   United States Court of Appeals for the Federal Circuit


                                  Miscellaneous No. 841




                             IN RE PRINCO CORPORATION
                         and PRINCO AMERICA CORPORATION,

                                                             Petitioners.




      Eric L. Wesenberg, Orrick, Herrington & Sutcliffe LLP, of Menlo Park, California, filed
a response for petitioners. With him on the response were Robert E. Freitas, Cynthia A.
Wickstrom and Jason S. Angell.

      Garrard R. Beeney, Sullivan & Cromwell LLP, of New York, New York, filed a
combined petition for panel rehearing and rehearing en banc for respondent, U.S. Philips
Corporation. With him on the petition were Maite Aquino, James T. Williams, and Adam R.
Brebner. Also on the petition were Margaret K. Pfeiffer and Bruce W. Hickey, of
Washington, DC.

On Petition for Writ of Mandamus to the United States District Court for the Southern
District of New York

Judge Charles L. Brieant, Jr.
  United States Court of Appeals for the Federal Circuit

                            MISCELLANEOUS DOCKET NO. 841


                              IN RE PRINCO CORPORATION
                          and PRINCO AMERICA CORPORATION,

                                                                    Petitioners.

                              ON PETITION FOR REHEARING

Before BRYSON, LINN, and DYK, Circuit Judges.

DYK, Circuit Judge.

                                            ORDER

       On March 1, 2007, we granted Princo Corporation and Princo America Corporation’s

(“Princo”) petition for a writ of mandamus and directed the United States District Court for

the Southern District of New York to stay the case pursuant to 28 U.S.C. § 1659 (2000)

“until related proceedings before the [International Trade] Commission, including any

appeals, become final.” In re Princo Corp., 478 F.3d 1345, 1348 (Fed. Cir. 2007). We

construed the term “until the determination of the Commission becomes final” in § 1659 to

include any subsequent appeal periods.            In a petition for rehearing, U.S. Philips

Corporation (“Philips”) contends that the court erred in construing the “becomes final”

language in § 1659 to require finality on appeal. Philips notes that the same “becomes

final” language appearing in 28 U.S.C. § 1659 also appears in 19 U.S.C. § 1337, and in the

latter statute necessarily refers to finality only at the Commission level.

       Philips is correct that the “becomes final” language in § 1337 refers to finality at the

Commission level since that provision defines the right to appeal from a final judgment of

the Commission. Section 1337(c) provides that “[a]ny person adversely affected by a final
determination of the Commission . . . may appeal such determination, within 60 days after

the determination becomes final, to the United States Court of Appeals for the Federal

Circuit.”   Subsection 1337(j) permits the President to intervene for 60 days after the

Commission determines that there is a violation of § 1337.        If the President does not

disapprove of the determination with 60 days, § 1337(j)(4) provides that “such

determination shall become final on the day after the close of such period or the day on

which the President notifies the Commission of his approval, as the case may be.”

       As the Supreme Court held in Clay v. United States, 537 U.S. 522, 527 (2003),

language relating to finality must be construed in the context of the particular statute:

“[f]inality is variously defined; like many legal terms, its precise meaning depends on

context.” Here sections 1337 and 1659 were enacted at different times, appear in different

titles of the U.S. Code, and have quite different purposes. The “becomes final” language in

§ 1337 was added to title 19 in 1975 as part of the Trade Act of 1974, Pub. L. 93-618,

§ 314(a), 88 Stat. 1978 (Jan. 3, 1975). 1 In particular, § 1337(c) was enacted to “extend the

right to judicial review of final Commission determinations.” S. Rep. No. 93-1298 (1974),

reprinted in 1974 U.S.C.C.A.N. 7186, 7329.

       In contrast, § 1659 was enacted twenty years later in 1994 as part of the Uruguay

Round Agreement Act, Pub. L. 103-465, Title III, § 321, 108 Stat. 4945 (Dec. 8, 1994), to

ensure that United States procedures for dealing with alleged infringements by imported

products are consistent with the GATT 1994 “national treatment” rules. H.R. Rep. No. 103-

826(I), at 142 (1994), reprinted in 1994 U.S.C.C.A.N. 3773, 3914.           The purpose of



       1
             The current language was added as subsection (g)(4) but was redesignated
as subsection (j)(4) in 1988. Pub. L. 100-418, § 1342(a)(5)(A), 102 Stat. 1107 (Aug. 23,
1988).


