Joe Fleming v. AGRI

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2019 Decided February 16, 2021

Reargued April 17, 2020

No. 17-1246

JOE FLEMING, INDIVIDUALLY, AND AS JOE FLEMING STABLES,

PETITIONER

v.

UNITED STATES DEPARTMENT OF AGRICULTURE,

RESPONDENT

Consolidated with 17-1249, 17-1250

On Petitions for Review from Orders of the

United States Department of Agriculture

David Broiles argued the cause for petitioners. With him

on the brief was Karin Cagle.

Ilya Shapiro was on the brief for amicus curiae Cato

Institute in support of petitioners.

Michael Pepson and R. James Valvo, III were on the brief

for amicus curiae Americans for Prosperity Foundation in

support of petitioners.

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Aditya Dynar was on the brief for amicus curiae The New

Civil Liberties Alliance in support of petitioners.

Hashim M. Mooppan, Deputy Assistant Attorney General,

U.S. Department of Justice, argued the cause for respondent.

With him on the brief were Mark R. Freeman, Mark B. Stern,

Joshua M. Salzman, Daniel Aguilar, and Amanda L. Mundell,

Attorneys.

Pratik A. Shah, appointed by the court, argued the cause as

amicus curiae. With him on the briefs were Z.W. Julius Chen,

and Rachel Bayefsky.

Alan B. Morrison and Richard J. Pierce, Jr. were on the

brief for amici curiae Alan B. Morrison et al., in support of

appointed amicus curiae.

Robert J. Lesnick was on the brief for amicus curiae The

Federal Administrative Law Judges Conference in support of

appointed amicus curiae.

Danette L. Walker (Mincey) was on the brief for amicus

curiae Association of Administrative Law Judges in support of

appointed amicus curiae.

Marilyn Dixon Zahm was on the brief for amicus curiae

SSA ALJ Collective in support of appointed amicus curiae.

Before: SRINIVASAN, Chief Judge, and KATSAS and RAO,

Circuit Judges.

Opinion for the Court filed by Chief Judge SRINIVASAN.

Opinion concurring in part and dissenting in part filed by

Circuit Judge RAO.

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SRINIVASAN, Chief Judge: The petitions for review in

these cases ask us to set aside decisions of the Department of

Agriculture imposing sanctions on petitioners for violating the

Horse Protection Act, 15 U.S.C. § 1821 et seq. After the

petitions for review were filed, the Supreme Court decided

Lucia v. SEC, 138 S. Ct. 2044 (2018), holding that the SEC’s

administrative law judges (ALJs) had not been appointed in

compliance with the Appointments Clause, U.S. Const. art. II,

§ 2, cl. 2. In light of Lucia, the government agrees with

petitioners that the ALJ who presided over petitioners’ cases

was improperly appointed. The government moves for vacatur

of the challenged orders and remand for new proceedings

before constitutionally appointed ALJs.

Petitioners, however, oppose the government’s motion,

urging us first to address a number of additional challenges

they advance. While we consider and reject one of those

additional claims, we cannot consider another of the arguments

because petitioners failed to present it before the agency, and

we decline to consider the remaining ones in the present

posture. We therefore grant the petitions for review and

remand these cases so that petitioners may have new

administrative hearings before validly appointed ALJs.

I.

A.

The Horse Protection Act, 15 U.S.C. § 1821 et seq.,

imposes penalties on persons who enter a “sore” horse into

shows or auctions. “Soring” refers to the practice of

intentionally injuring a horse’s forelimbs so that it will quickly

lift its feet as a result of the pain, inducing it to walk with a

high-stepping gait considered desirable for shows and

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exhibitions. See Thornton v. USDA, 715 F.2d 1508, 1510 (11th

Cir. 1983). The Horse Protection Act forbids the practice of

soring in order to prevent animal cruelty and protect the

industry. See id. Any person who knowingly shows or exhibits

a sore horse faces criminal and civil penalties, including

temporary disqualification from shows and exhibitions. 15

U.S.C. § 1825(a)(1), (b)(1), (c).

The Department of Agriculture enforces the Horse

Protection Act. The Department begins enforcement

proceedings under the Act (and other statutes it administers) by

filing an administrative complaint against suspected violators.

See 7 C.F.R. §§ 1.131, 1.133(b)(1). The proceeding is then

assigned to an ALJ within the agency. Id. § 1.132. A

respondent served with a complaint has twenty days to file an

answer. Id. § 1.136(a). If no answer is filed, the ALJ may enter

a default order. See id. §§ 1.136(c), 1.139. If an answer is filed,

the ALJ holds a hearing and issues a decision. Id. §§ 1.141,

1.142.

Parties can appeal the ALJ’s decision to a Department

officer known as the Judicial Officer. Id. § 1.145(a). The

Judicial Officer, exercising authority delegated by the

Secretary of Agriculture, acts as the agency’s final adjudicator.

Id. § 2.35(a). The Judicial Officer reviews the record and the

parties’ briefs, presides over any oral argument, and issues a

final decision for the Department. Id. §§ 1.145, 2.35(a). By

regulation, only decisions of the Judicial Officer are “final for

purposes of judicial review.” Id. §§ 1.139, 1.142(c)(4).

B.

In 2017, the Department filed an administrative complaint

against petitioners Jarrett Bradley, Joe Fleming, and Sam

Perkins, alleging that each of them had entered sored horses

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into competition in violation of the Horse Protection Act. No

petitioner filed a timely answer to the complaint against him,

and the agency moved for default orders in each case.

Petitioners then filed objections to the motions for default.

Among petitioners’ arguments, they contended that the

presiding ALJ qualified as an “Officer[] of the United States”

for purposes of the Constitution’s Appointments Clause, U.S.

Const. art. II, § 2, cl. 2, and had not been appointed in

compliance with the Clause. Without addressing that

argument, the ALJ entered the requested default orders,

assessing civil monetary penalties and temporarily

disqualifying petitioners from participating in horse shows or

exhibitions.

Petitioners appealed to the Judicial Officer, renewing their

contention that the ALJ had been improperly appointed.

Petitioners additionally argued that the Judicial Officer’s own

appointment was invalid under the Appointments Clause. The

Judicial Officer declined to rule on the Appointments Clause

challenge to the ALJ, finding that it “should be raised in an

appropriate United States Court of Appeals.” Joe Fleming,

76 Agric. Dec. 532, 535 (2017). With regard to the

constitutionality of his own appointment, the Judicial Officer

concluded that he had been lawfully appointed. Id. at 538.

After rejecting petitioners’ remaining arguments, the Judicial

Officer affirmed the default orders. Petitioners then sought

review in our court.

C.

While the petitions for review were pending, the Supreme

Court decided Lucia v. SEC, 138 S. Ct. 2044 (2018). Lucia

considered whether ALJs working in the Securities and

Exchange Commission had been appointed in violation of the

Appointments Clause. Id. at 2051. For purposes of the Clause,

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federal workers fall into three categories: (i) principal officers,

who must be appointed by the President with the advice and

consent of the Senate; (ii) inferior officers, who can be

appointed by the President, the head of a department, or a court

of law; and (iii) non-officer employees, whose appointments

are unaddressed (and thus unconstrained) by the Clause. See

id. at 2051 & n.3. Lucia held that the ALJ in that case was an

officer rather than an employee, and that his appointment was

invalid because he had not been appointed by the President, a

department head, or a court of law. Id. at 2055. The Court

vacated the ALJ’s order and remanded for proceedings before

a properly appointed ALJ. Id. at 2055.

After Lucia, the government conceded that the ALJ who

had decided petitioners’ cases was, as petitioners argued, an

inferior officer who had been improperly appointed. The

government thus moved our court to impose the same remedy

ordered in Lucia: vacatur of the challenged orders and remand

for new hearings before a different, properly appointed ALJ.

Petitioners, however, oppose the government’s motion,

urging us to address a number of additional arguments before

any remand. Specifically, petitioners argue, as they did before

the Judicial Officer, that (i) the Judicial Officer, appointed as

an inferior officer, is in fact a principal officer; (ii) the

Department’s ALJs also are principal officers, not just inferior

officers as is now conceded by the government; and (iii) the

Department lacked authority under the Horse Protection Act to

disqualify petitioners from entering horses in shows and

exhibitions. Petitioners also advance a new argument they

have not previously raised: the Department’s ALJs enjoy dual

layers of “for-cause” protection against their removal, 5 U.S.C.

§§ 1202(d), 7521, and those dual layers of protection

unconstitutionally constrain the President’s removal power

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under the Supreme Court’s decision in Free Enterprise Fund v.

PCAOB, 561 U.S. 477, 492 (2010).

The government argues that we should decline to address

petitioners’ additional arguments and should do no more than

grant them relief based on Lucia. With regard to petitioners’

new argument that the dual layers of for-cause-removal

protections for ALJs are unconstitutional under Free

Enterprise, the government contends that we cannot consider

the argument because petitioners failed to raise it before the

agency. If we were to reach the merits of that issue, the

government submits that we should adopt a narrowing

construction of one of the applicable layers of removal

protections, see 5 U.S.C. § 7521, to avoid serious constitutional

concerns. Petitioners, for their part, urge us to reject the

government’s proposed narrowing construction and declare the

dual for-cause-removal protections unconstitutional.

