U.S. International Trade Commission v. ASAT, Inc.

Notice: This opinion is subject to formal revision before publication in the

Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the

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bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 15, 2005 Decided June 10, 2005

No. 05-5009

U.S. INTERNATIONAL TRADE COMMISSION,

APPELLEE

v.

ASAT, INC.,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 04mc00395)

Matthew J. Brigham argued the cause for appellant. With

him on the briefs was Thomas J. Friel, Jr. and Lori R.E.

Ploeger.

Wayne W. Herrington, Counsel, U.S. International Trade

Commission, argued the cause for appellee. On the brief were

Timothy P. Monaghan, Attorney, and Neal J. Reynolds, Acting

Assistant General Counsel.

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Louis S. Mastriani and Scott A. Lasher were on the brief for

amici curiae CARSEM (M) SDN BHD, et al. in support of

appellee.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL,

Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This is an appeal from an order

granting a petition of the United States International Trade

Commission for enforcement of its subpoena for the production

of documents under section 333(b) of the Tariff Act of 1930, 19

U.S.C. § 1333(b) (2000). ASAT, Inc. challenges enforcement

on the grounds that the district court lacked subject matter and

personal jurisdiction, was not the proper venue, and,

alternatively, erred by refusing to review whether ASAT, Inc.

controlled the subpoenaed documents that are in its parent

companies’ possession. Although we hold that the district court

had subject matter jurisdiction and was a proper venue, and that

because section 333(b) of the Tariff Act of 1930 authorizes

nationwide service of process, it also had personal jurisdiction

over ASAT, Inc., we nonetheless reverse the order enforcing the

administrative subpoena because the record lacks sufficient

evidence to determine, as a matter of law, that ASAT, Inc.

controls, and therefore is able to produce, the subpoenaed

documents.

I.

The subpoena underlying this appeal was issued during an

investigation by the United States International Trade

Commission under section 337 of the Tariff Act of 1930, 19

U.S.C. § 1337, of whether the importation of certain

encapsulated integrated circuits by Carsem, Inc., Carsem (M)

Sdn Bhd, and Carsem Semiconductor Sdn Bhd (collectively

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“Carsem”) infringes three United States patents owned by

Amkor Technology, Inc. (“Amkor”). See In Matter of Certain

Encapsulated Integrated Circuit Devices & Products Containing

Same, Inv. No. 337-TA-501 (U.S.I.T.C.). At the request of

Carsem, an Administrative Law Judge (“ALJ”) issued three

identical subpoenas seeking documents and depositions from

ASAT, Inc., ASAT Limited, and ASAT Holdings Ltd., non-

parties to the investigation that allegedly have documents

relative to Carsem’s likely affirmative defenses. ASAT, Inc. is

a California corporation with headquarters in Pleasanton,

California. It is a wholly-owned subsidiary of both ASAT

Limited, which is a Hong Kong corporation with a principal

office in Hong Kong, and ASAT Holdings Ltd., which is a

Cayman Islands holding corporation with a principal office in

Hong Kong. ASAT Limited is itself also a wholly-owned

subsidiary of ASAT Holdings Ltd. ASAT, Inc.’s principal

activities are the selling, marketing, and provision of customer

services for its parent companies’ integrated circuits in the

United States. Carsem served each subpoena on ASAT, Inc. in

California. The subpoena duces tectum requested a range of

technical and legal documents relating to, among other things,

the prosecution and licensing of two patents - one that is

assigned to ASAT Limited and one that is assigned to Amkor.

ASAT Limited and ASAT Holdings moved to quash the

subpoenas for improper service, and the ALJ granted the motion

because Carsem “ha[d] not shown a lack of corporate

separateness among the three ASAT entities” and ASAT, Inc.

was not a registered agent to accept service on their behalf.

ASAT, Inc. also objected to its subpoena on various grounds,

including that it did not have possession, custody or control of,

or the legal right to obtain, certain documents because they were

in the possession of ASAT Limited or ASAT Holdings Ltd. The

ALJ, noting that ASAT, Inc. is “the exclusive distributor of

ASAT Holdings services in the United States,” found that there

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was a “close business relationship between the three ASATs”

and ruled that “ASAT Inc. is deemed to be in control of

documents held by ASAT Limited and ASAT Holdings.”

