The United States Court of Appeals for the Federal Circuit recently granted a petition for a panel rehearing by the U.S. International Trade Commission (ITC) and withdrew a component of a published decision that would have prohibited the ITC's practice of circumscribing the scope of Federal Circuit reviews of ITC decisions.1
ITC adjudications in Section 337 cases are a two-step process. An Administrative Law Judge (ALJ) holds a hearing and issues an Initial Determination (ID). If the Commission as a whole does not vote to review the ID, either by granting a party's petition or on its own motion, then the ID becomes the Final Determination (FD)2. Otherwise, the Commission's decision is the FD. The FD is ultimately appealable to the Federal Circuit.3
In some instances the Commission notices review of sections of the ID that it then later chooses not to rule upon. It has been the long-standing position of the Commission that under such circumstances the only issues ripe for appeal to the Federal Circuit are the ones upon which it actually ruled. The Federal Circuit arguably endorsed this position.4
In the strongly worded initial decision in this case by Circuit Judge Pauline Newman, a 3-0 panel of the Federal Circuit, including Chief Judge Randall R. Rader and Circuit Judge Richard Linn, rejected the ITC's practice of noticing issues from Initial Determinations but not reviewing them, thereby depriving the aggrieved party of the statutory right of appeal: "This right [of appeal] cannot be negated by taking no position on the issue."5
The ITC filed a petition for panel rehearing and rehearing en banc. Upon invitation by the panel, General Electric filed a response to the petition.
By a 2-1 decision authored by Chief Judge Rader and joined in by Judge Linn, the panel granted the ITC's petition for panel rehearing for the limited purpose of withdrawing the portion of the initial decision prohibiting the ITC from limiting the scope of judicial review. The Court, however, did not foreclose revisiting the issue at a later date: "The panel offers no decisions on the questions raised in Part III, which may arise in future cases."6
Because the Federal Circuit has left the issue unresolved, appellants in ITC cases would be well advised to consider continuing to preserve the issue for appeal should it arise in their case.