of title 5 . Notwithstanding the foregoing provisions of this subsection, Commission determinations under subsections (d), (e), (f), and (g) with respect to its findings on the public health and welfare, competi- tive conditions in the United States economy, the production of like or directly competitive articles in the United States, and United States consumers, the amount and nature of bond, or the appropriate remedy shall be reviewable in accordance with sec- tion 706 of title 5. Determinations by the Commis- sion under subsections (e), (f), and (j) with respect to forfeiture of bonds and under subsection (h) with respect to the imposition of sanctions for abuse of discovery or abuse of process shall also be reviewa- ble in accordance with section 706 of title 5.
19 U.S.C. § 1337(c) (emphasis added). Prior to a Commis- sion finding of a violation becoming final, however, there is a 60-day presidential review period:
(1) If the Commission determines that there is a vi- olation of this section, . . . it shall— . . .
(B) transmit to the President a copy of such determination and the action taken under subsection (d), (e), (f), (g), or (i), with respect thereto, together with the record upon which such determination is based.
. . .
(4) If the President does not disapprove such deter- mination within such 60-day period, or if he noti- fies the Commission before the close of such period that he approves such determination, then, for pur- poses of paragraph (3) and subsection (c) such de- termination shall become final on the day after the close of such period or the day on which the Presi- dent notifies the Commission of his approval, as the case may be.
19 U.S.C. § 1337(j) (emphasis added).
In Allied Corp. v. United States International Trade Commission , 782 F.2d 982 (Fed. Cir. 1986), two orders is- sued from the Commission: (1) a July 6, 1984 order adopt- ing an Administrative Law Judge’s determination that two of Allied’s patents were invalid, which was not subject to a presidential review period, and (2) an October 15, 1984 or- der excluding articles that infringed Allied’s valid patent, which was subject to a 60-day presidential review period. See 782 F.2d at 983. Allied filed its notice of appeal on Feb- ruary 13, 1985, which was within the 60-day appeal win- dow that started after the presidential review period for the second order was complete. However, our court dismissed Allied’s appeal as untimely. Because “Allied pre- vailed in respect [to the valid] patent and the exclusion or- der, it could not appeal from that order.” Id. This left only the July 6, 1984 order invalidating two of Allied’s patents, which “was final as of July 6, 1984, there being no provision for Presidential review, or for other administrative pro- ceedings” relevant to that order. Id. at 984. But Allied’s notice of appeal was filed more than 60 days after July 6, 1984. Allied tried to argue “that a § 337(c) proceeding is a single entity and [thus] it was waiting for expiration of the Presidential review period” on the entire investigation to end before it appealed. Id. We held that this argument was “without merit.” Id.
In Broadcom Corp. v. International Trade Commission , 542 F.3d 894 (Fed. Cir. 2008), the Commission found no vi- olation on two patents, after which Broadcom filed the named appeal; however, the Commission had also issued an exclusion order barring the importation of Qualcomm’s accused products based on infringement of a different pa- tent, which Qualcomm appealed as part of a different case before our court after the presidential review period for the exclusion order was complete. See 542 F.3d at 896. Qual- comm then tried to have Broadcom’s appeal dismissed as premature because, “[i]n Qualcomm’s view, the Commis- sion’s order did not become final and appealable until after the President declined review of the Commission’s exclu- sion order based on the [infringed] patent.” Id. We relied on Allied to hold that “once the Commission adopted the administrative law judge’s noninfringement determina- tion, there was no further opportunity for review of that decision other than by way of review in this court. Broad- com therefore did not prematurely file its petition for re- view once the Commission issued its order.” Id. at 896–97.
Thus, our case law instructs that in investigations that have a mixed result of a violation finding (subject to a pres- idential review period prior to the 60-day appeal window starting) and a no-violation finding (not subject to a presidential review period and so final for the purposes of starting the 60-day appeal window at the time it issues), the notices of appeal for the different findings have distinct appeal windows. Here, as to the Active Respondents, when the Commission’s determination of no violation was en- tered there was no presidential review period and no other administrative proceedings for that finding (unlike for the entry of an exclusion order against the Defaulting Re- spondents). Thus, the no violation finding was a final de- cision of the Commission on the day it issued and the 60- day period in Section 337(c) to file a notice of appeal began to run. That 60-day period ended on November 13, 2023, but Crocs did not file its notice of appeal until December 22, 2023.