After ASAT, Inc. partially complied with the subpoena but

advised Carsem that it was unable to obtain the relevant

documents from ASAT Limited and ASAT Holdings Ltd.

relating to the cross-licensing arrangement between ASAT

Holdings Ltd. and Amkor on the patents in question, Carsem

moved to certify to the Commission a request for judicial

enforcement of the subpoena. The ALJ agreed, stating that “the

information sought in the subpoena relates to communications

between ASAT and Amkor and the prosecution of the ASAT

and Amkor patents that is relevant to Carsem’s affirmative

defense” and “for which there is no other source.” The ALJ

understood ASAT Inc.’s “flat refusal to comply with the

subpoena . . . [as] a showing of contempt for the Commission’s

discovery processes.” The Commission granted the ALJ’s

request, and, on August 11, 2004, it filed a petition in the district

court for the District of Columbia to enforce the subpoena. The

district court granted the petition, ruling that it had jurisdiction

and that none of ASAT, Inc.’s substantive challenges to the

administrative subpoena fell within the court’s limited scope of

review. U.S. Int’l Trade Comm’n v. ASAT, Inc., 335 F. Supp. 2d

67 (D.D.C. 2004). The district court stayed its enforcement

order, which is a final appealable order, see FTC v. Texaco, Inc.,

555 F.2d 862, 873 n.21 (D.C. Cir. 1977) (en banc), and ASAT,

Inc. now appeals.

II.

Section 333(b) of the Tariff Act provides that the

Commission may require the “attendance of witnesses and the

production of such documentary evidence . . . from any place in

the United States at any designated place of hearing.” 19 U.S.C.

§ 1333(b). Significantly, the subsection further provides:

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[I]n case of disobedience to a subpoena the

commission may invoke the aid of any district or

territorial court of the United States in requiring the

attendance and testimony of witnesses and the

production of documentary evidence and such court

within the jurisdiction of which such inquiry is carried

on may, in case of contumacy or refusal to obey a

subpoena issued to any corporation or other person,

issue an order requiring such corporation or other

person to appear before the commission, or to produce

documentary evidence if so ordered or to give evidence

touching the matter in question.

Id. (emphasis added). The question whether the district court

has subject matter jurisdiction over an action is generally

distinct from the question whether it was a proper venue in

which the action could be filed. See Neirbo Co. v. Bethlehem

Shipbuilding Corp., 308 U.S. 165, 167-68 (1939); WRIGHT,

MILLER, & COOPER, F EDERAL PRACTICE AND PROCEDURE §

3801 (2d ed. & Supp. 2005); cf. Tex. Mun. Power Agency v.

EPA, 89 F.3d 858, 867 (D.C. Cir. 1996); New Mexico ex rel.

Energy & Minerals Dep’t v. U.S. Dep’t of Interior, 820 F.2d

441, 446 (D.C. Cir. 1987). The former addresses the power of

the court to adjudicate, while the latter addresses the place

where that judicial authority may be exercised and focuses on

the convenience to the parties of the location of the lawsuit.

Neirbo, 308 U.S. at 167-68. However, in the context of section

333(b) of the Tariff Act, the two inquiries merge. Under the

analysis adopted in FEC v. Committee to Elect Lyndon

LaRouche, 613 F.2d 849, 856-57 (D.C. Cir. 1979), the district

court’s subject matter jurisdiction under section 333(b) turns on

whether the Commission’s inquiry was “carried on” in the

judicial district in which the Commission filed its enforcement

action, 19 U.S.C. § 1333(b). In this instance, the court is

required to determine “(1) whether the District of Columbia bore

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a sufficiently ‘reasonable relation to the subject matter of the

investigation’ to qualify as a place where the inquiry was carried

on, and (2) whether the [Commission’s] choice of this

jurisdiction as its place of inquiry exceeded ‘the bound of

reasonableness.’” LaRouche, 613 F.2d at 856-57 (quoting FTC

v. MacArthur, 532 F.2d 1135, 1140 (7th Cir. 1976)) (internal

citation omitted). Because the second criterion resembles a

traditional venue analysis that focuses on the convenience of the

forum to the parties, see Neirbo, 308 U.S. at 168, it may more

properly be said that the first LaRouche criterion implicates the

district court’s subject matter jurisdiction, while the second

criterion implicates whether that court is a proper venue.

