Realtek Semiconductor Corporation v. International Trade Commission

United States Court of Appeals
for the Federal Circuit
______________________
REALTEK SEMICONDUCTOR CORPORATION,
Appellant
v.
INTERNATIONAL TRADE COMMISSION,
Appellee
DIVX, LLC,
Intervenor
______________________
2023-1095
______________________
Appeal from the United States International Trade
Commission in Investigation No. 337-TA-1222.
______________________
Decided: March 18, 2025
______________________
T HEODORE J. A NGELIS , K&L Gates LLP, Seattle, WA,
argued for appellant.
CARL P AUL BRETSCHER , Office of the General Counsel,
United States International Trade Commission, Washing-
ton, DC, argued for appellee. Also represented by D OMINIC
L. BIANCHI, WAYNE W. HERRINGTON.
WILLIAM MEUNIER , Mintz, Levin, Cohn, Ferris, Glovsky
and Popeo, P.C., Boston, MA, argued for intervenor. Also
Case: 23-1095 Document: 102 Page: 1 Filed: 03/18/2025

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REALTEK SEMICONDUCTOR CORPORATION v. ITC 2
represented by SAMUEL D AVENPORT , MATTHEW A.
K ARAMBELAS , MICHAEL RENAUD, ADAM R IZK, J AMES M.
WODARSKI; N ANA L IU, San Francisco, CA
______________________
Before M OORE, Chief Judge, REYNA and T ARANTO, Circuit
Judges.
REYNA, Circuit Judge.
Realtek Semiconductor Corporation appeals from a
United States International Trade Commission decision
adopting an administrative law judge’s order denying a
motion for sanctions against DivX, LLC. Realtek argues
that the Commission violated the Administrative Proce-
dure Act by failing to enter an order sua sponte for DivX to
show cause explaining why it did not commit sanctionable
conduct. We conclude that the Commission’s refusal to en-
ter a show cause order sua sponte is within the agency’s
discretion and therefore unreviewable. We thus dismiss
Realtek’s appeal.
BACKGROUND
This appeal arises from the United States Interna-
tional Trade Commission’s (“Commission”) investigation of
DivX, LLC’s (“DivX”) complaint alleging a violation of
19 U.S.C. § 1337 by Realtek Semiconductor Corporation
(“Realtek”) and others. See J.A. 17–18, 4227–28 (also avail-
able at 85 Fed. Reg. 66355 (Oct. 19, 2020)). DivX later filed
an unopposed motion to withdraw its complaint against
Realtek, which the Administrative Law Judge (“ALJ”)
granted and the Commission adopted on review, thereby
terminating the investigation as to Realtek. J.A. 4229–36.
Realtek subsequently filed a motion for sanctions against
DivX, alleging that certain misconduct occurred seven to
twelve months prior. See J.A. 20–21, 2231–32. The ALJ
issued an order denying the motion on procedural grounds.
J.A. 2231–35. Realtek petitioned for review, in which it
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REALTEK SEMICONDUCTOR CORPORATION v. ITC 3
requested the Commission exercise its authority to enter
an order sua sponte that DivX show cause why it had not
committed sanctionable conduct under 19 C.F.R.
§ 210.4(d)(1)(ii).1 J.A. 2359–60. The Commission decided
not to review and adopted the ALJ’s order without com-
ment. J.A. 23.
On appeal, Realtek argues that the Commission vio-
lated the Administrative Procedure Act (“APA”) by failing
to enter a show cause order sua sponte. Appellant’s
Br. 23–28. The Commission responds as the appellee, and
DivX as an intervenor. The Commission and DivX argue
that Realtek’s appeal should be dismissed on grounds of
standing or jurisdiction under 28 U.S.C. § 1295(a)(6) and
19 U.S.C. § 1337(c). Appellee’s Br. 26–36; Intervenor’s
Br. 1–2, 26–32. Additionally, the Commission argues that
Realtek’s appeal should be dismissed because it is unre-
viewable. Appellee’s Br. 20–26. Alternatively, the Com-
mission and DivX argue that the Commission did not abuse
its discretion by refusing to enter a show cause order sua
sponte. Appellee’s Br. 38–43; Intervenor’s Br. 32–40.
