Today’s order list.
19-1434 UNITED STATES V. ARTHREX, INC., ET AL.
19-1452 SMITH & NEPHEW, INC., ET AL. V. ARTHREX, INC., ET AL.
19-1458 ARTHREX, INC. V. SMITH & NEPHEW, INC., ET AL.
The petition for a writ of certiorari in No. 19-1434 is granted as to Federal Circuit case No. 2018-2140, and the petitions for writs of certiorari in Nos. 19-1452 and 19-1458 are granted, all limited to Questions 1 and 2 as set forth in the July 22, 2020 Memorandum for the United States. The cases are consolidated, and a total of one hour is allotted for oral argument.
Link to United States Memorandum in the above cases.
The questions that the court will resolve are below.
Whether, for purposes of the Appointments Clause, U.S. Const. Art. II, § 2, Cl. 2, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the President with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head.
Whether, if administrative patent judges are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. 7513(a) to those judges.
Whether the court of appeals in Arthrex erred by adjudicating an Appointments Clause challenge that had not been presented to the agency.
The Supreme Court has been very busy with the Appointments Clause in the last couple of terms and now they are back to take another poke at it.
Administrative law judges have been in the grey area, in some cases being considered principle officers and in some cases being considered inferior officers, depending on the agency and their role in it.
It is a very interesting case, as it potentially affects the power of the President.