Crocs argues that, because the Commission chose to is- sue both its decision of no violation against the Active Re- spondents and its decision to issue an exclusion order against the Defaulting Respondents in the same writing— i.e., the Commission issued only one Notice of Final Deter- mination and Commission Opinion—then we must treat it as a single final determination that cannot be parsed for the purposes of presidential review, and thus also cannot be parsed for the appeal window. But Crocs does not point to any case law from this court that supports this argu- ment. While Crocs seeks to analogize this case to Young Engineers, Inc. v. United States International Trade Com- mission , 721 F.2d 1305 (Fed. Cir. 1983), Young Engineers does not stand for a different proposition from what we de- scribe above for investigations with mixed violation re- sults. Indeed, Young Engineers has no bearing on these types of investigations, as it did not include a no violation finding. Instead, Young Engineers dealt with finality is- sues arising from when the President, during the presiden- tial review period, disapproved in part of the relief the Commission granted and remanded the entire remedy back to the Commission to modify the exclusion orders entered , against respondents. See Young Engineers 721 F.2d at 1308–09.
Moreover, even Crocs seems to concede that if the Com- mission had issued two different writings—even if those or- ders came out on the same day—then under our court’s precedent the time period to file a notice of appeal would be different for the two sets of respondents. See Appellant’s Reply Br. 36 (“In future investigations, the Commission can ensure that affected parties are able to appeal adverse decisions quickly by issuing two final determinations, one containing the adverse findings and conclusions and the other containing the favorable findings and conclusions as well as the remedies.”). But this merely elevates form over substance.
Crocs also summarily argues without explication that Harrow v. Department of Defense , 601 U.S. 480 (2024), ap- plies to Section 337(c) and, thus, the deadlines in 19 U.S.C. § 1337(c) are not jurisdictional. See Appellant’s Br. 82. We need not decide this issue or whether equitable tolling could apply to this case because, even assuming that the 60-day period in Section 337(c) is not jurisdictional and one could equitably toll this statute, Crocs forfeited its right to argue it was entitled to such equitable tolling here. Despite citing Harrow to argue that the statute was not jurisdic- tional, Crocs failed to include any argument or evidence on tolling in its opening brief. See Appellant’s Br. 82–83; see also SmithKline Beecham Corp. v. Apotex Corp. , 439 F.3d 1312, 1319 (Fed. Cir. 2006) (“Our law is well established that arguments not raised in the opening brief are waived.”).
* * *
We thus hold that Allied and Broadcom are controlling where the Commission issues one writing that contains both a no violation finding against one set of respondents and enters an exclusion order against another set of re- spondents. Accordingly, there will be different deadlines to file an appeal for such decisions. Here, the no violation finding against the Active Respondents was final as of the day it issued because it was not subject to presidential re- view or any other administrative proceedings, and so the 60-day period to file a notice of appeal began to run on Sep- tember 14, 2023. Thus, the notice of appeal for the Com- mission’s final decision of no violation by the Active Respondents was due by November 13, 2023, but Crocs did not file its notice of appeal until December 22, 2023. Crocs’s appeal of the no violation finding is thus dismissed as untimely.
II
Turning to Crocs’s request for a GEO instead of an LEO based on the Commission’s entry of a violation against the Defaulting Respondents, [3] Crocs argues that the Commis- sion offered “no explanation for its finding and provided no reasoning to justify its conclusion” that Crocs was not enti- tled to a GEO. Appellant’s Br. 23. We disagree.