D ISCUSSION
Agency decisions are unreviewable by this court under
the APA when they are “committed to agency discretion by
law.” 5 U.S.C. § 701(a)(2); see Apple Inc. v. Vidal, 63 F.4th
1, 14 n.6 (Fed. Cir. 2023). In this instance, the
1 The provision at § 210.4(d)(1)(ii) states, in full: “On
the administrative law judge’s or the Commission’s initia-
tive. The administrative law judge or the Commission may
enter an order sua sponte describing the specific conduct
that appears to violate paragraph (c) of this section and di-
recting an attorney, law firm, party, or proposed party to
show cause why it has not violated paragraph (c) with re-
spect thereto.”
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REALTEK SEMICONDUCTOR CORPORATION v. ITC 4
Commission’s decision not to enter a show cause order sua
sponte is a decision committed to agency discretion and is
thus unreviewable. The sua sponte issuance of a show
cause order is a decision that “may” be, not must be, en-
tered “[o]n the administrative law judge’s or the Commis-
sion’s initiative.” 19 C.F.R. § 210.4(d)(1)(ii). A decision not
to act sua sponte, then, which is left to an agency’s “initia-
tive,” is a decision that remains wholly within the agency’s
discretion. This is because the agency, of its own accord,
decides if and when it will enter a show cause order sua
sponte. Furthermore, we agree with the Commission that
“[t]o find otherwise would be a contradiction in terms, as it
would mean a ‘sua sponte’ act under the Commission’s ini-
tiative could be demanded by a party or compelled by a
court of review.” Appellee’s Br. 21.
Realtek argues that its appeal is reviewable because
the Commission failed to “provide reasoning, even when
the ultimate decision is committed to agency discretion.”
Appellant’s Reply Br. 3. According to Realtek, review
would allow this court to “determine, for example, if there
have been illegal ‘shenanigans’ in exercising discretion.”
Appellant’s Reply Br. 3–4 (quoting Cuozzo Speed Techs.,
LLC v. Lee, 579 U.S. 261, 275 (2016)). But the cited portion
of Cuozzo addresses review of “shenanigans” in agency de-
cisions that fall within reviewable categories listed at
5 U.S.C. § 706(2), such as agency actions that are “contrary
to constitutional right, in excess of statutory jurisdiction,
or arbitrary and capricious.” Cuozzo, 579 U.S. at 275
(cleaned up). None of these categories applies to the Com-
mission’s refusal to enter a show cause order sua sponte.
We see no further support for Realtek’s view that discre-
tionary agency actions under § 701(a)(2) become reviewa-
ble under the APA if the agency fails to provide reasoning.
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CONCLUSION
We have considered Realtek’s remaining arguments
and find them unpersuasive. For the reasons stated, we
dismiss Realtek’s appeal.2
DISMISSED
COSTS
Costs against Realtek.
2 We need not reach the Commission and DivX’s ar-
guments that Realtek lacks standing or lacks jurisdiction
under 28 U.S.C. § 1295(a)(6) and 19 U.S.C. § 1337(c). If no
cause of action exists, “questions of standing and jurisdic-
tion became immaterial.” Nat’l R.R. Passenger Corp. v.
Nat’l Ass’n. of R.R. Passengers, 414 U.S. 453, 465 n.13
(1974). Here, because we conclude that § 701(a)(2) pre-
cludes APA review of the Commission’s refusal to enter a
show cause order sua sponte, there is no cause of action
which Realtek may have standing to bring or over which
we may exercise jurisdiction. See id. at 456; see also Block
v. Cmty. Nutrition Inst., 467 U.S. 340, 353 n.4 (1984);
Alarm.com, Inc. v. Hirshfeld, 26 F.4th 1348, 1353 n.3
(Fed. Cir. 2022).
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