Yesterday, the Federal Circuit reversed an attempt by the ITC to hide certain issues from judicial review in General Electric v. ITC, No. 2010-1223.
After the ITC makes an initial determination, that determination becomes final (and therefore appealable) unless the ITC orders review of initial determination, in whole or part. When the ITC reviews some or all issues following an initial determination, those issues become appealable after a final determination. But what happens when an issue is selected for review, but then is not actually reviewed?
Before yesterday, the ITC’s position was that issues selected but not reviewed may not be appealed to the Federal Circuit. The ITC reasoned that when the full Commission does not review an issue that it noticed for review, no final determination is made on that issue, and therefore no appeal of that issue can be taken. The Federal Circuit disagreed:
19 C.F.R. §210.42(h)(2) provides that issues decided by Initial Determination and not reviewed by the full Commission become final, and are appealable to the Federal Circuit. This right cannot be negated by taking no position on the issue. The result propounded by the Com-mission is anomalous: if the issue decided by initial determination is “noticed” and then reviewed by the Commission, the decision of that issue is routinely subject to appeal by the losing party; if the issue is not “noticed” by the Commission, the decision is again routinely subject to appeal by the losing party; but if the issue is “noticed” by the Commission and then not reviewed, the decision is not subject to appeal by the losing party.
The rule going forward is clear: If an issue decided in an initial determination is not actually reviewed, that issues may then be appealed (even if it was notice for review). If an issue is reviewed in a final determination, an appeal is properly taken following the final determination.
The question remains whether the application of this rule will be clear. It may be the case that where an issue is noticed for review—but not actually reviewed—some ambiguity may exist as to what the proper time is for taking an appeal.