When the Clock Strikes Twice: Crocs Takes Piecemeal ITC Appeals to the Supreme Court

Crocs, Inc. recently filed a petition for a writ of certiorari before the U.S. Supreme Court (No. 26-421), asking the Court to review and resolve the question: “Whether an agency disposition is final as to some issues, thus triggering deadlines for judicial review, while other issues decided in the same disposition remain subject to further executive or administrative review.”

The U.S. solicitor general’s response is due October 28, 2026.

Background

In June 2021, Crocs filed a complaint at the U.S. International Trade Commission (ITC), accusing multiple respondents of violating Section 337 of the Tariff Act of 1930 by importing, selling for importation, or selling after importation in the United States certain casual footwear that allegedly infringed or diluted two of Crocs’ trademarks that are directed to the three-dimensional configuration of Crocs’ Classic Clog shoes.^[1] Only three respondents participated in an evidentiary hearing in September 2022, with the other named respondents defaulting. The administrative law judge (ALJ) issued an initial determination (ID) in January 2023 that found (1) no Section 337 violation by the three respondents who appeared, and (2) that Crocs waived its infringement claim against the defaulting respondents.

On September 14, 2023, the ITC issued a final determination (FD) that (1) affirmed the ID’s findings of no violation with respect to the three participating respondents; and (2) issued a limited exclusion order (LEO) against the defaulting respondents after finding that Crocs had not been required to present infringement contentions against them and that the public interest did not preclude relief. After the LEO was issued, the President had 60 days from September 14, 2023, to review the ITC’s determination, but the President did not modify the result. Shortly after that Presidential review period passed, Crocs filed an appeal to the U.S. Court of Appeals for the Federal Circuit on December 22, 2023, to challenge the ITC’s findings.

Federal Circuit Opinion

On January 8, 2026, the Federal Circuit dismissed Crocs’ appeal with respect to the ITC’s findings of no violation, relying on the language of Section 337 and its case law to explain that:

[I]n investigations that have a mixed result of a violation finding (subject to a Presidential review period prior to the 60-day appeal window starting) and a no-violation finding (not subject to a Presidential review period and so final for the purposes of starting the 60-day appeal window at the time it issues), the notices of appeal for the different findings have distinct appeal windows.

As applied to Crocs’ investigation, because the ITC’s finding of no violation became “a final decision of the Commission on the day it issued,” the court found that Crocs should have filed its appeal by November 13, 2023, and Crocs’ filing date on December 22, 2023, was thus untimely. Crocs’ appeal on this issue was dismissed, and the court denied Crocs’ subsequent petition for rehearing by the full court.

Crocs’ Petition

In general, Crocs’ petition advanced three reasons why the Supreme Court should take up the appeal:

1. Circuit Split: Crocs identifies a circuit split over the issue of “whether a single agency disposition can be final as to some issues while nonfinal as to others,” with the U.S. Court of Appeals for the 4th Circuit and U.S. Court of Appeals for the D.C. Circuit “hold[ing] that an agency disposition remains nonfinal while any part of it is subject to further administrative review” and the U.S. Court of Appeals for the 9th Circuit (along with the Federal Circuit, after its decision in Crocs) “holding that a single agency disposition can be final as to some issues while nonfinal as to others.” Crocs’ petition also argues that “[t]his conflict implicates numerous agency review processes” and “has recurred in cases arising under the Federal Power Act, the Communications Act, the Federal Mine Safety and Health Act, the securities laws, and, now, the Tariff Act.”
2. Decision is Wrong: Crocs argues that the Federal Circuit’s decision “conflicts with longstanding principles of finality and the rule against piecemeal review,” that “[t]he statutory regime [of Section 337], in both its plain language and its structure, contemplates only a single appeal from a single final determination at the conclusion of an ITC investigation." Crocs argued further that, as a practical matter, the decision can create a conundrum for litigants: “File just one notice of appeal while issues remain under agency review, the court has held, and the appeal will be dismissed as ‘premature’ as to those issues. Wait until the determination is final as to all claims and parties, and the appeal is too late.”
3. Ideal Vehicle: Crocs maintains that its finality argument was preserved at every stage of the appeal, and because the Federal Circuit has exclusive jurisdiction over appeals from the ITC’s final determinations, Crocs argues that it is even more pressing for certiorari to be granted in this case because, absent the Court’s intervention, the Federal Circuit’s decision is likely to stand, which means ITC trial attorneys must continue to proceed with piecemeal appeals or risk forfeiture of their clients’ appeal rights 

Takeaway

ITC investigations move fast, and while Crocs’ petition is pending, it is important for parties to be extra vigilant of appeal deadlines and recognize what issues are considered final versus non-final for appellate purposes to avoid dismissal.