Indeed, in light of Steel Co. v. Citizens for a Better Environment,

523 U.S. 83, 90 (1998), it may be that section 333(b) is properly

viewed not as jurisdictional but as only implicating the district

court’s remedial power. The court suggested, in dictum, in

United States v. Hill, 694 F.2d 258, 267 (D.C. Cir. 1982), where

there was no enforcement provision in the agency statute at

issue, that the general jurisdictional grants in 28 U.S.C. §§ 1331,

1337, 1345 provide the district court with subject matter

jurisdiction over actions to enforce administrative subpoenas.

However, because it is not so clear that Steel Co. is inconsistent

with the characterization of similar statutory language in

LaRouche and FTC v. Browning, 435 F.2d 96 (D.C. Cir. 1970),

this court has no occasion to adopt a different analysis. See

LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en

banc).

ASAT, Inc. contends that the phrase “such court within the

jurisdiction of which such inquiry” should be interpreted to

include only the location of the “attendance of witnesses and the

production of such documentary evidence,” 19 U.S.C. §

1333(b), and it should not be understood to encompass the

broader investigation into Carsem’s alleged infringing practices.

While the use of the terms “investigation” and “inquiry” in

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section 333 could suggest that the two terms are not

synonymous, but see FTC v. Jim Walter Corp., 651 F.2d 251,

254 (5th Cir. 1981), abrogated on other grounds by Ins. Corp.

of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694

(1982), ASAT, Inc.’s interpretation ignores the Commission’s

efforts under section 333(b) to obtain the “attendance of

witnesses and the production of such documentary evidence”

that occur outside of the jurisdiction where the subpoena is

directed. ASAT, Inc. provides no justification for such a

confined construction of what constitutes the Commission’s

inquiry, and our caselaw indicates that the place where the

subpoena is returnable is not determinative of the place of

inquiry, see LaRouche, 613 F.2d at 857 n.7. Thus, ASAT, Inc.’s

contention that the Northern District of California is the only

district that has jurisdiction to enforce the Commission’s

subpoena because that is the location where the Commission

sought the production of documents must fail.

Instead “[t]he test whether the Commission is undertaking

an inquiry in a particular place is whether [the] place and the

activities occurring there bear a reasonable relation to the

subject matter of the investigation.” MacArthur, 532 F.2d at

1140. Among the factors relevant to this determination are: the

place where the Commission held its hearing, the place where it

made the decision to authorize the investigation, the place where

the subpoenas were issued, the place where its correspondence

emanated, the place where the Commission determined that

unlawful actions had occurred, the location of the documents

and witnesses, and the location of the headquarters of the

subpoenaed company. See LaRouche, 613 F.2d at 857;

MacArthur, 532 F.2d at 1140; Browning, 435 F.2d at 99. This

test is based on our precedent, and it is consistent with the

Commission’s broad investigatory powers, see 19 U.S.C. §§

1332, 1337; cf. MacArthur, 532 F.2d at 1140.

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ASAT, Inc. attempts to define the inquiry narrowly and to

minimize the Commission’s activities within the District of

Columbia relating to it, but the district court had subject matter

jurisdiction because “the District of Columbia, where the

Commission maintains its headquarters, was the hub of the

Commission’s investigative activity” of Carsem’s importation

of certain encapsulated circuits. LaRouche, 613 F.2d at 857.

Even if we were to ignore, as ASAT, Inc. suggests, that the

ALJ’s evidentiary hearing regarding Carsem’s actions was held

in the District of Columbia, the Commission’s activities

regarding the subpoena at issue were conducted overwhelmingly

in the District of Columbia: The subpoena was signed, sealed,

and issued in the District of Columbia, the ALJ’s rulings on

ASAT’s motion to quash were issued in the District of

Columbia, and the Commission’s certification of the subpoena

for judicial enforcement occurred in the District of Columbia.

Because, as the district court stated, the Commission conducted

the “administrative activities essential to the investigation in [the

District of Columbia],” ASAT, Inc., 335 F. Supp. 2d at 71, the

district court here had subject matter jurisdiction under section

333(b) of the Tariff Act, see LaRouche, 613 F.2d at 857;

MacArthur, 532 F.2d at 1140.