Thus, no party takes the position that the dual protections

would be valid under Free Enterprise without adopting the

government’s narrowing construction. Yet Free Enterprise left

open whether its holding applies to the dual layers of for-cause

protections for ALJs. See Free Enterprise Fund, 561 U.S. at

507 n.10; see also Lucia, 138 S. Ct. at 2060–61 (Breyer, J.,

concurring in the judgment in part and dissenting in part). To

ensure full consideration of that issue, we requested

supplemental briefing from the parties and appointed an amicus

curiae to argue that the dual layers of for-cause protections for

the Department’s ALJs are constitutional even if the

government’s narrowing construction were rejected. * In the

supplemental briefing, the government reiterated and

*

The court thanks court-appointed amicus curiae Pratik A.

Shah, aided by Z.W. Julius Chen and Rachel Bayefsky, for their

assistance in presenting this case.

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elaborated on its view that petitioners’ forfeiture of that issue

before the agency means that we cannot consider it.

We are ultimately persuaded by the government’s position

in that regard: petitioners did not raise the dual for-cause-

removal issue before the agency, and we are powerless to

excuse the forfeiture. We also decline to address the other

additional arguments petitioners ask us to consider, except we

reject their contention that the Department’s ALJs are principal

officers. Petitioners of course remain free to raise any of the

unaddressed arguments in the proceedings on remand.

II.

We begin with petitioners’ argument that the dual layers

of for-cause-removal protections for the Department’s ALJs

unconstitutionally limit the President’s removal power under

Free Enterprise. As the government has maintained from the

outset, petitioners did not raise that issue before the ALJ or the

Judicial Officer. The argument thus was forfeited before the

agency. Petitioners ask us to excuse the forfeiture and address

the argument because it presents a structural constitutional

objection. See, e.g., Freytag v. Commissioner, 501 U.S. 868,

878–79 (1991). We have no power to do so. Petitioners’

argument is subject to a mandatory, non-excusable, issue-

exhaustion requirement imposed by statute, and we therefore

cannot consider the claim.

By way of overview, our analysis proceeds as follows.

The statute governing judicial review of the Department’s

adjudications expressly requires exhaustion of “all

administrative appeal procedures established by the [agency].”

7 U.S.C. § 6912(e). That provision imposes a mandatory

exhaustion rule, such that a court cannot excuse a party’s

failure to exhaust, no matter the reason. And one of the

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“administrative appeal procedures” the Secretary has

established is a requirement to raise each issue in an appeal

before the Judicial Officer. The upshot is that the statute and

regulatory procedures require litigants to exhaust issues before

the agency and forbid us from excusing any failure to do so.

We thus lack the power to consider petitioners’ unexhausted

argument that, under Free Enterprise, the Department’s ALJs

are unduly insulated from the President’s authority to remove

them from office.

First, section 6912(e) establishes a mandatory exhaustion

requirement, leaving courts with no room to excuse a party’s

failure to exhaust. As the Supreme Court has recently made

clear, “courts have a role in creating exceptions” to a statutory

exhaustion provision “only if Congress wants them to.” Ross

v. Blake, 136 S. Ct. 1850, 1857 (2016). “For that reason,

mandatory exhaustion statutes . . . establish mandatory

exhaustion regimes, foreclosing judicial discretion” to excuse

the failure to exhaust, id., even under “standard administrative-

law exceptions” such as futility or hardship, id. at 1858 n.2.

Although judge-made exceptions of that kind are available in

the case of a judge-made exhaustion obligation, when an

exhaustion requirement is imposed by statute, the only question

is whether Congress intended any “limits on a [litigant’s]

obligation to exhaust.” Id. at 1856.

Congress did not intend any such limits under section

6912(e). The Supreme Court’s decision in Ross makes that

clear. Ross considered the Prison Litigation Reform Act’s

exhaustion requirement, which provides in relevant part that

“[n]o action shall be brought with respect to prison

conditions . . . by a prisoner . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C.

§ 1997e(a). The Court concluded that the statute’s “mandatory

language means a court may not excuse a failure to exhaust.”

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Ross, 136 S. Ct. at 1856. The sole exception, the Court noted,

would be if a prisoner could show, per the terms of the statute

itself, that administrative remedies were not “available.” Id. at

1858–59.

The language of section 6912(e) is equally mandatory and

equally “rigorous.” Id. at 1857. Just as section 1997e(a) states

that “[n]o action shall be brought . . . until” administrative

remedies are exhausted, section 6912(e) provides that, “before

[a] person may bring an action,” she “shall exhaust all

administrative appeal procedures established by the Secretary.”

If section 1997e(a) admits of no exception (other than the

textual qualifier that remedies must be “available”), then

section 6912(e) too admits of no exception. Indeed, we have

already stated that “the language of [section] 6912(e) is very

similar to” section 1997e(a). Munsell v. USDA, 509 F.3d 572,

580 (D.C. Cir. 2007). In Munsell, we held that section 6912(e)

imposes a “mandatory, but nonjurisdictional [exhaustion]

requirement,” id. at 581, including for “constitutional claims,”

id. at 592. Although we had no occasion to decide whether

section 6912(e)’s exhaustion rule could be subject to any court-

made exception, see id. at 579, the answer must be no after

Ross.

According to petitioners, Munsell’s statement that section

6912(e) is “nonjurisdictional” means that courts retain the

ability to excuse a failure to exhaust. That is incorrect. The

Supreme Court’s intervening decision in Ross clarified that

even nonjurisdictional exhaustion requirements—such as

sections 1997e(a) or 6912(e)—forbid judges from excusing

non-exhaustion. To be clear, there is still a material difference

between jurisdictional exhaustion requirements and

nonjurisdictional, mandatory requirements. A court must

enforce a jurisdictional requirement even if no party raises the

failure to exhaust. See Union Pac. R.R. Co. v. Bhd. of

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Locomotive Eng’rs, 558 U.S. 67, 82 (2009). By contrast, a

nonjurisdictional, mandatory exhaustion requirement functions

as an affirmative defense, and thus can be waived or forfeited

by the government’s failure to raise it. See id.; Jones v. Bock,

549 U.S. 199, 212 (2007). But if the government raises the

exhaustion requirement, the court must enforce it. That is the

case here.

Petitioners also claim that Munsell recognized a futility

exception to section 6912(e)’s exhaustion mandate. In

disposing of the appellant’s claim in Munsell, the court stated

that, because “the complaint and affidavits [could not]

reasonably be construed to indicate that it would have been

futile for Munsell . . . to pursue their administrative appeals on

their constitutional claims . . . , [Munsell’s] failure to exhaust

their administrative remedies is dispositive.” 509 F.3d at 592.

That statement, however, only assumed the existence of a

futility exception without deciding the matter, and offered no

reasoning or precedent justifying the assumption. See id.

Elsewhere in the opinion, the court stated that it had no “need

[to] decide whether the ‘well established exemptions’ to

nonjurisdictional exhaustion requirements apply to § 6912(e).”

Id. at 579 (quoting Woodford v. Ngo, 548 U.S. 81, 126 (2006)

(Breyer, J., concurring in the judgment)). Munsell thus does

not stand in the way of our conclusion that section 6912(e)

leaves no latitude for judges to excuse non-exhaustion. And

Ross compels that conclusion.

Second, section 6912(e)’s non-excusable exhaustion

requirement includes a requirement to raise an issue before the

Judicial Officer in order to preserve it for judicial review. In

Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held

that section 1997e(a) (the exhaustion provision considered in

Ross) requires “proper exhaustion”—i.e., “using all steps that

the agency holds out, and doing so properly (so that the agency

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addresses the issue on the merits).” Id. at 90 (internal quotation

marks omitted). The Court explained: “Proper exhaustion

demands compliance with an agency’s deadlines and other

critical procedural rules because no adjudicative system can

function effectively without imposing some orderly structure

on the course of its proceedings.” Id. at 90–91. The Court

specifically contemplated that agency issue-preservation rules

fit within the requirements for “proper exhaustion,” reasoning

that “courts should not topple over administrative decisions

unless the administrative body not only has erred, but has erred

against objection made at the time appropriate under its

practice.” Id. at 90 (internal quotation marks omitted); see id.

(proper exhaustion enables an agency to “address[] the issue on

the merits”). Again, we find no basis for distinguishing section

1997e(a), which requires exhausting “such administrative

remedies as are available,” from the statute at issue here, which

requires exhausting “administrative appeal procedures.” If

anything, the case for proper exhaustion is even stronger with

section 6912(e), which does not require that administrative

appeal procedures be “available.”

Several Department regulations, considered in

combination, establish the requirement to preserve individual

issues before the Judicial Officer. Cf. Sims v. Apfel, 530 U.S.

