CHAPTER 3 THE EVOLUTION OF LIMITED EXCLUSION ORDER RELIEF
3.4.3 Abolishing the “Exclusive Or” Doctrine
(I) Cease-and-Desist Order Buyers Many (III)
?
(IV) Exclusion
order
TABLE 3-5 A PRE-LIMITED EXCLUSION ORDER REMEDIAL MATRIX
In 1981, several difficult cases previously introduced shattered the foundation of the traditional idea of in rem exclusion order because Cease-and-Desist Orders could not be used either. The USITC found itself without a just and effective remedy unless it, in effect, invent one. The year began with several months of internal disputes and uncertainty inside the USITC regarding the scope and effect of General Exclusion Order relief. Nevertheless, after a year of questioning, amending, and rejected long-settled doctrines, the USITC evolved an improved form of relief in the Limited Exclusion Order.
3.4.3 Abolishing the “Exclusive Or” Doctrine
The rigid “Exclusive Or” precedent set by Doxycycline, Inv. No. 337-TA-3, was overturned by the Commission Determination of Coin-Operated Audio-Visual Games and
Components, Inv. No. 337-TA-87, on May 26, 1981. The complainant requested
Cease-and-Desist Orders against multiple U.S.-based importers and an exclusion order against international exporters. The Investigative Attorney supported complainant’s request. The
189 The USITC issued its first cease and desist orders in Apparatus for the Continuous Production of Copper Rod, Inv. No. 337-TA-052. Few cases would appear more suitable for cease and desist order relief.
USITC’s General Counsel submitted a memorandum to support.190 ALJ Saxon found 15 respondents violated Section 337 and dismissed other 10 respondents.191
Despite the USITC did issue 18 Cease-and-Desist Orders. They were replaced by a permanent exclusion order in three months.192 The final issuance of only one type of order was only because the complainant failed to prove the necessity of Cease-and-Desist Orders.
Therefore, the USITC overturned the “Exclusive Or” doctrine in May 1981.
To abolish the “Exclusive Or” doctrine, one has to abandon the traditional view of the
“in lieu of” language and adopt a new policy. In a personal opinion, the USITC’s General Counsel interpreted the statute under the light of increased flexibility:193
However, cease and desist powers were given to the Commission by the Congress in 1974 in order to increase the Commission’s remedial flexibility in dealing with unfair competition. The applicable legislative history concerning section 337(f) supports this view:
It is clear to your committee that the existing statute, … is so extreme or inappropriate in some cases that it is often likely to result in the Commission not finding a violation of this section, thus reducing the effectiveness of section 337 for the purpose intended. …
It is well established that remedial statutes are to be liberally construed to effectuate the purpose of the statute, and section 337 is a remedial statute.
On the topic of statutory construction, Sutherland states:
Remedial statutes are liberally construed to suppress the evil and advance the remedies (citations omitted) (3 Sutherland, Statutes and Statutory Construction, § 60.01, 29-30 (4th ed. 1972 rev. Sands)).
… It is obvious that Congress intended to grant the Commission more flexibility to advance the remedy and suppress the evil (unfair competition). A construction of section 337 that precludes the Commission from effectively dealing with unfair competition by constraining it from utilizing both cease orders and exclusion where appropriate, weakens the remedial effect of the statute.
190 Coin-Operated Audio-Visual Games and Components Thereof, Commission Determination, USITC GC-E-134, Inv. No. 337-TA-87, 1981 WL 178417 (May 26, 1981).
191 Coin-Operated Audio-Visual Games and Components Thereof, Recommended Determination, Inv. No. 337-TA-87, 1981 WL 178477 (January 9, 1981).
192 DONALD KNOX DUVALL et al, UNFAIR COMPETITION AND THE ITC, 344 (2005).
193 USITC GC-E-134.
In addition to using legislative history, the General Counsel’s opinion relied on widely-accepted Sutherland, Statutes and Statutory Construction to prove that the USITC was authorized to issue both types of remedial order against an unfair act. Both legislative history and Sutherland are secondary authorities.
The “liberally construed” doctrine cited by the General Counsel has been reviewed by a controversial paper by Karl Llewellyn.194 He pointed out “[s]tatutory interpretation still speaks in a diplomatic tongue” and listed 28 rules and their own equally acceptable antithesis.195 This doctrine is not wrong. It has been cited by the U.S. Supreme Court many times.196 It is just not the only way to view the law.
Unlike Limited Exclusion Order relief, this in-house statutory construction was definitely harsher than the old rules. It allowed the issuance of an in rem exclusion order and one or several additional Cease-and-Desist Orders against individual U.S.-based parties. The USITC may have stretched the doctrine of flexibility as far as needed to overthrow the old doctrine. The USITC’s change of statutory construction may be essentially self-help.
However, the statutory construction was based on a need to service an agency’s policy. If a court should review this administrative statutory construction, the court may likely affirm it under Chevron deference (see Section 1.1.3). The creation of Limited Exclusion Order relief loosened the burden on third party exporters and helped to alleviate the harshness of the new statutory construction.
194 Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons of About How Statutes are to be Construed, 3 VAND.L.REV. 395, 401 (1950). For detailed discussions on Llewellyn’s work, please refer to, e.g., Jonathan R. Macey & Geoffrey P. Miller, The Canons of Statutory Construction and Judicial Preferences, 45 VAND.L.REV. 647, 647 (1992). (“A regrettable side-effect of Karl Llewellyn’s interesting critique of the canons of statutory construction was that intellectual debate about the canons was derailed for almost a quarter of a century.”); Michael Sinclair, “Only a Sith Thinks Like That”: Llewellyn’s
“Dueling Canons,” One to Seven, 50 N.Y.L.SCH.L.REV. 919 (2006). (“Llewellyn is correct: this pair of canons cannot solve such a question. A judge who uses one or the other without explaining the ground on which she does so has not switched on her brain. Explaining the ground requires answering Heydon’s Case’s first questions, that is, explaining the purpose for enacting the statute at the time it was enacted, for ‘[a] statute merely declaring a rule, with no purpose or objective, is nonsense.’ ”).
195 Id.
196 E.g., United States v. An Article of Drug … Bacto-Unidisk, 394 U.S. 784, 798 (1968). (“remedial legislation such as the Food, Drug, and Cosmetic Act is to be given a liberal construction consistent with the Act’s
overriding purpose to protect the public health, and specifically, § 507’s purpose to ensure that antibiotic products marketed serve the public with ‘efficacy’ and ‘safety.’ ”).