Misc. 841                                    2
§ 1659(a) was to prevent infringement proceedings from occurring “in two forums at the

same time.” 2 Id. at 141. These different purposes make it appropriate to interpret the

“becomes final” language in § 1337 and § 1659 differently.         In the case of § 1337, the

purpose of the statute is to allow judicial review after final Commission action. “Becomes

final” thus necessarily refers to finality before judicial review. In the case of § 1659, the

purpose of the statute is to avoid duplicative proceedings. “Becomes final” in that context

refers to finality after judicial review. As discussed in our original opinion, 478 F.3d at 1355,

the purpose of avoiding duplicative proceedings cannot be achieved if the stay does not

extend to proceedings on appeal.

       Moreover, it is quite significant that the definitional provision of § 1337 limits the

definition of “becomes final” to subsections (j)(3) and (c) and does not refer to § 1659.

Section 1337(j)(4) provides that “for purposes of paragraph (3) and subsection (c) of this

section such determination shall become final on the day after the close of such period or

the day on which the President notifies the Commission of his approval, as the case may

be.” § 1337(j)(4). Section 1337(j)(4) makes no reference to § 1659, and § 1659 makes no

reference to § 1337(j)(4). In similar circumstances, where there is an “absence of any

explicit connector between” the two statutes, the Supreme Court has declined to read a

definition from one statute into another, finding the absence of a cross-reference to be

“revealing.” United States v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213,

220 (1996). Thus, in 26 U.S.C. § 4971, the Internal Revenue Code (“Tax Code”) defined
       2
               Philips argues that Congress intended to address only the burden of litigating
before the Commission, as opposed to the lighter burden of litigating appeals of the
Commission’s decisions, during the pendency of parallel proceedings before a district
court, but we see no indication of such a congressional intent, and we doubt that Congress
would have intended the on-again, off-again stays that could result from Philips’s
interpretation.


Misc. 841                                      3
“tax” but the Bankruptcy Code in 11 U.S.C. § 507 did not. The Supreme Court held that the

Tax Code definition was inapplicable finding it “significant . . . that Congress included no

such reference in § 507(a)(7)(E), even though the Bankruptcy Code itself provides no

definition of ‘excise,’ ‘tax,’ or ‘excise tax.’” Reorganized CF & I Fabricators of Utah, Inc.,

518 U.S. at 220. Even when the definition appears in a single statute, our sister circuits

have also held that definitions limited to one section should not be applied to another

section.    Thus, for example, the Fourth Circuit held that, where Congress limited the

definition of “investigative or law enforcement officer” to 28 U.S.C. § 2680(h), “[t]o apply the

§ 2680(h) definition beyond that subsection would make meaningless the limitation that

Congress placed on the definition.” Andrews v. United States, 441 F.3d 220, 226 (4th Cir.

2006); see also U.S. Postal Serv. v. Amada, 200 F.3d 647, 650-51 (9th Cir. 2000) (holding

that where the definition of “lottery” is “expressly limited to [18 U.S.C.] § 1307(b)” the

definition cannot be applied to a related civil statute). 3

       We conclude that § 1337 is not designed to define finality for purposes of § 1659

and that finality in the latter section has a different meaning, namely that a Commission

proceeding does not “become final” until all appeals are exhausted. We see no reason to

alter the construction of § 1659 set forth in our original opinion.

       Accordingly,

       IT IS ORDERED THAT:

       3
               Philips also points out that 19 U.S.C. § 3512(b)(2)(B)(iv) of the 1994
legislation, concerning challenges to state laws on the ground of inconsistency with the
Uruguay Round Agreements, provides that “any State law that is declared invalid shall not
be deemed to have been invalid in its application during any period before the court’s
judgment becomes final and all timely appeals, including discretionary review, of such
judgment are exhausted.” This language does not suggest that the term “becomes final”
standing alone excludes appellate review, but rather that, in that context, Congress wished
to make particularly clear that it did include appellate review.


Misc. 841                                        4
      The petition for rehearing is denied.

                                                  FOR THE COURT



            May 4, 2007                           s/Timothy B. Dyk
             Date                                 Timothy B. Dyk
                                                  Circuit Judge




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