103, 108 (2000) (“[I]t is common for an agency’s regulations

to require issue exhaustion in administrative appeals.”). To

begin with, 7 C.F.R. § 1.145(a) requires that “[e]ach issue set

forth in the appeal petition [to the Judicial Officer] and the

arguments regarding each issue . . . shall be plainly and

concisely stated.” Section 1.145(b) then allows other parties to

the proceeding to raise “any relevant issue . . . not presented in

the appeal petition.” Id. § 1.145(b). And section 1.145(e)

states that the “[a]rgument to be heard on appeal, whether oral

or on brief, shall be limited to the issues raised in the appeal or

in the response to the appeal.” Id. § 1.145(e). The regulations

13

link those requirements for proper exhaustion to judicial review

by conditioning “judicial review” on bringing an appeal before

the Judicial Officer. Id. §§ 1.139, 1.142(c)(4).

Together, those regulations require that all arguments be

timely presented to the Judicial Officer, and they empower her

to impose forfeiture as to arguments not timely presented.

Thus, if a party raises a new issue at oral argument before the

Judicial Officer, she may rule against the party on forfeiture

grounds, even if the forfeited argument makes clear that the

ALJ’s decision is erroneous.

Our consideration of unpreserved issues would frustrate

that scheme. In Woodford, the Supreme Court held that raising

issues in an untimely administrative appeal was not proper

exhaustion and thus did not preserve those issues for judicial

review. The forfeiture here is even more pronounced, for

petitioners never gave the Judicial Officer any opportunity to

consider the issue they now seek to press. On deferential

review under the APA, see 5 U.S.C. § 706, we could not

conclude that a decision by the Judicial Officer was arbitrary

and capricious in failing to identify, raise, and resolve sua

sponte an issue never presented to her. Put differently, “[i]f a

party flouts [agency] regulation[s] by failing to raise with the

[agency] an issue that the party asserts in court, the court

generally has no basis for ‘setting aside’ the [agency’s] order

(even assuming the administrative law judge erred).” Island

Creek Coal Co. v. Bryan, 937 F.3d 738, 750 (6th Cir. 2019)

(quoting 33 U.S.C. § 921(c)). Read against section 6912(e) and

the background rule of proper exhaustion, the Department’s

regulations thus required petitioners to exhaust specific issues

before the Judicial Officer as a prerequisite to judicial review.

Our court has interpreted similar sets of regulations to

require petitioners to “afford [an agency] an opportunity to pass

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on [a particular issue] before seeking judicial review.”

Vermont Dep’t of Pub. Serv. v. United States, 684 F.3d 149,

157 (D.C. Cir. 2012). In Vermont, we considered Nuclear

Regulatory Commission regulations obligating parties to

(i) petition for Commission review “before seeking judicial

review of an agency action” and (ii) provide a “concise

statement why in the petitioner’s view the [challenged] action

is erroneous.” Id. (citing 10 C.F.R. §§ 2.1212, 2.341(b)(2)(iii)).

Vermont relied on an earlier decision from our court,

Environmentel, LLC v. FCC, which had also interpreted

materially identical regulations to impose an issue-exhaustion

requirement. See 661 F.3d 80, 83–84 (D.C. Cir. 2011) (citing

47 C.F.R. § 1.115(a), 1.115(b)(1)). To the same effect, the

Supreme Court’s decision in Sims v. Apfel cited a rule requiring

petitioners to the Labor Benefits Review Board to “list[] the

specific issues to be considered on appeal” as a typical example

of “an agency’s regulations [that] require issue exhaustion in

administrative appeals.” 530 U.S. at 108 (quoting 20 C.F.R.

§ 802.211(a)). These precedents make clear that the

requirement in 7 C.F.R. § 1.145(a) to set forth “each issue . . .

plainly and concisely” in an appeal petition to the Judicial

Officer, together with the associated regulations enumerated

above, mandate issue exhaustion.

Summing up the above two points, section 6912(e)

requires parties to properly “exhaust all administrative appeal

procedures established by the Secretary,” and one such

“administrative appeal procedure” is a requirement that parties

raise an issue before the Judicial Officer. Section 6912(e) thus

incorporates the Department of Agriculture’s internal appeal

rules, which have included a requirement to raise individual

issues before the Judicial Officer since well before the statute’s

enactment.

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To be sure, 7 C.F.R. § 1.145(e) allows the Judicial Officer

to determine, sua sponte, “that additional issues should be

argued” to her even if not raised by the parties. But that

regulatory grant of discretion to the Judicial Officer does not

confer like authority on us. As explained, if the Judicial Officer

had rejected an argument on the ground that it was raised to her

out of time—thereby declining to exercise her discretion to

excuse a forfeiture—we could not set aside her decision as

arbitrary just because we found the forfeited argument

persuasive on the merits. And we certainly could not conclude

that the Judicial Officer acted arbitrarily in failing to identify

and consider an issue never presented to her. As a result, the

fact that the Judicial Officer could have considered the dual for-

cause-removal issue below, despite petitioners’ failure to raise

it, does not mean that we can similarly choose to address it.

It follows that we have no discretion to excuse petitioners’

failure to raise before the agency their dual for-cause-removal

claim. The statute leaves no room for us to disregard

petitioners’ noncompliance with its mandatory obligation to

exhaust the agency’s administrative-appeal procedures,

including the regulations’ issue-exhaustion requirement.

Petitioners, though, can press their unexhausted claim in the

proceedings before the agency on remand.

Our dissenting colleague agrees that, insofar as the

agency’s regulations require issue exhaustion, the statute

incorporates that requirement as a mandatory one. Dissenting

Op. 6. In her view, however, the regulations do not establish

an issue-exhaustion requirement. But the pertinent regulations,

as explained, see pp. 13–14, supra, are materially

indistinguishable from ones held by our court to require issue

exhaustion. See Vermont, 684 F.3d at 157; Environmentel, 661

F.3d at 84; see also Sims, 530 U.S. at 108 (citing 20 C.F.R.

§ 802.211(a)).

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Our colleague further submits that we should forgo

requiring issue exhaustion for either of two reasons: (i) the

unexhausted dual for-cause-removal claim involves a

structural constitutional issue, or (ii) judicial estoppel

principles weigh against enforcing issue exhaustion in the

circumstances of this case. Dissenting Op. 10–16. The statute

and incorporated regulations, however, do not contemplate any

exception to the mandatory issue-exhaustion requirement for

either of those reasons. And there is no “judicial discretion” to

consider an unexhausted claim when facing a “mandatory

exhaustion regime[].” Ross, 136 S. Ct. at 1857. As a result,

even if the Supreme Court elected as a matter of judicial

discretion to consider an unpreserved structural constitutional

claim in Freytag v. Commissioner, 501 U.S. at 878–79, the

kind of discretion exercised in Freytag is unavailable when, as

here, a statute establishes a mandatory issue-exhaustion

requirement. No such exhaustion requirement was considered

in Freytag. And while our court considered an unexhausted

separation-of-powers issue in Noel Canning v. National Labor

Relations Board, 705 F.3d 490 (D.C. Cir. 2013), we did so

pursuant to an exception contained in the terms of the statutory

exhaustion requirement itself, id. at 497, not by forging our

own exception as a matter of judicial discretion.

With respect to judicial estoppel, because it too is a

creature of judicial discretion, see Moses v. Howard Univ.

Hosp., 606 F.3d 789, 797 (D.C. Cir. 2020), we doubt it can

overcome a statute’s mandatory exhaustion obligation. In any

event, our colleague’s basis for applying judicial estoppel falls

short. In her view, because a Department representative argued

before the Judicial Officer that he lacked authority to decide

constitutional challenges, the Department should be estopped

from contending that petitioners should have raised their dual

for-cause-removal claim to the Officer. Dissenting Op. 12–13.

17

But while a Department representative did argue to the Judicial

Officer that he lacked authority to decide constitutional claims,

the representative also clarified that constitutional claims

needed to be raised before the Officer to preserve them for

judicial review. Dep’t Resp. to Pet. Admin. Appeal, J.A. 247.

And in any event, the Judicial Officer denied the suggestion

that he lacked any authority to decide constitutional claims: he

considered (and rejected) a structural constitutional claim that

his appointment had been inconsistent with the Appointments

Clause. Joe Fleming, 76 Agric. Dec. at 538. Perhaps for that

reason, petitioners have not raised judicial estoppel as a basis

for us to reach the merits of their unexhausted dual for-cause-

removal claim.

We finally address our colleague’s suggestion that, if the

statute in fact incorporates an issue-exhaustion requirement, we

would be obligated to dismiss the petitions for review in their

entirety rather than only decline to consider the unexhausted

claim. Dissenting Op. 10. That notion appears to rest on the

language of the statute, which calls for exhaustion “before the

person may bring an action in . . . court.” 7 U.S.C. § 6912(e).

There is no reason to think, though, that a failure to exhaust as

to one claim precludes judicial review of any and all claims

(including ones for which the exhaustion requirement has been

met). For instance, in Environmentel, the relevant regulation

similarly required exhaustion as a “condition precedent to

judicial review of any [agency] action.” 661 F.3d at 84

(quoting 47 C.F.R. § 1.115(k)). And while we declined to

consider two issues that had not been properly exhausted, we

did not then dismiss the petition for review in its entirety:

instead, we otherwise reviewed the challenged order and

sustained it. Id. at 85–86. Here, we likewise cannot consider

petitioners’ unexhausted dual for-cause-removal claim, but we

remain free to consider any claims they properly exhausted in

the agency proceedings.

