780 F2d 29 Surface Technology Inc v. United States International Trade Commission

780 F.2d 29

7 ITRD 1628, 4 Fed. Cir. (T) 25

SURFACE TECHNOLOGY, INC., Petitioner,
v.
UNITED STATES INTERNATIONAL TRADE COMMISSION, Respondent.
ELEKTROSCHMELZWERK KEMPTEN, GMBH, et al., Petitioners,
v.
UNITED STATES INTERNATIONAL TRADE COMMISSION, Respondent.
W. SCHLAFHORST & CO., et al., Petitioners,
v.
UNITED STATES INTERNATIONAL TRADE COMMISSION, Respondent.

Appeal Nos. 85-1163, 85-1862 and 85-1863.

United States Court of Appeals,
Federal Circuit.

Dec. 5, 1985.
As Amended Dec. 20, 1985.

Kenneth J. Burchfiel, Sughrue, Mion, Zinn, Macpeak & Seas, Washington, D.C., argued for petitioner. With him on the brief was Thomas J. Macpeak, P.C, Italo H. Ablondi, F. David Foster and Sturgis M. Sobin, Ablondi & Foster, P.C., Washington, D.C., of counsel.

Judith M. Czako, Office of the General Counsel, U.S. Intern. Trade Com'n, Washington, D.C., argued for respondent ITC. With her on the brief were Lyn M. Schlitt, Gen. Counsel and Michael P. Mabile, Asst. Gen. Counsel.

Donald D. Evenson, Barnes & Thornburg, Washington, D.C., argued for petitioner W. Schlafhorst & Co. With him on the brief was Ryan M. Fountain. Dalbert U. Shefte, Richards, Shefte, & Pinckney, Charlotte, N.C. and Donald E. Knebel, Barnes & Thornburg, Indianapolis, Ind., of counsel.

Herbert I. Cantor, Cantor & Lessler, Bethesda, Md., argued for petitioner Elektroschmelzwerk. Milton J. Wayne and Richard M. Goldberg Burgess, Ryan & Wayne, New York City, of counsel.

Before FRIEDMAN, RICH, and DAVIS, Circuit Judges.

ORDER*

RICH, Circuit Judge.


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1

Surface Technology, Inc. (STI) filed a complaint alleging unfair acts and methods of competition in violation of Sec. 337 of the Tariff Act of 1930 before the International Trade Commission. Elektroschmelzwerk Kempten, GMBH (ESK) and W. Schlafhorst and Co. (Schlafhorst) participated as respondents before the ITC. Ultimately the Commission found no violation of Sec. 337. All three parties have filed appeals from the ITC's determination.

2

Pursuant to 19 U.S.C. Sec. 1337(c), a party adversely affected by a final determination of the ITC may appeal to this court.

3

In view of the ITC's finding of no violation of Sec. 337 by ESK and Schlafhorst, these parties are without standing to appeal. American Telephone and Telegraph Company v. U.S. International Trade Commission, 626 F.2d 841 (CCPA 1980). Accordingly, their appeals will be dismissed.

4

ESK and Schlafhorst are entitled to participate in STI's appeal before this court in which they may raise any claim in support of the ITC's determination of no violation. Krupp International, Inc. v. U.S. International Trade Commission, 626 F.2d 844 (CCPA 1980). This court, however, will not review those portions of the presiding officer's determinations on which the Commission has taken no position. Beloit v. Valmet Oy, 742 F.2d 1421 (Fed.Cir.1984). Accordingly,

IT IS ORDERED:

5

(1) ITC's motions to dismiss cross-appeal Nos. 85-1862 and 85-1863 are granted.

6

(2) ESK's and Schlafhorst's motions to intervene as appellees in appeal no. 85-1163 are granted.

7

(3) ESK's motion to consolidate appeal nos. 85-1862 with 85-1863 and STI's motions to intervene in appeal nos. 85-1862 and 85-1863 are rendered moot.


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8

(4) The Clerk shall set a revised briefing schedule.

*

This Order, originally issued on April 10, 1985, as an unpublished order, is reissued for publication, with correction of typographical errors