Although these wholly administrative activities may occur

in the District of Columbia in most, if not all, Commission

inquiries and therefore the district court for the District of

Columbia often, if not always, would have subject matter

jurisdiction, contrary to ASAT Inc.’s contention, this reality

does not rewrite the statute to substitute “the district court for

the District of Columbia” in place of “such court within the

jurisdiction of which such inquiry is carried on” in section

333(b). Instead, as the Commission notes, it is not required to

hold hearings in the District of Columbia. Rather, while the

Tariff Act establishes the Commission’s principal office in the

District of Columbia, 19 U.S.C. § 1331(d), it also authorizes the

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Commission to maintain an office in New York, id. § 1331(e),

and to “prosecute any inquiry necessary to its duties in any part

of the United States,” id. § 1331(d). And, while the district

court for the District of Columbia may have subject matter

jurisdiction when the Commission conducts its administrative

actions here, our precedent is clear that an inquiry can be carried

on in more than one place. See LaRouche, 613 F.2d at 858 n.9;

Browning, 435 F.2d at 99 n.7. As long as the factors derived

from LaRouche, MacArthur, and Browning so indicate, it

properly can be said that an inquiry is carried on in that place,

and the district court in that judicial district has subject matter

jurisdiction to enforce the Commission’s subpoena.

ASAT, Inc.’s challenge to venue focuses on the

reasonableness of the Commission’s selection of the district

court for the District of Columbia to seek enforcement of its

administrative subpoena. It makes no statutory claim that, as a

non-party to an administrative proceeding, it can determine the

place of enforcement. Cf. Neirbo, 308 U.S. at 618; Miss. Publ’g

Corp. v. Murphree, 326 U.S. 438, 445 (1946). Instead, its

principal concern is that it is “being forced to defend its actions

in remote jurisdictions.” Br. of Appellant at 20. However,

ASAT, Inc. has demonstrated no actual hardship of defending

itself in the District of Columbia, especially since it already had

participated in administrative proceedings in the District of

Columbia. Hence, it is not difficult to conclude that the

Commission’s choice of the District of Columbia to enforce the

subpoena is well-within the “bound of reasonableness.”

LaRouche, 613 F.2d at 857 (quoting MacArthur, 532 F.2d at

1140) (internal quotation marks omitted).

III.

ASAT, Inc.’s challenge to the personal jurisdiction of the

district court is similarly unavailing. Rule 4(k)(1) of the Federal

Rules of Civil Procedure, as relevant, authorizes extra-territorial

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service of process consistent with the long-arm statute of the

state (or the District of Columbia, see FED . R. CIV. P. 81(e)) in

which the district court sits or as otherwise provided by federal

law. The Commission does not maintain that the District of

Columbia’s long-arm statutes, e.g., D.C. CODE ANN. §§ 13-423,

13-334 (2001), authorized service of process on ASAT, Inc. in

California, but it instead contends that section 333(b) of the

Tariff Act, which permits enforcement of Commission

subpoenas by district or territorial courts “within the jurisdiction

of which such inquiry is carried on,” 19 U.S.C. § 1333(b),

authorizes nationwide service of process in actions to enforce

Commission subpoenas.

On two occasions the court has confronted identical or

strikingly similar language in other statutes and concluded that

Congress intended to imply nationwide service of process. In

Browning, the court interpreted the identical language of section

9 of the Federal Trade Commission Act, 15 U.S.C. § 49, and

held that:

by granting the power to enforce subpoenas only to

those district courts ‘within the jurisdiction of which

such inquiry is carried on,’ Section 9 so limits the place

of suit for enforcement of Federal Trade Commission

subpoenas as to require an implied grant of authority

for extra-territorial service of process in order to

effectuate the purpose of the regulatory scheme.

Browning, 435 F.2d at 100. Similarly, in LaRouche, the court

held that “the reasoning of the Browning decision [was] equally

applicable” to “virtually identical” language in the Federal

Election Campaign Act of 1971, 613 F.2d at 659, 862, where

Congress had limited jurisdiction for actions to enforce Federal

Election Commission subpoenas to district courts “within the

jurisdiction of which any inquiry is being carried on,” 2 U.S.C.

11

§ 437d(b).