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III.

Petitioners preserved the remainder of their claims before

the agency, but they fare no better in terms of obtaining

additional relief from our court at this time.

Petitioners first argue that the Department’s ALJs are

principal officers, and that the steps the Secretary of

Agriculture has taken to redress the Lucia problem—namely,

ratifying ALJs’ appointments and administering new oaths of

office, Trimble, 77 Agric. Dec. 15, 17 (2018)—are insufficient

to allow any ALJ to hear petitioners’ case on remand. We

disagree. The ALJs are inferior officers who can be appointed

by department heads like the Secretary.

An officer of the United States is “inferior” for purposes

of the Appointments Clause if her “work is directed and

supervised at some level by” principal officers. Edmond v.

United States, 520 U.S. 651, 663 (1997). Under Edmond,

courts examine three factors in applying that test: (i) whether

the officer is subject to supervision and oversight by a principal

officer; (ii) whether the officer is subject to removal by a

principal officer; and (iii) whether the officer has final

decisionmaking authority. See id. at 664; Intercollegiate

Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1339

(D.C. Cir. 2012).

Applying those factors, we have little difficulty classifying

the Department’s ALJs as inferior officers. Although the ALJs

are not removable at will by a principal officer, the analysis

hardly ends there, see, e.g., Morrison v. Olson, 487 U.S. 654,

671–72 (1988), and the other factors point decidedly in favor

of inferior-officer status. The Department’s ALJs are subject

to substantial oversight by the Secretary. The ALJs must

19

follow the Secretary’s procedural and substantive regulations,

as in Edmond. See 520 U.S. at 664 (relying on principal

officer’s “administrative oversight” over Court of Criminal

Appeals Judges given his “responsibility to prescribe uniform

rules of procedure” and “formulate policies” for the Court

(internal quotation marks omitted)). And the ALJs’ decisions

may be appealed to the Judicial Officer, whom the Secretary

can remove at will. See 7 U.S.C. § 2204-2; 7 C.F.R. §§ 1.132,

2.12.

Petitioners contend that the Judicial Officer’s appellate

review is insufficient to demonstrate the ALJs’ inferior-officer

status unless the Judicial Officer is a principal officer, because,

petitioners say, an inferior officer’s decisions must be subject

to review by a principal officer. We do not decide whether the

Judicial Officer is a principal officer (see below), but we reject

petitioners’ argument regardless. It is inconsistent with

Intercollegiate, which found the officers at issue to be inferior

even though they could make significant decisions without

review by another officer. 684 F.3d at 1341–42. Moreover,

the Secretary (a principal officer) has considerable influence

over whether an ALJ’s decision becomes the final decision of

the agency. For one thing, the Secretary may, at his election,

step in and act as final appeals officer in any case. See 7 C.F.R.

§ 2.12. For another, the Secretary may remove the Judicial

Officer at will, providing the Secretary “a powerful tool for

control,” Edmond, 520 U.S. at 664. Indeed, the Supreme Court

has suggested that an officer who may be removed at will by

another officer is the latter’s “alter ego” for constitutional

purposes. See Free Enter. Fund v. PCAOB, 537 F.3d 667, 686

& n.1 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (collecting

cases), aff’d in part, rev’d in part and remanded, 561 U.S. 477

(2010). In short, the Department’s ALJs are inferior officers.

20

Petitioners separately make two other arguments. We

decline to consider either of them at this stage.

First, petitioners contend that the Judicial Officer is an

improperly appointed principal officer. There is no cause for

us to address that issue because the government represents that

the current Judicial Officer will be recused from these cases on

remand due to her prior service as the ALJ who entered the

underlying default orders against petitioners. If a different ALJ

rules against petitioners on remand and they wish to appeal, the

government assures us that their appeals will be heard by the

Secretary or another officer with properly delegated authority,

not the Judicial Officer. On that understanding, we see no need

to address petitioners’ challenge to the Judicial Officer’s

appointment.

Petitioners also advance a statutory argument, contending

that the agency lacks authority under the Horse Protection Act

to disqualify them from events and impose civil fines in the

same proceeding. We have no reason to address that argument

at this stage as it does not bear on the lawfulness of the

administrative process petitioners will undergo on remand. As

with any of their other unresolved claims, petitioners can press

it in the remaining proceedings.

* * * * *

For the foregoing reasons, we grant the petitions for

review, vacate the underlying orders, and remand to the agency

for further proceedings consistent with this opinion.

So ordered.

RAO, Circuit Judge, concurring in part and dissenting in

part: This appeal raises an important structural constitutional

question, namely whether administrative law judges, who are

Executive Branch officers exercising significant executive

power, can be insulated from the Chief Executive with two

layers of for-cause removal protection. The Constitution and

decisions of the Supreme Court provide a clear answer: such a

double layer of independence contravenes the separation of

powers and undermines the democratic accountability

promoted by vesting all executive power in the President.

Rather than reach this question, the majority goes to great

lengths to avoid it. In the majority’s view, this court is barred

from considering petitioners’ challenge until the agency

considers it first—despite the fact the agency has steadfastly

maintained it cannot consider structural constitutional

challenges until we reach them first. The court refuses to act

before the agency, while the agency refuses to act before the

court—trapping petitioners in an administrative-judicial hall of

mirrors. It would be one thing if the governing statute or

regulations compelled this result. They do not. It abdicates our

judicial responsibility to duck a properly presented and serious

constitutional challenge to the structure of administrative

adjudication. I would therefore reach the merits of the

petitioners’ challenge and hold the tenure protections for

administrative law judges unconstitutional.

I.

The proceedings in this case arose under the Horse

Protection Act, a statute administered by the U.S. Department

of Agriculture (“USDA” or “Department”) that is designed to

protect show horses from abusive trainers. See 15 U.S.C.

§§ 1821–1831. To impose civil penalties under the Act, the

USDA must first provide the accused with “notice and

opportunity for a hearing before the Secretary.” 15 U.S.C.

§ 1825(b)(1). The Secretary is not, however, required to

personally preside over each proceeding. Instead, agencies may

2

“appoint as many administrative law judges [“ALJs”] as are

necessary” to conduct the hearings required by statute. 5 U.S.C.

§ 3105. Once appointed by the Secretary, an ALJ has a high

degree of independence protected by two layers of for-cause

removal restrictions. The Secretary may remove an ALJ “only

for good cause established and determined by the Merit

Systems Protection Board [“MSPB”].” 5 U.S.C. § 7521(a).

And the members of the MSPB are removable by the President

“only for inefficiency, neglect of duty, or malfeasance in

office.” 5 U.S.C. § 1202(d).

In the case before us, the USDA filed complaints alleging

that petitioners “sored” Tennessee walking horses. Soring is a

practice that involves deliberately injuring horses to force them

to adopt a particular gait. The petitioners failed to answer the

complaints in time, so the ALJ entered default orders imposing

monetary sanctions and disqualifying the petitioners from

horse competitions for several years. The petitioners proceeded

to exhaust the available review procedures by appealing the

orders to the Judicial Officer—an official who performs

regulatory functions on behalf of the Secretary and reviews

orders issued by the agency’s ALJs. See 7 U.S.C. § 2204-2; 7

C.F.R. § 1.145. While the petitioners presented several

constitutional challenges to the appointment of the ALJ and the

Judicial Officer, they did not object to the ALJ’s removal

protections. The Judicial Officer, however, categorically

refused to consider any constitutional challenges to the ALJ

until a court addressed the merits of those challenges first. The

Judicial Officer then affirmed the ALJ’s orders.

The petitioners filed an appeal in this court. The appeal

was held in abeyance pending the Supreme Court’s resolution

of Lucia v. SEC, which held that the ALJs of the Securities and

Exchange Commission (“SEC”) are officers of the United

States who must be appointed in accordance with the

Appointments Clause. 138 S. Ct. 2044, 2055 (2018). See also

3

U.S. Const. art. II, § 2. No party disputes that under Lucia,

ALJs of the USDA are officers of the United States, and I agree

with the majority that these ALJs are inferior officers who must

be appointed by the President or the head of a department. Maj.

Op. 3 (remanding for “new administrative hearings before

validly appointed ALJs”). It follows that the ALJ presiding

below, who was hired by agency staff, was not constitutionally

appointed.

In addition to the Appointments Clause question resolved

by Lucia, the petitioners raise several other structural

constitutional challenges before this court. Most important for

our purposes, they argue that the two layers of for-cause tenure

protection insulating ALJs from removal are unconstitutional

under Free Enterprise Fund v. Public Company Accounting

Oversight Board. See 561 U.S. 477, 498 (2010) (holding that it

unconstitutionally infringes the President’s executive power to

insulate the Public Company Accounting Oversight Board

(“PCAOB”) with two layers of tenure protection). The USDA

asks that we vacate and remand in light of the Lucia error and

decline to reach the removal power issue; the petitioners, on the

other hand, ask that we decide the question rather than remand

to a decisionmaker who would still lack the constitutional

authority to preside. The agency maintains that petitioners

failed to exhaust their challenge to the removal protections

before the agency and should be barred from raising it in this

appeal. On the merits, the government’s only defense of the

ALJ’s double layer of tenure protections is that the term “good

cause” can be construed broadly to avoid the constitutional

question and to allow for a measure of presidential control that

satisfies constitutional requirements.

