Abstract
This article will examine the several flaws in the Federal Circuit’s decision in Badger-Powhatan. However, until the Federal Circuit’s view of finality changes, the Badger-Powhatan opinion is instructive as to what parties have do to prevent similar dismissals by that court. The first factor the Federal Circuit appears to look for when determining if a decision is final is whether the CIT ordered a remand to the agency. Therefore it may be necessary to report all remand results back to the CIT, regardless of request in the order, so that the CIT may affirm the remand results and enter judgment to that effect. The second factor the Federal Circuit apparently considers is that if a party wants to appeal a CIT order, it must file a notice of appeal before the agency takes action pursuant to 19 U.S.C. § 1516a(e) and publishes notice of the redetermination on remand. Filing the appeal will prevent the CIT order from becoming a “final court decision in the action” within the meaning of 19 U.S.C. § 1516a(e) and will therefore “stay publication until the Federal Circuit has decided the issue. If these steps are taken, then parties will not lose their right to appeal adverse CIT orders, and the apparent Catch-22 situation in the Badger-Powhatan decision may be avoided.
Recommended Citation
Jackson, Craig L.
(1988)
"Final Orders and Stays of Publication—Avoiding the Badger-Powhatan Catch 22,"
Florida Journal of International Law: Vol. 3:
Iss.
2, Article 4.
Available at:
https://scholarship.law.ufl.edu/fjil/vol3/iss2/4