Thus, with such similar statutory language in the Tariff Act

and the Commission’s nationwide jurisdiction to conduct

investigations, Browning and LaRouche compel the conclusion

that nationwide service of process exists for subpoena

enforcement actions under section 333(b) of the Tariff Act.

ASAT, Inc. contends, however, that the Supreme Court’s

decision in Omni Capital Int’l v. Rudolf Wolff & Co, Ltd., 484

U.S. 97 (1987), alters this analysis. In Omni Capital, the Court

held that the Commodity Exchange Act did not authorize

nationwide service of process for private causes of action under

that statute. That decision, however, does not undermine the

Commission’s position that the Tariff Act provides nationwide

service of process for subpoena enforcement actions.

First, in Omni Capital, the Supreme Court found it

significant that although the Commodity Exchange Act’s

provision authorizing a private cause of action was silent as to

service of process, other enforcement provisions in the statute

expressly provided for nationwide service of process. Id. at 106.

With the Commodity Exchange Act, all Congress had to do was

use the same language it had used in other sections within the

same statute to indicate its desire for nationwide service of

process; its failure to do so was strong evidence of its intent not

to authorize nationwide service of process. See id. at 106-07.

The same cannot be said of the Tariff Act, where Congress has

been completely silent as to service of process. Silence

throughout the statute is weaker evidence of congressional intent

to preclude nationwide service of process than in Omni Capital

because there is no indication that Congress considered and

rejected nationwide service of process for actions under section

333(b). While Omni Capital demonstrates that Congress knows

how to provide for nationwide service of process expressly and

its failure to do so here counsels against implying nationwide

12

service of process lightly, such express language is unnecessary

when it is clear, as discussed below, that Congress would have

desired nationwide service of process to effectuate the

underlying statute’s purpose.

Second, Omni Capital involved a private cause of action, as

opposed to agency enforcement proceedings, as in Browning,

LaRouche, and the instant case. The Commission maintains this

distinction is important because without nationwide service of

process, “Congress would have provided the [district] [c]ourt

with the authority to hear the enforcement proceeding but not

the power to enforce the subpoena in question.” Br. of Appellee

at 25. For example, the Commission states that the lack of

nationwide service of process would frustrate its congressionally

mandated purpose of conducting nationwide investigations, see

19 U.S.C. §§ 1332, 1337, because the District of Columbia was

the only place where the inquiry was carried on in this matter

and therefore the only place that it could file an action to

enforce its subpoena under section 333(b). ASAT, Inc. responds

that so long as the subpoena seeks documents in a location other

than the place of hearing, there will always be multiple places

where the inquiry is carried on. Although it is true that the

Commission’s inquiry could be carried on in more than one

place, see LaRouche, 613 F.2d at 858 n.9; Browning, 435 F.2d

at 99 n.7, that does not mean that in every instance an inquiry

will be carried on in multiple places or that the inquiry will be

carried on in the place where the subpoenaed documents are

located. This is so because the location of the subpoenaed

documents, even if it is also the place where the subpoena is

returnable, may not be a place of inquiry under the factors

derived from LaRouche, MacArthur, and Browning. See, e.g,

Jim Walter Corp., 651 F.2d at 255.

We conclude, therefore, that it is necessary to imply

nationwide service of process for actions to enforce Commission

13

subpoenas under section 333(b) of the Tariff Act because there

otherwise could be a gap in the Commission’s enforcement

regime where no judicial district could enforce a Commission

subpoena without the party voluntarily submitting to the court’s

jurisdiction. However, to the extent the Commission justifies

nationwide service of process as necessary to avoid having to go

from judicial district to judicial district to enforce its subpoenas

against recalcitrant witnesses or reluctant document producers,

that contention erroneously presupposes that going from judicial

district to judicial district, although inefficient and inconvenient,

would result in the enforcement of every Commission subpoena.

In any event, in Hill, 694 F.2d at 269, the court suggested that

policy arguments regarding the most efficient or convenient

enforcement of Commission subpoenas are best addressed to

Congress. But see MacArthur, 532 F.2d at 1141.

Finally, relying on the Supreme Court’s statement in Omni

Capital that it “would consider it unwise for a court to make its

own rule authorizing service of summons,” 484 U.S. at 109,

ASAT, Inc. contends that the Court disapproved of implying

nationwide service of process. The Supreme Court, however,

made that statement after concluding that the Commodity

Exchange Act did not impliedly authorize nationwide service of

process and while discussing whether “the federal courts should

act to fill the ‘interstices in the law inadvertently left by

legislative enactment’ by creating their own rule authorizing

service of process.” Id. at 108 (quoting Point Landing, Inc. v.

