By Eric Schweibenz
In Section 337 actions before the International Trade Commission (the “Commission”), the Office of Unfair Import Investigations (the “Commission Investigative Staff” or “OUII”) serves as an independent third party representing the public interest.  OUII’s principal task is to help create a complete record on all contested issues so that the Commission can properly enforce the provisions of Section 337.  This is necessary because, unlike with district court litigation, a Section 337 action “is not purely private litigation ‘between the parties’ but rather is an ‘investigation’ by the Government into unfair methods of competition or unfair acts in the importation of articles into the United States.”  Young Eng’rs, Inc. v. U.S. Int’l Trade Comm’n, 721 F.2d 1305, 1315 (Fed. Cir. 1983).

OUII can trace its origins back to the Trade Act of 1974 (the “Trade Act”), which instituted significant changes in the procedures for Section 337 actions.  Prior to the passage of the Trade Act, the provisions of the Administrative Procedure Act (“APA”) did not apply to Section 337 actions, and there was therefore very limited participation by the private parties after institution of an investigation -- the Commission investigated complaints directly.  This changed drastically after the enactment of the Trade Act.  The private parties suddenly had substantial new rights to participate directly in Section 337 proceedings.  The problem, however, was that now the Commission could not directly communicate with the private parties ex parte because it was serving as an administrative fact-finder.  To remedy this situation, OUII (originally known as the Unfair Import Investigations Division or “UIID”) was created so as to represent the public interest in the proceeding and help the Commission reach a correct and fully informed determination.

OUII plays a number of critical roles in Section 337 investigations, beginning even before a complaint is filed.  Complainants typically consult with OUII before filing in order to ensure the technical sufficiency of the draft complaint and to improve the likelihood of having the Commission institute an investigation based on the complaint.  During the 30-day period following the filing of the complaint, OUII consults with the Complainant and proposed Respondents and then makes a recommendation to the Commission on whether to institute an investigation.

Once the Commission institutes an investigation, OUII’s primary role is to aid in the creation of a complete record in order to support the public’s interest in a correct and fully-informed decision by the Commission.  To this end, OUII can propound written discovery and participate in depositions just like the private parties.  OUII independently briefs the issues relevant to the public interest and will generally take a position on most of the critical legal issues in the investigation.

After an ALJ issues an Initial Determination, OUII remains an independent third party to the investigation and participates in briefing during review by the Commission.  If the Commission’s Final Determination is appealed to the Federal Circuit, however, it is the job of the Office of the General Counsel to represent the Commission on appeal.  OUII continues to play a role in the enforcement of the Commission’s determination, and participates in any formal enforcement proceedings.