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Statistics on Commission and/or Federal Circuit reversals of ALJ decisions

I previously posted the results of a study concerning reversals of ALJ decisions by the Commission and/or the Federal Circuit. This study concluded that while reversals occurred there was a strong likelihood that the ALJ’s initial determination will be affirmed. I have found a more recent study that concentrated on the ALJs claims construction findings. This study, while also indicating that the odds still favor the ALJ being upheld, came up with better reversal rates (ALJ’d decision being reversed, or vacated and remanded) than the previous study. Below is the data from my previous post, and my summary of the statistics from the new study.

Abstract from previous post (#208220)

A fast outcome without reasonable certainty in the outcome is not particularly valuable.  However, the record for affirming an ALJ’s Initial Determination before the Commission and on appeal to the Federal Circuit is generally better than for the District Courts.  Since 1974, out of 200 ITC Investigations, there were only 12 investigations (6%) where the ALJ was entirely reversed by the Commission.  In the rest the ALJ’s Initial Determination was either affirmed without review (32 investigations), affirmed after review with modifications or partial reversals that did not alter the outcome (69 investigations); or adopted where the Initial Determination was no longer contested on appeal (87 investigations), such as consent orders, settlements, complaint withdrawn after Initial Determination (“ID”) and ID vacated for mootness. 
            On appeal to the Federal Circuit, the Commission’s Final Determination is also generally upheld.  Again, since 1974, of 79 investigations that have been appealed to the Federal Circuit, only 13 (16.4%) were entirely reversed.  The majority were affirmed in the entirety (51 investigations), and some were modified but affirmed without altering the outcome (15 investigations). Thus, there is a very strong likelihood that the ALJ’s Initial Determination will become the Final Determination and that Final Determination will be affirmed if appealed to the Federal Circuit.  By contrast, only 60 - 65% of District Court claim constructions are sustained on appeal at the Federal Circuit. 

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Summary of new study

This was a study about the reversal of ITC determinations made in regard to claims construction. The study was based on a review of Federal Circuit case decisions issued between April 24, 1996 (date of Markman decision) and June 30, 2008.

1. During the study period, 29 decisions were issued by the Federal Circuit relevant to claim construction. Nine (9), or 31% were reversed (Table II).

2. In analyzing reversals based on the ALJs’ length of service at the ITC, Judge Luckern was included in a group of judges with 10+ years of service. For this group, 22 cases were covered, of which six (6), or 27%, were reversed. (table III)

3. In regard to ITC Commission reviews, recently they have taken a much more active role in reversing i.e altering, the AlJs’ claim construction determinations (table IV):

1996-2000...12 claim constructions reviewed...2 (17%) altered
2001-2004...22 claim constructions reviewed...3 (14%) altered
2005-2007...28 claim constructions reviewed..12(43%) altered

4. In 19 cases where the Commission did not review or change the ALJs’ determination, the Federal Circuit reversed 5 (26%). In 10 cases where the Commission did change the ALJs’ determinations, four(4), or 40%, were reversed by the Federal Circuit. (table V).

The study is available for download at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270428