Omni Capital Int’l, Ltd., 795 F.2d 415, 431-32 (5th Cir. 1986)).

Relying on our precedent, we have determined that Congress

impliedly authorized nationwide service of process for subpoena

enforcement actions under section 333(b) of the Tariff Act, and

therefore we have located the “legislative grant of authority

[that] is necessary.” Id. at 109 (citing Georgia v. Pa. R.R. Co.,

324 U.S. 439, 467-68 (1945)).

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Consequently, nothing in Omni Capital alters our

conclusion that section 333(b) of the Tariff Act impliedly

authorizes nationwide service of process in actions to enforce

the Commission’s subpoenas.

IV.

ASAT, Inc.’s final contention is that even if the district

court had jurisdiction and was a proper venue for this

enforcement action, the subpoena still should not be enforced

because ASAT, Inc. lacks control of the subpoenaed documents.

This court typically reviews a district court’s decision to enforce

an administrative subpoena for abuse of discretion. See, e.g.,

FTC v. GlaxoSmithKline, 294 F.3d 141, 146 (D.C. Cir. 2002).

However, because ASAT, Inc. contends the district court applied

the wrong legal standard, our review is de novo. Cf. In Re

Sealed Case, 146 F.3d 881, 883 (D.C. Cir. 1998). Because

ASAT Inc.’s challenge to the Commission’s authority requires

the court to address only a question of law – namely whether the

ALJ’s findings of fact are sufficient to give rise to a reasonable

inference that ASAT, Inc. had control of the subpoenaed

documents – a remand to the district court is unnecessary. See,

e.g., Empagran S.A. v. F. Hoffman-LaRoche, Ltd., 388 F.3d 337,

345 (D.C. Cir. 2004).

In a series of cases the Supreme Court has limited the

district court’s role in enforcing an administrative subpoena,

beginning with Endicott Johnson Corp. v. Perkins, 317 U.S.

501, 509 (1943), and Oklahoma Press Publishing Co. v.

Walling, 327 U.S. 186, 209 (1946). Most relevantly, in United

States v. Morton Salt Co., 338 U.S. 632 (1950), in the context of

the Federal Trade Commission’s investigatory powers to require

reports, the Supreme Court confined the judicial role to

determining whether “the inquiry is within the authority of the

agency, the demand is not too indefinite and the information

sought is reasonably relevant.” Id. at 652-53; see also United

15

States v. Powell, 379 U.S. 48, 57-58 (1964). With this

instruction, this court has held, in light “of the important

governmental interest in the expeditious investigation of

possible unlawful activity,” that the district court’s role is

“strictly limited.” Texaco, 555 F.2d at 872. The court has

explained, however, that “[a]lthough the investigative powers of

regulatory agencies are broad, they are not unlimited, and are

subject to judicial review ‘[t]o protect against mistaken or

arbitrary orders.’” In re FTC Line of Bus. Report Litig., 595

F.2d 685, 702 (D.C. Cir. 1978) (quoting Morton Salt, 338 U.S.

at 640); see also United States v. Markwood, 48 F.3d 969, 979

(6th Cir. 1995); Burlington N. Ry. Co. v. Office of Inspector

Gen., 983 F.2d 631, 638 (5th Cir. 1993); United States v. Int’l

Union of Petroleum & Indus. Workers, 870 F.2d 1450 (9th Cir.

1989); cf. Univ. Medicine & Dentistry N.J. v. Corrigan, 347

F.3d 57, 64 (3d Cir. 2003). But see United States v. Am. Target

Adver., Inc., 257 F.3d 348, 354 (4th Cir. 2001). See generally

EEOC v. United Airlines, Inc., 287 F.3d 643 (7th Cir. 2002).