After the parties briefed and argued the additional

questions raised by the petitioners, this panel appointed an

amicus to defend the position that, assuming we reject the

government’s construction of the “good cause” standard set out

4

in 5 U.S.C. § 7521(a), the double layer of for-cause protection

is “nonetheless not ‘incompatible with the Constitution’s

separation of powers’ as applied to administrative law judges

within the Department of Agriculture.” Order at 1, Fleming v.

Dept. of Agric., No. 17-1246 (D.C. Cir. Dec. 6, 2019) (quoting

Free Enterprise Fund, 561 U.S. at 498). The court ordered a

new round of briefing, again heard oral argument, and has

received more than forty supplemental filings.

The majority now bends over backward to avoid the

constitutional challenge to the ALJ removal protections. For

the reasons discussed below, I would reach the question and

hold the double layer of for-cause removal protection

unconstitutional.

II.

Petitioners failed to raise their constitutional challenge to

the ALJ’s independence before the agency. The majority holds

that the petitioners may not raise their challenge to the double

for-cause removal protections on appeal until they have

exhausted the issue by presenting it to the agency. I disagree:

no statute, nor any regulation, mandates issue exhaustion. The

relevant statute, 7 U.S.C. § 6912(e), requires that parties

exhaust all available procedures, but nothing in its text requires

that a party exhaust specific issues by presenting them to the

agency. And the relevant regulation, 7 C.F.R. § 1.145, does not

bar the petitioners’ challenge because it similarly does not

mandate issue exhaustion. Moreover, in light of the importance

of judicial review of structural constitutional issues, our

precedents strongly favor, if not require, reaching such issues

even when not exhausted before an agency. Finally, the USDA

should be estopped from raising its exhaustion argument.

Before the agency’s adjudicators, the USDA successfully

argued that constitutional challenges to the ALJ must first be

decided by the courts. The agency should not now be able to

argue the opposite, namely that this constitutional issue must

5

first be decided by the agency. Exhaustion is simply not

required here and therefore I would reach petitioners’

substantial constitutional challenge to the ALJ removal

protections.

A.

The USDA’s exhaustion statute provides that “a person

shall exhaust all administrative appeal procedures established

by the Secretary or required by law before the person may bring

an action in a court of competent jurisdiction against … the

Department.” 7 U.S.C. § 6912(e). Two aspects of this statute

are particularly salient. First, we have held “that 7 U.S.C.

§ 6912(e) does not impose a jurisdictional exhaustion

requirement” because it does “not contain the type of sweeping

and direct language that would indicate a jurisdictional bar.”

Munsell v. Dep’t of Agric., 509 F.3d 572, 575, 580 (D.C. Cir.

2007) (quoting Ali v. Dist. of Columbia, 278 F.3d 1, 5–6 (D.C.

Cir. 2002)). Second, Section 6912(e) does not directly require

parties to exhaust specific issues by presenting them to an

agency before raising them in court—the statute requires only

that a party exhaust available “appeal procedures.”

This language reflects a well-established distinction in

administrative law between issue exhaustion, which requires

that a party raise specific arguments, and exhaustion of

remedies, which requires that a party seek review after

exhausting the available agency procedures. Sims v. Apfel, 530

U.S. 103, 107 (2000). Section 6912(e) provides only for

exhaustion of remedies, which is in sharp contrast to numerous

statutes in which Congress has explicitly required a party to

exhaust issues before an agency as a prerequisite to bringing a

claim in court.1 Section 6912(e) imposes no freestanding issue

1

See, e.g., 15 U.S.C. § 717r(b) (“No objection to the order of the

[Federal Energy Regulatory] Commission shall be considered by the

court unless such objection shall have been urged before the

6

exhaustion requirement for petitioners to present their removal

challenge to the agency.

Because the statute alone cannot support issue exhaustion,

the majority must maintain that the statute bars our review by

“incorporat[ing]” issue-exhaustion requirements found in the

agency’s regulations. Maj. Op. 14. I agree with the majority

that issue exhaustion could be required under Section 6912(e),

but only if the agency’s regulations require such exhaustion.

See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (holding that a

statutory exhaustion requirement similar to Section 6912(e)

requires “compliance with an agency’s deadlines and other

critical procedural rules”); Island Creek v. Bryan, 937 F.3d

738, 747 (6th Cir. 2019) (explaining that under a similar

statute, issue exhaustion is required only if “an agency’s rules

so require”); see also Sims, 530 U.S. at 113 (O’Connor, J.,

concurring in part) (emphasizing that issue exhaustion is

required when “a specific … regulation requir[es]” it, but not

when a regulation “affirmatively suggest[s] that specific issues

need not be raised”). The Department cannot prevail on

exhaustion because its regulations do not mandate issue

exhaustion.

The majority maintains that 7 C.F.R. § 1.145 requires that

parties appeal specific issues to the Judicial Officer. Maj. Op.

8, 11–12. The plain meaning of this regulation, however, does

Commission in the application for rehearing unless there is

reasonable ground for failure so to do.”); see also 29 U.S.C. § 160(e)

(“No objection that has not been urged before the [National Labor

Relations] Board, its member, agent, or agency, shall be considered

by the court, unless the failure or neglect to urge such objection shall

be excused because of extraordinary circumstances.”); 30 U.S.C.

§ 816(a) (“No objection that has not been urged before the [Federal

Mine Safety and Health Review] Commission shall be considered by

the court, unless the failure or neglect to urge such objection shall be

excused because of extraordinary circumstances.”).

7

not include issue exhaustion as a requirement for raising issues

on judicial appeal. Rather, it establishes a series of ministerial

requirements for administrative appeals to the Judicial Officer.

The majority primarily relies on 7 C.F.R. § 1.145(e), which

states that “[a]rgument to be heard on appeal, whether oral or

on brief, shall be limited to the issues raised in the appeal or in

the response to the appeal, except … if the Judicial Officer

determines that additional issues should be argued.” 7 C.F.R.

§ 1.145(e). Section 1.145(e) is entirely silent with respect to

judicial review—it states only that the “[s]cope of argument”

before the Judicial Officer will be limited to issues raised on

the parties’ appeal to the Judicial Officer. Moreover, Section

1.145(e) does not require issue exhaustion, because it explicitly

provides that the Judicial Officer may allow unraised issues to

be argued.

Other subparts of the regulation impose various procedural

rules for the administrative appeal, but no exhaustion

requirement. For instance, Section 1.145(a) requires that

“[e]ach issue set forth in the appeal petition [to the Judicial

Officer] and the arguments regarding each issue … shall be

plainly and concisely stated.” 7 C.F.R. § 1.145(a). Section

1.145(b) provides for the timing and details of the response to

the petition. The other provisions address such requirements as

the format and timing of oral argument; appeals submitted for

decision on the briefs; transmittal of briefs; and transcription of

testimony. 7 C.F.R. § 1.145(c), (d), (h). The regulation simply

does not create a mandatory issue exhaustion requirement, and

the majority’s contrary conclusion cannot be supported by the

plain meaning of the regulation. Put another way, nothing in

the regulation forecloses this court from excusing a failure to

exhaust or from applying standard exceptions to exhaustion.

Cf. Ross v. Blake, 136 S. Ct. 1850, 1858 n.2 (2016) (noting that

some statutory exhaustion provisions “might be best read to

give judges the leeway to create exceptions or to … incorporate

8

standard administrative-law exceptions” and that “[t]he

question in all cases is one of statutory construction”).

The majority largely ignores the non-mandatory terms in

which 7 C.F.R. § 1.145(e) is written and instead emphasizes

that the regulations “empower” the Judicial Officer “to impose

forfeiture.” Maj. Op. 13. Yet the majority fails to explain why

such a power would be an “appeal procedure[]” that requires

exhaustion under Section 6912(e). Like courts, agency

adjudicators have the power to reject arguments that are not

raised. See, e.g., In re Laurel Baye Healthcare of Lake Lanier,

352 NLRB 179 at *1 n.2 (2008), vacated on other grounds,

Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d

469 (D.C. Cir. 2009) (“The respondent waived this argument

by failing to raise it before the [administrative law] judge.”).

Nonetheless, the Supreme Court has concluded some agency

regulations “do not require issue exhaustion.” Sims, 530 U.S.

at 108. Thus, it is not enough that the agency has the power to

rely on forfeiture. The majority must demonstrate that the

agency’s regulations require parties to affirmatively raise each

argument they wish to preserve for judicial review. 7 C.F.R.

§ 1.145 does not. Instead the regulation explicitly states that a

party may prevail on an argument regardless of whether it was

raised.

The cases the majority relies upon cannot support its claim

that the USDA’s regulation requires issue exhaustion. Maj. Op.

