414 F. Supp. 713 | D.D.C. | 1976
MEMORANDUM AND ORDER
Certain American distributors of Volkswagen, Audi and Porsche 914 automobiles, invoking the Administrative Procedure Act (APA), 5 U.S.C. §§ 701-06, ask the Court to review an order of the United States International Trade Commission (ITC) discontinuing them as parties in the first phase of ITC Investigation No. 337-TA-18.
The Commission instituted the investigation as a result of a complaint filed by Engelhard Minerals & Chemical Corporation (Engelhard) to determine whether the importation into the United States of Volkswagen, Audi, and Porsche 914 automobiles with monolithic catalytic converters should be prohibited pursuant to 19 U.S.C. § 1337. The inquiry is in two stages. First, it will be determined whether there is a violation. This turns on whether there have occurred any “unfair methods of competition [or] unfair acts in the importation of articles into the United States, or in their sale by the owner, importer, consignee, or agent of either, the effect or tendency of which is to destroy or substantially injure an industry, efficiently and economically operated, in the United States, or to prevent the establishment of such an industry, or to restrain or monopolize trade and commerce in the United States . . 19 U.S.C. § 1337(a). More particularly, the threshold inquiry is whether the monolithic catalytic converters included in the imported cars infringe an American patent held
Plaintiffs, together with the manufacturer and importer of the automobiles, were named in the Engelhard complaint and were initially included in the investigation ordered by the Commission. However, they were subsequently dropped from the first stage
Having lost before the agency, plaintiffs appealed the Commission’s order to the United States Court of Customs and Patent Appeals. That court initially stayed further proceedings by the Commission pending appeal. However, after briefing and argument, the Court of Customs and Patent Appeals dismissed the appeal for want of jurisdiction and dissolved the stay on the ground that there had been neither an expressly final determination of the Commission under 19 U.S.C. § 1337(d, e) nor an action that had an effect upon plaintiffs equivalent to that of a final determination. Rather than seeking review of this decision in the Supreme Court, 28 U.S.C. § 1256, plaintiffs immediately filed the instant suit.
Presently before the Court are plaintiffs’ motion for a preliminary injunction and defendant’s motion to dismiss.
This court and others have held that Section 10 [of the APA] is an independent source of District Court jurisdiction to review the action, or inaction, of administrative agencies. [citations omitted]
As a jurisdictional source, however, the APA is of the “gap-filling” variety. It does not give a blanket grant of jurisdiction, but merely provides it where necessary.
Oljato Chapter of Navajo Tribe v. Train, 169 U.S.App.D.C. 195, 515 F.2d 654, 663 (1975).
In this case, it clearly cannot be said that there are any gaps that need to be filled. Congress has provided by statute that “any person, adversely affected by a final determination of the Commission under [19 U.S.C. § 1337(d, e)
In their effort to support jurisdiction in this Court, plaintiffs rely primarily on Coca-Cola Co. v. FTC, 475 F.2d 299 (5th Cir. 1973), cert. denied, 414 U.S. 877, 94 S.Ct. 121, 38 L.Ed.2d 122 (1973); Pepsico, Inc. v. FTC, 472 F.2d 179 (2d Cir. 1972), cert. denied, 414 U.S. 876, 94 S.Ct. 44, 38 L.Ed.2d 122 (1973); and Amos Treat & Co. v. SEC, 113 U.S.App.D.C. 100, 306 F.2d 260 (1962). In each of these cases, the Circuit Court of Appeals held that there was jurisdiction in the district court to consider a particular interlocutory aspect of an agency decision even though review of the entire final agency action was vested by statute in the Court of Appeals. These cases all arose in different factual and legal contexts than is presented in this litigation. Assuming them to be applicable here, however, the Court concludes that they do not support
Beyond that, the cases cited by plaintiffs create a very narrow jurisdictional basis. Here, the Commission has not exercised its authority “in excess of its jurisdiction or otherwise acted in a manner that is clearly at odds with the specific language of a statute,” Coca-Cola Co. v. FTC, supra, 475 F.2d at 303. Nor has it in progress a proceeding “that is plainly beyond its jurisdiction as a matter of law or is being conducted in a manner that cannot result in a valid order,” Pepsico, Inc. v. FTC, supra, 472 F.2d at 187. The Court finds “judicial vindication of the alleged rights” to be inappropriate in these circumstances, Coca-Cola Co. v. FTC, supra, 475 F.2d at 303. Nothing presented by plaintiffs is sufficient to sustain the jurisdiction of this Court.
For the foregoing reasons, defendant’s motion to dismiss the complaint is hereby granted and plaintiffs’ motion for a preliminary injunction is denied. Engelhard’s motion to intervene is accordingly moot.
SO ORDERED.
. Counsel for the Commission has represented to this Court, as it has previously in other forums, that plaintiffs will be allowed to intervene and participate fully in the “public interest” phase.
. Unfortunately, the Commission has no rules of practice and procedure to govern this or other situations. Proposed rules were published in September, 1975, but no further action has yet been taken. Although not urged by plaintiffs as an issue in this litigation, the Commission would be well advised formally to promulgate final rules.
. Also before the Court is Engelhard’s motion to intervene as a defendant pursuant to Fed.R.Civ.P. 24(b)(2), which was filed shortly before the case was set to be heard. Counsel for Engelhard was allowed to make a presentation at oral argument.
. The Court of Customs and Patent Appeals has, in this very case, held that final Commission determinations under 19 U.S.C. § 1337(f) are also within its appellate jurisdiction, Import Motor Limited, Inc. et al. v. United States International Trade Commission et al., 530 F.2d 940 (Cust.Pat.App.1976).
. In its opinion in this case, the Court of Customs and Patent Appeals expressly rejected plaintiffs’ argument that they would suffer sufficient adverse effects from the Commission’s Order to warrant treating it as a final determination.
. Plaintiff is particularly concerned about the 60-day period under 19 U.S.C. § 1337(g), during which the Commission’s determination would be effective but no appeal could yet be taken to the Court of Customs and Patent Appeals.
. Since the Court concludes that it does not have jurisdiction of this suit, it is unnecessary to consider the matter on the merits. However, it should be noted that plaintiffs have not made a very strong showing on the substantive issue. Of necessity, a certain amount of discretion must be granted to the Commission for such rulings, and courts must defer to a reasonable exercise of that discretion. This is particularly true here, as recognized by the Court of Customs and Patent Appeals in its opinion in this case, in light of the strict time limits imposed by statute upon the Commission’s investigation. Plaintiffs have largely failed to demonstrate that the Commission was mistaken, much less in abuse of its discretion, in concluding that their interests in the first phase of the proceeding were already adequately represented. While the Court of Customs and Patent Appeals may have been too grudging in this case in construing its jurisdiction and interpreting the statutory phrase “final determination of the Commission,” see, e. g., Thermal Ecology Must Be Preserved v. AEC, 139 U.S.App.D.C. 366, 433 F.2d 524, 526 (1970), that is a matter of no concern to this Court. The appropriate means to review that decision is by writ of certiorari to the Supreme Court.