ASAT, Inc. argued both in the district court and in this court

that it does not have control over the subpoenaed documents and

consequently, “[e]ven a deferential review of an ALJ finding

requires an analysis of whether the administrative subpoena

‘transcend[s] the agency’s investigatory power.’” Br. of

Appellant at 23 (quoting In re FTC Line of Bus. Report Litig.,

595 F.2d at 703). The district court, interpreting its limited role

in subpoena enforcement proceedings, refused “to revisit the

ALJ’s findings” that ASAT, Inc. had “control over the

documents in the possession of its corporate relatives.” ASAT,

Inc., 335 F. Supp. 2d at 72. However, the Commission does not

have authority under its regulations to subpoena documents from

ASAT, Inc. that are beyond ASAT, Inc.’s control, see 19 C.F.R.

§§ 210.30(a)(1), .32(b); cf. FED . R. CIV. P. 34(a)(1), and, of

course, the Commission is bound by its regulations, see, e.g.,

United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 267

16

(1954); Battle v. FAA, 393 F.3d 1330, 1336 (D.C. Cir. 2005).

Although the Supreme Court has circumscribed the district

court’s authority in proceedings to enforce administrative

subpoenas, the Court has not gone so far as to preclude the

district court from examining whether the Commission exceeded

its authority in light of ASAT, Inc.’s challenge to the ALJ’s

determination that it had control of the subpoenaed documents.

The parties agree that Camden Iron & Metal, Inc. v.

Marubeni America Corp., 138 F.R.D. 438 (D.N.J. 1991), sets

forth the applicable grounds for finding control of documents.

“‘Control’ is defined as the legal right, authority or ability to

obtain documents upon demand.” Id. at 441; see also SEC v.

Credit Bancorp, Ltd., 194 F.R.D. 469, 471 (S.D.N.Y. 2000);

WRIGH T , MILLER & COOPER, 8A FEDERAL PRACTICE &

PROCEDURE § 2210. Camden Iron indicates that courts have

concluded that a subsidiary corporation, like ASAT, Inc., has the

requisite control of documents that are in a parent company’s

possession where:

(1) the alter ego doctrine . . . warranted ‘piercing the

corporate veil’;

(2) the subsidiary was an agent of the parent in the

transaction giving rise to the lawsuit;

(3) [t]he relationship is such that the agent-subsidiary

can secure documents of the principal-parent to meet

its own business needs and documents helpful for use

in litigation;

(4) [t]here is access to documents when the need arises

in the ordinary course of business; and

(5) [the] subsidiary was [a] marketer and servicer of

the parent’s product (aircraft) in the United States.

138 F.R.C. at 441-42 (citing Gerling Int’l Ins. Co. v. Comm’r of

Internal Revenue, 839 F.2d 131, 140-41 (3d Cir. 1988)). It is the

17

Commission’s burden to establish that ASAT, Inc. has control

of the subpoenaed documents. See id. at 441; see also Int’l

Union of Petroleum & Indus. Workers, 870 F.2d at 1452.

The parties do not dispute that the subpoenaed documents

are not in ASAT, Inc.’s possession or custody, but instead are

possessed by one of ASAT, Inc.’s parent companies. The

Commission, like the ALJ, therefore relies on the fourth and

fifth grounds from Camden Irons to justify enforcing the

subpoena. The ALJ ruled that the fourth Camden Irons ground

applied because of the “close business relationship between the

three ASATs.” The ALJ also deemed ASAT, Inc. to control the

relevant documents under the fifth Camden Irons ground

because its principal activities on behalf of its parent companies

are sales, marketing and the provision of customer services.

Although ASAT, Inc.’s opening brief only expressly referenced

the fourth ground, as its counsel indicated during oral argument,

both the fourth and fifth grounds are challenged here, as they

were in the district court, for lack of a nexus between ASAT,

Inc.’s ordinary business and the subpoenaed documents. See Br.

of Appellant at 26-27; Reply Br. of Appellant at 15-17. This is

so because the fifth ground essentially describes what ASAT,

Inc. does in the ordinary course of business, which is exactly the

issue that ASAT, Inc. addressed in its opening brief.

Our review of the record and the ALJ’s factual findings do

not reveal support for a determination of control as a matter of

law. As an initial matter, the ALJ failed to explain the apparent

inconsistency between his two findings that “Carsem has not

shown a lack of corporate separateness among the three ASAT

entities,” and that there was such a “close business relationship

between the three ASATs” so as to deem ASAT, Inc. as having

control of its parent companies’ documents. More importantly,

neither the ALJ’s findings, nor the record, indicate whether

ASAT Inc.’s relationship with its parent companies would give

18

it access to the subpoenaed documents in the ordinary course of

business. As noted, the subpoenaed documents principally

relate to the prosecution and licensing of patents assigned to

ASAT Limited and Amkor. The record only vaguely indicates

that ASAT, Inc.’s “principal activities” are “sales, marketing

and customer services,” and it does not provide any context or

explanation for why ASAT, Inc. would have access to or even

need documents relating to a patent that it has not been assigned.