“[T]he Commission has broad discretion in selecting the form, scope and extent of the remedy, and judicial re- view of its choice of remedy necessarily is limited.” Visco- fan, S.A. v. U.S. Int’l Trade Comm’n , 787 F.2d 544, 548 (Fed. Cir. 1986). “Stated another way, because the Com- mission is ‘the expert body to determine what remedy is necessary,’ it has ‘wide latitude for judgment and the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist.’” Philip Morris Prods. S.A. v. Int’l Trade Comm’n , 63 F.4th 1328, 1339–40 (Fed. Cir. 2023) (quoting Viscofan , 787 F.2d at 548). “This court therefore must affirm the Commission’s choice of remedy unless the action is ‘arbi- trary, capricious, an abuse of discretion, or otherwise not in accordance with law.’” Id. at 1340 (quoting Spansion, Inc. v. Int’l Trade Comm’n , 629 F.3d 1331, 1358 (Fed. Cir. 2010)).
In setting aside the Administrative Law Judge’s no vi- olation finding for the Defaulting Respondents based on waiver, the Commission explained that such waiver would “not apply to issuance of an LEO or CDO against a party found in default, pursuant to 19 U.S.C. § 1337(g)(1).” J.A. 44. Instead, under Section 337(g)(1), the Commission clarified that it was to assume the facts alleged in Crocs’s complaint against the Defaulting Respondents were true and it “ shall . . . issue an exclusion from entry.” J.A. 45. Thus, the Commission described that it was only issuing an exclusion order against the Defaulting Respondents based on Section 337(g)(1). Section 337(g)(1) states:
(1) If—
(A) a complaint is filed against a person under this section;
(B) the complaint and a notice of investigation are served on the person;
(C) the person fails to respond to the complaint and notice or otherwise fails to appear to answer the complaint and notice;
(D) the person fails to show good cause why the per- son should not be found in default; and (E) the complainant seeks relief limited solely to that person;
the Commission shall presume the facts alleged in the complaint to be true and shall, upon request, issue an exclusion from entry or a cease and desist order, or both, limited to that person unless, after considering the effect of such exclusion or order upon the public health and welfare, competitive conditions in the United States economy, the pro- duction of like or directly competitive articles in the United States, and United States consumers, the Commission finds that such exclusion or order should not be issued.
19 U.S.C. § 1337(g)(1) (emphases added). Accordingly, pursuant to the language of the statute, after finding that any waiver by Crocs of its infringement contentions against the Defaulting Respondents was irrelevant because the Commission had to accept the complaint allegations as true and enter an exclusion order under Section 337(g)(1), the Commission could only issue an exclusion order “limited” to those respondents it had found in default—i.e., an LEO. [4] Thus, we hold that the Commission provided a sufficient basis for its issuance of an LEO, and its actions were not arbitrary, capricious, an abuse of its discretion, or other- wise not in accordance with law.
C ONCLUSION
We have considered Crocs’s remaining arguments and find them unpersuasive. For the foregoing reasons, we dis- miss Crocs’s appeal as to the Commission’s finding of no violation by the Active Respondents and affirm the Com- mission’s decision entering an LEO against the Defaulting Respondents.
DISMISSED-IN-PART AND AFFIRMED-IN-PART
C OSTS
Costs to Appellee.
[1] Honorable John H. Chun, District Judge, United States District Court for the Western District of Washing- ton, sitting by designation.
[2] Throughout the Investigation, more than twenty other respondents were also terminated based on settle- ment agreements or consent orders.
[3] “A limited exclusion order is ‘limited’ in that it only applies to the specific parties before the Commission in the investigation. In contrast, a general exclusion order bars the importation of infringing products by everyone, regard- less of whether they were respondents in the Commission’s investigation.” Yingbin-Nature (Guangdong) Wood Indus. Co. v. Int’l Trade Comm’n , 535 F.3d 1322, 1330 (Fed. Cir. 2008) (citation omitted).
[4] Crocs does not argue it could avail itself of 19 U.S.C. § 1337(g)(2), which allows for the entry of a GEO in an investigation involving default only if all respondents to the investigation do not appear. 19 U.S.C. § 1337(g)(2) (explaining that a GEO “may be issued if—(A) no person appears to contest an investigation concerning a violation of the provisions of this section, (B) such a violation is es- tablished by substantial, reliable, and probative evidence, and (C) the requirements of subsection (d)(2) are met.”).