U.S. Court of Appeals for the Federal Circuit, Philip Morris v. ITC, Docket No. 2022-1227

Forfeiture (U.S. Federal Courts)

 

 

 

“Forfeiture is the failure to make the timely assertion of a right.” Pavo Sols. LLC v. Kingston Tech. Co., 35 F.4th 1367, 1380 (Fed. Cir. 2022) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)). We have “regularly stated and applied the important principle that a position not presented in the tribunal under review will not be considered on appeal.” Id. (quoting In re Google Tech. Holdings LLC, 980 F.3d 858, 863 (Fed. Cir. 2020)); see also Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule . . . that a federal appellate court does not consider an issue not passed upon below.”).

 

 

This court recognizes that failure to raise an issue before an ALJ during an investigation constitutes forfeiture of that issue. Kyocera Wireless Corp. v. Int’l Trade Comm’n, 545 F.3d 1340, 1352 (Fed. Cir. 2008).

 

 

 

(U.S. Court of Appeals for the Federal Circuit, March 31, 2023, Philip Morris v. ITC, Docket No. 2022-1227)