Simply because the ASATs share some documents during the

ordinary course of business is insufficient to deem ASAT, Inc.

as having control over the documents underlying the patents at

issue. See Camden, 138 F.R.D. at 442. While “the particular

form of the corporate relationship does not govern whether [a

corporation] controls documents,” Credit Bancorp, 194 F.R.D.

at 472, the ALJ’s ruling comes close to deeming all wholly

owned subsidiaries engaged in sales and servicing as controlling

their parent company’s documents. Such a result would be

impracticable. Instead, there must be a nexus between the

subpoenaed documents and ASAT, Inc.’s relationship with its

parent companies, taking into account, among other things,

ASAT, Inc.’s business responsibilities.

For similar reasons, the fifth Camden Irons ground, whose

origin is Cooper Industries, Inc. v. British Aerospace, Inc., 102

F.R.D. 918 (S.D.N.Y. 1984), is also unsupported by the record.

In Cooper Industries, the wholly owned subsidiary was the

distributor and servicer of its parent company’s airplanes in the

United States, and the subpoenaed documents were service

manuals and blueprints related to those airplanes. Id. at 919.

Because the subpoenaed documents “relate[d] to the planes that

[the subsidiary] work[ed] with every day,” the district court

found it “inconceivable that [the subsidiary] would not have

access to these documents and the ability to obtain them for its

usual business.” Id. at 919-20. Here, however, although the

nature of the relationship between ASAT, Inc. and its parent

19

companies may be comparable to the relationship in Cooper

Industries, the nature of the subpoenaed documents is manifestly

different. It is quite conceivable that ASAT, Inc. does not have

routine access to these documents because they do not seem to

relate directly to its principal activities. As another of the

Commission’s ALJs recognized in In the Matter of Certain

Optical Disk Controller Chips & Chipsets & Prods. Containing

Same, 2004 WL 2311060 (U.S.I.T.C. Oct. 5, 2004), merely

being a “sales and service” subsidiary does not establish the

subsidiary’s control over documents and information in the

parent’s possession.

The Commission acknowledges there must be a nexus

between the supoenaed documents and ASAT, Inc.’s business

responsibilities with its parent companies, maintaining that

“ASAT, Inc. could reasonably be expected to be provided

access to the documents of its two affiliates during the course of

this patent litigation, given that the litigation might clearly and

directly impact the ability of ASAT, Inc. to sell and service the

products of ASAT Holdings and ASAT Limited in the United

States.” Br. of Appellee at 14. However, this conclusion stands

for the untenable position that any subsidiary whose business

life may be threatened has the ability to control its parent’s

documents, and it appears to be based on pure speculation

without support in the record. The same is true for the

Commission’s position that, “as the exclusive operating arm of

ASAT Holdings and ASAT Limited in the United States, ASAT,

Inc. has the most direct interest in U.S. patent rights and licenses

owned by ASAT Holdings and ASAT Limited of which it may

be the beneficiary.” Id. at 39-40. This may be so, but the record

is not there to support such a finding. It remains for the

Commission either to instruct the ALJ to reopen the record to

allow further evidence and, based on modified findings by the

ALJ, to bring a separate petition for enforcement, or to seek the

documents directly from ASAT Holdings and ASAT Limited

20

through the Hague Convention protocols for obtaining

documents from foreign corporations, see FED . R. CIV. P. 4(f) &

Advisory Comm. Notes (1993).

Accordingly, we hold that the district court had subject

matter and personal jurisdiction and was a proper venue for

enforcement of the Commission’s subpoena against ASAT, Inc.,

but the court erred in refusing to review the ALJ’s determination

regarding control. Because the ALJ’s factual findings and the

record are insufficient to support a determination as a matter of

law that ASAT, Inc. has control of the subpoenaed documents,

we reverse the order enforcing the Commission’s subpoena.