The Federal Circuit is fond of saying: “We review judgments — not opinions.” I was recently reviewing the In re Sang-Su Lee opinion and the court’s statement would seem to be less applicable to agency decisions in view of what Judges Dyk, Newman, and Clevenger articulated for the court in that case:
Alternative Grounds
At oral argument the PTO Solicitor proposed alternative grounds on which this court might affirm the Board’s decision. However, as stated in Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962), “courts may not accept appellate counsel’s post hoc rationalization for agency action.” Consideration by the appellate tribunal of new agency justifications deprives the aggrieved party of a fair opportunity to support its position; thus review of an administrative decision must be made on the grounds relied on by the agency. “If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers 1346*1346 to be a more adequate or proper basis.” Securities & Exchange Comm’n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947). As reiterated in FederalElection Comm’n v. Akins, 524 U.S. 11, 25, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998),“If a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency’s action and remand the case — even though the agency (like a new jury after a mistrial) might later, in the exercise of its lawful discretion, reach the same result for a different reason.” Thus we decline to consider alternative grounds that might support the Board’s decision.
In re Sang-Su Lee, 277 F.3d 1338, 1345-46 (Fed. Cir. 2002). (Link)