13–14. For instance, unlike this case, Environmentel, LLC v.

FCC, 661 F.3d 80 (D.C. Cir. 2011), involved a statute with a

mandatory issue exhaustion requirement. See 47 U.S.C.

§ 405(a) (“The filing of a petition for reconsideration” shall be

“a condition precedent to judicial review … where the party

seeking such review … relies on questions of fact or law upon

which the Commission, or designated authority within the

Commission, has been afforded no opportunity to pass.”). In

light of the explicit statutory exhaustion requirement, the court

9

easily concluded that “the full FCC must have the opportunity

to review all cases and all aspects of those cases before parties

may exercise their statutory right to appeal to this Court.”

Environmentel, 661 F.3d at 84.

Nor can the majority rely on Vermont Department of

Public Service v. United States, because the court in that case

did not hold that the regulations at issue imposed mandatory

exhaustion. 684 F.3d 149 (D.C. Cir. 2012). Rather, it analyzed

the issue under judge-made exhaustion doctrines, which give

the court discretion to excuse failure to exhaust. See id. at 159

(Although a court “may, in its discretion, excuse exhaustion,”

the court “find[s] no such exculpatory circumstances here.”)

(quoting Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247

(D.C. Cir. 2004)) (cleaned up).2 It is the majority, then, that

departs from precedent by disclaiming our discretion to excuse

failures to exhaust.

Furthermore, when an agency’s regulations are the basis

for issue exhaustion, rather than the statute itself, arguments

must be raised before the agency in the manner “appropriate

under [the agency’s] practice.” Woodford, 548 U.S. at 90

(quoting United States v. L.A. Tucker Truck Lines, Inc., 344

U.S. 33, 37 (1952)) (emphasis omitted). In light of the USDA’s

stated policy not to consider structural constitutional

challenges to ALJ decisionmaking authority absent a court

ruling, 7 C.F.R. § 1.145 cannot require exhaustion of this issue.

See J.A. 372–74. Where, as here, an agency chooses not to

consider a certain class of claims, the agency’s procedures

2

The majority’s reliance on dicta in Sims also does not support

reading 7 C.F.R. § 1.145(e) to require exhaustion. Maj. Op. 14. In

Sims, the Court merely mentioned a different regulatory provision,

20 C.F.R. § 802.211(a), in passing as an example of issue exhaustion.

530 U.S. at 108. But Sims did not have occasion to interpret that

regulation or the one at issue in this case.

10

cannot be said to require that parties exhaust those claims. To

require exhaustion in such a case as a prerequisite for judicial

review would be inconsistent with the underlying justifications

for issue exhaustion, namely, giving the agency the chance to

correct its mistakes and making judicial review more efficient.

Woodford, 548 U.S. at 89.

Finally, the majority is unwilling to accept the full

consequences of its conclusion regarding issue exhaustion.

Section 6912(e) imposes a mandatory exhaustion of remedies

requirement—the failure to exhaust “appeal procedures” bars a

judicial action against the Department. See 7 U.S.C. § 6912(e)

(“[A] person shall exhaust all administrative appeal procedures

… before the person may bring an action in a court of

competent jurisdiction.”). Under the majority’s determination

that the agency’s appeal procedures have not been exhausted,

petitioners should be barred from bringing this entire “action,”

not merely the unexhausted claim. See Maj. Op. 17. The

majority cannot explain how the plain meaning of the statute

allows petitioners to maintain part of their suit despite failing

to exhaust the regulatory appeal procedures. The majority finds

the statute unyielding—but then carves out exceptions to reach

some, but not all, of petitioners’ constitutional claims.

B.

The majority’s resolution also cannot be squared with the

Supreme Court’s repeated determination that structural

constitutional challenges are an exception to general principles

of exhaustion.3 The failure to raise such important issues before

3

The majority notably does not rely on judge-made exhaustion

doctrines, which may be available “even in the absence of a statute

or regulation.” Sims, 530 U.S. at 109. By forcing issue exhaustion

into a statute and regulation that do not require it, the majority avoids

having to determine whether the exceptions for structural

constitutional issues are available. Ross, 136 S. Ct. at 1857 (noting

11

an agency does not bar our review. Challenges to the double

layer of for-cause removal protection go to the constitutional

legitimacy and accountability of agency adjudication. See Free

Enterprise Fund, 561 U.S. at 496 (explaining that a double for-

cause removal limitation “impair[s]” the President’s “ability to

execute the laws by holding his subordinates accountable for

their conduct”) (cleaned up). Because petitioners’ claim here is

a structural constitutional challenge, it can “be considered on

appeal whether or not [it was] ruled upon below.” Freytag v.

Comm’r, 501 U.S. 868, 879 (1991); see also Glidden Co. v.

Zdanok, 370 U.S. 530, 536 (1962) (noting “the strong interest

of the federal judiciary in maintaining the constitutional plan

of separation of powers”). As in Freytag, “we are faced with a

constitutional challenge that is neither frivolous nor

disingenuous,” and the problem with two layers of for-cause

removal protection “goes to the validity” of the ALJ

adjudication in this case. 501 U.S. at 879.

Similarly, petitioners’ challenge “implicate[s]

fundamental separation of powers concerns.” Noel Canning v.

NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013), aff’d, 573 U.S. 513

(2014). In Noel Canning, this court excused exhaustion and

reached the constitutional question, id. at 496–98, even though

the Supreme Court had previously held that the relevant statute

imposes a jurisdictional exhaustion requirement that deprives

“the Court of Appeals [of] jurisdiction to review objections that

were not urged before the Board,” Woelke & Romero Framing,

Inc. v. NLRB, 456 U.S. 645, 666 (1982). Moreover, in PHH

Corporation v. CFPB, the en banc court explained that “we

cannot avoid the constitutional question” regarding the

removal protections for the Director of the Consumer Financial

that judge-made exhaustion requirements “remain amenable to

judge-made exceptions”); see also Maj. Op. 9 (“[E]xceptions of that

kind are available in the case of a judge-made exhaustion

obligation.”).

12

Protection Bureau (“CFPB”), because a remand to the CFPB

for further action “necessitate[d] a decision on the

constitutionality of the Director’s for-cause removal

protection.” 881 F.3d 75, 83 (D.C. Cir. 2018) (en banc),

abrogated by Seila Law v. CFPB, 140 S. Ct. 2183 (2020).

Our cases reinforce the importance of resolving

constitutional questions in the circumstances of this case, in

which petitioners have raised serious structural constitutional

claims regarding the accountability of the ALJ adjudicating

their case. The issues are pure questions of law that will not

benefit from further development by the agency. Moreover, the

majority’s remedy requires a remand to the agency, which

means that like in PHH we cannot avoid petitioners’

constitutional claims about the adjudicator they will face on

remand. Therefore, it is both necessary and appropriate for us

to reach petitioners’ constitutional challenge to the ALJ’s

double layer of for-cause removal protection.

C.

Although I think neither the statute nor the regulations

require issue exhaustion, even assuming with the majority that

USDA’s regulations create a mandatory issue exhaustion

requirement, the agency should be estopped from prevailing on

its exhaustion argument before this court. In this case, the

petitioners are subject to regulatory requirements written,

enforced, and adjudicated by the USDA; but the USDA insisted

throughout the proceedings that constitutional claims must be

brought first in this court. Now the agency says constitutional

claims must be brought first before the agency. I would not

allow the agency to duck and weave its way out of meaningful

judicial review.

In an attempt to persuade the Judicial Officer not to reach

several constitutional challenges to the ALJ’s authority

(challenges unrelated to the removal question now at issue), the

13

USDA argued below that its Rules of Practice—which include

7 C.F.R. § 1.145—do not apply to constitutional objections.

The agency cited 7 C.F.R. § 1.131, which provides that the

USDA’s Rules of Practice apply only to “adjudicatory

proceedings” arising under several dozen specifically

enumerated statutes. According to the Department’s brief

before the Department’s Judicial Officer, constitutional

objections are not subject to the Rules of Practice because they

do not arise under any of the enumerated statutes. The

Department’s position could not have been clearer: “[A]

constitutional challenge against the ALJs and the Judicial

Officer is not part of an ‘adjudicatory proceeding’ governed by

the Rules of Practice.” J.A. 247. Moreover, the Department

maintained that “[t]he Department’s ALJs and the Judicial

Officer should continue to preside over administrative

proceedings … unless and until there is a final determination

by the federal courts that they lack the authority to do so.” J.A.

243.

Indeed, the Judicial Officer adopted this exact reasoning

and language, ruling that “administrative law judges should

continue to preside over administrative proceedings … unless

and until there is a final determination by the federal courts that

they lack the authority to do so.” J.A. 372. After successfully

making its argument below, the Department does a 180 and

argues to this court—and the majority agrees—that the

agency’s regulations require parties to exhaust structural

constitutional challenges before the agency.

The government should be estopped from raising its

exhaustion argument. As the majority and I agree, Section 6912

is a mandatory, but non-jurisdictional, exhaustion of remedies

requirement. For us to enforce such a requirement, it must be

raised by a party. Maj. Op. 10–11. But the government should

not be permitted to raise its exhaustion argument. Judicial

estoppel of the agency’s exhaustion argument is appropriate to

14

prevent the agency “from prevailing in one phase of a case on

an argument and then relying on a contradictory argument to

prevail in another phase.” New Hampshire v. Maine, 532 U.S.

742, 749 (2001) (citation omitted); see also Temple Univ.

Hosp., Inc. v. NLRB, 929 F.3d 729, 734 (D.C. Cir. 2019)

(“[M]ost circuits have applied judicial estoppel in cases where

the first proceeding was before an agency … and no circuit has

declined to do so.”) (citations omitted). Since all agree that

there is no jurisdictional exhaustion requirement the court must

enforce sua sponte, even a mandatory exhaustion requirement

does not prohibit us from reaching the merits when the

government is estopped from invoking exhaustion. Contrary to

the majority’s contention, Maj. Op. 16, judicial estoppel is

precisely the kind of exception that even a mandatory

exhaustion statute contemplates because such a statute requires

exhaustion to be properly invoked by a party.

Judicial estoppel “is an equitable doctrine invoked by a

court at its discretion.” Moses v. Howard Univ. Hosp., 606 F.3d

789, 797 (D.C. Cir. 2010) (quoting Maine, 532 U.S. at 750).

“[T]he circumstances under which judicial estoppel may

appropriately be invoked are … not reducible to any general

formulation of principle,” Maine, 532 U.S. at 750 (citation

omitted), but courts often consider three factors: (1) whether

the later position is “clearly inconsistent” with the earlier

position; (2) “whether the party has succeeded in persuading a

court to accept that party’s earlier position”; and (3) “whether

the party seeking to assert an inconsistent position would

derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped.” Id. at 750–51 (cleaned up).

These three factors are not “inflexible prerequisites or an

exhaustive formula,” and other “considerations may inform the

doctrine’s application.” Id. at 751.

The circumstances here amply meet these factors. First,

the agency’s position before this court that petitioners should

15

have exhausted their ALJ removal argument before the agency

is “clearly inconsistent” with its initial position that such

structural constitutional questions must be first raised in court.

J.A. 247. Second, the agency ultimately succeeded in

persuading the Judicial Officer to decline to hear petitioners’

constitutional challenge to the ALJ, and instead to proclaim

that “challenges to the constitutionality of the [ALJs] and the

administrative process should be raised in an appropriate

United States Court of Appeals.” J.A. 372. Finally, the agency

would “derive an unfair advantage” if it is allowed to benefit

from its change of position.4 Maine, 532 U.S. at 751. Shifting

interpretations of agency regulations always carry the risk of

“creat[ing] unfair surprise or upset[ing] reliance interests.”

Kisor v. Wilkie, 139 S. Ct. 2400, 2421 (2019); see also Encino

Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016)

(emphasizing the danger of unsettling reliance interests when

an agency reverses position).

It would be contrary to basic principles of fairness to

permit the government to prevail before this court by invoking

conflicting interpretations of a regulation at different phases of

the same litigation. 5 Our equitable discretion would be well

4

In a similar context, the Sixth Circuit invoked judicial estoppel and

permitted a suit to go forward in the district court because an agency

had previously prevailed by convincing the MSPB that the suit could

go forward only in the district court. Valentine-Johnson v. Roche,

386 F.3d 800, 809–11 (6th Cir. 2004). The court refused to let the

agency “ma[k]e a 180-degree change in its position” by arguing that

the suit could not proceed in district court because the plaintiff had

failed to exhaust her administrative remedies. Id. at 810.

5

After the agency argued that the Rules of Practice do not apply to

constitutional arguments, it commented that parties should

nonetheless preserve such arguments. J.A. 247 (“[I]t is well settled

that constitutional issues should be raised in administrative

proceedings, thereby preserving them for appeal.”). These two

16

exercised to hold agencies to their word, rather than encourage

them to formulate and then reformulate their legal positions to

conveniently support their litigating needs.

* * *

The majority approves the USDA’s bait-and-switch,

remanding petitioners’ claims to the USDA without resolving

the serious constitutional challenge to the ALJ’s independence.

After years of litigation, the petitioners, having already

exhausted the agency’s procedures once, must now return to

make their constitutional arguments to an agency that has

announced it will not consider constitutional arguments.

Straining to avoid judicial decision, the majority places a

substantial burden on petitioners, horse trainers who have the

temerity to challenge the constitutionality of government

procedures.

When Congress requires issue exhaustion before an

administrative agency, we must stay our hand. In this case,

however, nothing in the relevant statute or regulation requires

exhaustion. We should reach petitioners’ structural

constitutional claims even though they were not raised below.

Freytag, 501 U.S. at 878–79. Rather than send petitioners to

argue before a decisionmaker who lacks the constitutional

authority to preside, I would proceed to the merits.

propositions are consistent: regardless of whether 7 C.F.R.

§ 1.145(e) applies, judge-made exhaustion rules may require that

parties present constitutional issues to an agency before raising them

in court, at least as a general matter. See Sims, 530 U.S. at 109. Thus,

one stray statement encouraging parties to preserve constitutional

arguments for judicial review does not nullify the agency’s plain and

unambiguous statement that a “constitutional challenge against the

ALJs … is not … governed by the Rules of Practice.” J.A. 247.

Having clearly stated that position below, the agency should be

precluded from arguing the precise opposite on appeal.

17

III.

Under the text, structure, and original meaning of the

Constitution, as well as Supreme Court precedent, it is

unconstitutional to insulate Agriculture ALJs with two layers

of removal protection.6

A.

The Constitution vests the executive power in a single

person, the President. U.S. Const. art. II, § 1; see also Seila

Law, 140 S. Ct. at 2197 (“The entire ‘executive Power’ belongs

to the President alone.”). The powers vested in the President

and the unitary structure of the Executive Branch mean that the

President must control execution of the laws. In order to “take

care that the Laws be faithfully executed,” U.S. Const. art. II,

§ 3, the President must be able to direct his subordinates in how

the laws will be executed. Because “removal at will” is “the

most direct method of presidential control,” Seila Law, 140

S. Ct. at 2204, “the Constitution gives the President ‘the

authority to remove those who assist him in carrying out his

duties,’” id. at 2191 (quoting Free Enterprise Fund, 561 U.S.

at 513–14). Placing the removal power squarely in the

President’s hands preserves “the chain of dependence,” such

that “the lowest officers, the middle grade, and the highest, will

depend, as they ought, on the President, and the President on

the community.” 1 Annals of Cong. 518 (1789) (statement of

J. Madison).

This chain of dependence promotes democratic

accountability by ensuring the President is “a single object for

the jealousy and watchfulness of the people.” The Federalist

6

Petitioners do not challenge the constitutionality of a single layer

of for-cause removal protection, so I do not address this issue. See

Petitioners Supp. Br. 35 (urging this court to hold that “the USDA

ALJs’ dual-level-tenure-protection contravenes separation of

powers”).

18

No. 70, at 479 (Alexander Hamilton) (Cooke ed. 1961).

Moreover, the removal power reinforces the independence of

the Executive—the absence of such control “would undermine

the separate and coordinate nature of the executive branch.”

Neomi Rao, Removal: Necessary and Sufficient for

Presidential Control, 65 Ala. L. Rev. 1205, 1228 (2014). While

the President can and must rely on subordinates, the power to

remove those subordinates is a “structural protection[] against

abuse of power” that is “critical to preserving liberty.” Bowsher

v. Synar, 478 U.S. 714, 730 (1986).

The President’s removal power derives from the text and

structure of the Constitution and “has long been confirmed by

history and precedent.” Seila Law, 140 S. Ct. at 2197.7 Debates

in the First Congress, the so-called Decision of 1789, made

clear that the President is vested with plenary removal power.

The view that “prevailed” in the First Congress “as most

consonant to the text of the Constitution” was that the Article

II executive power necessarily includes the power to remove

subordinate officers, because anything traditionally considered

to be part of the executive power “remained with the President”

unless “expressly taken away” by the Constitution. Letter from

James Madison to Thomas Jefferson (June 30, 1789).

7

See generally Saikrishna Prakash, The Essential Meaning of

Executive Power, 2003 U. Ill. L. Rev. 701, 796 n.556 (“Most

members of [the First] Congress recognized that forbidding removal

effectively would preclude presidential control of law execution and

destroy presidential accountability for that task.”); Steven G.

Calabresi & Saikrishna B. Prakash, The President’s Power to

Execute the Law, 104 Yale L.J. 541, 597 (1994) (“[S]tructural

reasons and a host of historical and textual arguments persuade us

that the President must also have a removal power so that he will be

able to maintain control over the personnel of the executive

branch.”).

19

The Supreme Court has repeatedly returned to that original

meaning in recognizing that “[s]ince 1789, the Constitution has

been understood to empower the President to keep … officers

accountable—by removing them from office, if necessary.”

Free Enterprise Fund, 561 U.S. at 483; see also Bowsher, 478

U.S. at 723–24 (observing that the Decision of 1789 is

“weighty evidence” of the scope of the removal power)

(citation omitted); Myers v. United States, 272 U.S. 52, 111–36

(1926) (discussing the Decision of 1789 at length); Ex parte

Hennen, 38 U.S. 230, 259 (1839) (noting that the First

Congress’s understanding became the “settled and well

understood construction of the Constitution”). Consistent with

this original public meaning, the Supreme Court has

emphasized that the executive power vested in the President

includes nearly unfettered power to remove officers of the

Executive Branch.

Moreover, the Court has recognized only two judicially

created exceptions to the general constitutional requirement of

“the President’s unrestricted removal power.” Seila Law, 140

S. Ct. at 2192. These exceptions “represent what up to now

have been the outermost constitutional limits of permissible

congressional restrictions on the President’s removal power.”

Id. at 2199–2200 (quoting PHH Corp., 881 F.3d at 196

(Kavanaugh, J., dissenting)). First, the Court has held that

Congress may “create expert agencies led by a group of

principal officers removable by the President only for good

cause.” Id. at 2192 (citing Humphrey’s Executor v. United

States, 295 U.S. 602 (1935)). Second, the Court has held that

Congress may provide limited “tenure protections to certain

inferior officers with narrowly defined duties.” Id. (citing

Morrison v. Olson, 487 U.S. 654 (1988), United States v.

Perkins, 116 U.S. 483 (1886)). The Supreme Court recently

declined to elevate these exceptions “into a freestanding

invitation for Congress to impose additional restrictions on the

20

President’s removal authority.” Seila Law, 140 S. Ct. at 2206

(cleaned up).

Of particular relevance to petitioners’ challenge is Free

Enterprise Fund, in which the Court explained that “Congress

cannot limit the President’s authority” by imposing “two levels

of protection from removal for those who nonetheless exercise

significant executive power.” 561 U.S. at 514. That case

involved members of the PCAOB, who could be removed by

the SEC only “for good cause shown.” 15 U.S.C. § 7211(e)(6).

Commissioners of the SEC, the Court assumed, could be

removed by the President only for “inefficiency, neglect of

duty, or malfeasance in office.” Free Enterprise Fund, 561

U.S. at 487 (quoting Humphrey’s Executor, 295 U.S. at 620).

Thus, two layers of for-cause removal protections insulated

members of the PCAOB from presidential control.

The Court held that this “novel structure does not merely

add to the Board’s independence, but transforms it.” Id. at 496.

“Without the ability to oversee the Board, or to attribute the

Board’s failings to those whom he can oversee, the President

is no longer the judge of the Board’s conduct. … He can neither

ensure that the laws are faithfully executed, nor be held

responsible for a Board member’s breach of faith.” Id.

Refusing to sanction innovative intrusions on the President’s

removal authority, the Court held that the independence created

by a double layer of tenure protection was unconstitutional.

The Constitution’s vesting of executive power in a single

President, the structure of separate and independent powers,

and longstanding Supreme Court precedent confirm that the

President has broad power to remove executive officers. The

Court has also reaffirmed that any judicially created exceptions

to the removal power must be construed narrowly in light of

the President’s constitutional responsibility to execute the law.

21

B.

Under this framework, the “dual for-cause limitations on

the removal” of ALJs “contravene the Constitution’s

separation of powers.” Free Enterprise Fund, 561 U.S. at 492.

First, ALJs are officers of the United States. As the

government concedes and the majority agrees, this conclusion

follows from the Court’s decision in Lucia, because

Agriculture ALJs are materially indistinguishable from SEC

ALJs. For example, Agriculture ALJs have extensive control

over hearings, including the authority to issue subpoenas, take

and order depositions, admit or exclude evidence, and rule

upon motions. 7 C.F.R. § 1.144(c). The ALJ’s decision

becomes final absent an appeal. Id. § 1.142(c)(4), § 2.27(a)(1).

Agriculture ALJs also have career appointments, 5 C.F.R.

§ 930.204(a), pursuant to an authorizing statute, see 5 U.S.C.

§ 3105. Since Lucia, no appellate court has found that a

particular agency’s ALJs are not officers. See Jones Bros., Inc.

v. Sec’y of Labor, 898 F.3d 669, 679 (6th Cir. 2018) (extending

Lucia to apply to Social Security Administration ALJs). See

also U.S. Dep’t of Justice, Memorandum: Guidance on

Administrative Law Judges after Lucia v. SEC (S. Ct.) (2018)

at 2 (“[W]e conclude that all ALJs and similarly situated

administrative judges should be appointed as inferior officers

under the Appointments Clause.”). Following Lucia,

Agriculture ALJs are inferior Executive Branch officers.

Second, as “Officers of the United States,” ALJs exercise

the Article II executive power on behalf of the President. To be

sure, ALJs perform adjudicative functions and use adjudicatory

procedures to execute the law. See 7 C.F.R. § 1.141. Whatever

methods or functions are employed, however, officers of the

Executive Branch cannot exercise anything but executive

power:

22

The [legislative power] is vested exclusively in

Congress, the [judicial power] in the “one

supreme Court” and “such inferior Courts as the

Congress may from time to time ordain and

establish.” Agencies make rules … and conduct

adjudications … and have done so since the

beginning of the Republic. These activities take

“legislative” and “judicial” forms, but they are

exercises of—indeed, under our constitutional

structure they must be exercises of—the

“executive Power.”

City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013)

(citations omitted); see also Freytag, 501 U.S. at 912 (Scalia,

J., concurring in part) (“[T]he Tax Court, like the Internal

Revenue Service, the FCC, and the NLRB, exercises executive

power.”). 8 As Congress lacks the power to delegate to

Executive Branch officers either the legislative power,

Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 472

(2001), or the judicial power, Stern v. Marshall, 564 U.S. 462,

484 (2011), ALJs can exercise neither. See also Seila Law, 140

S. Ct. at 2216 (Thomas, J., concurring in part and dissenting in

part) (explaining that Congress cannot “create agencies that

straddle multiple branches of Government … [f]ree-floating

8

Justices of the Supreme Court who disagree about the permissible

restrictions on the President’s removal power agree that the heads of

independent agencies exercise executive power, even when they

adjudicate or enact regulations. See Free Enterprise Fund, 561 U.S.

at 514 (observing that PCAOB members with adjudicatory functions

“exercise significant executive power”); id. at 516 (Breyer, J.,

dissenting) (framing the question as the President’s power to dismiss

“executive Branch officials”); see also Seila Law, 140 S. Ct. at 2234

n.7 (Kagan, J., concurring in part and dissenting in part) (disagreeing

with the majority regarding the scope of the removal power but

noting that “today we view all the activities of administrative

agencies as exercises of the executive power”) (cleaned up).

23

agencies simply do not comport with [the] constitutional

structure”).

Third, while “Congress may afford the officers of

[Executive Branch adjudicative bodies] a measure of

independence from other executive actors … they remain

Executive–Branch officers subject to presidential removal.”

Kuretski v. Comm’r, 755 F.3d 929, 944 (D.C. Cir. 2014). As

officers exercising the executive power, Agriculture ALJs must

be accountable to the President. To secure the requisite

constitutional accountability, officers must be in the chain of

command to the President, with control generally provided by

removal at will. See Seila Law, 140 S. Ct. at 2191.

Yet despite being Executive Branch officers wielding the

executive power on behalf of the President, Agriculture ALJs

are not subject to the President’s control, either directly or

through the Secretary of Agriculture. Congress insulated ALJs

with two layers of for-cause removal protection: an agency

may remove an ALJ “only for good cause established and

determined by the [MSPB],” 5 U.S.C. § 7521(a), and members

of the MSPB “may be removed by the President only for

inefficiency, neglect of duty, or malfeasance in office,” 5

U.S.C. § 1202(d).

ALJs have not always enjoyed such double layered

independence. Prior to 1946, ALJs enjoyed no tenure

protections at all and “were in a dependent status” vis-à-vis

their agency. Ramspeck v. Fed. Trial Exam’rs Conf., 345 U.S.

128, 130 (1953). The Administrative Procedure Act (“APA”)

in 1946 first provided that ALJs may be removed only for good

cause, a development designed to promote “independence and

tenure within the existing Civil Service system.” Id. at 132.

Congress ensured ALJs were “removable by the agency in

which they are employed only for good cause established and

determined by the Civil Service Commission.” Administrative

Procedure Act, Pub. L. No 79-404, § 11, 60 Stat. 237 (1946).

24

The members of the Civil Service Commission, however, were

removable at will by the President. See 5 U.S.C. § 632 (1946)

(“The President may remove any Commissioner.”). So ALJs

were protected by a single for-cause removal restriction.

It was not until 1978 that Congress established the Merit

Systems Protection Board, the members of which can be

removed only for cause, to replace the Civil Service

Commission. See Civil Service Reform Act of 1978, Pub. L.

No. 95-454, § 1202(d), 92 Stat. 1111. These amendments also

placed ALJs within the control of the MSPB, creating the

double layer of for-cause removal protection. Thus, the double

layered independence for ALJs is a relatively recent

innovation. Cf. Seila Law, 140 S. Ct. at 2202 (“The CFPB’s

single-Director structure is an innovation with no foothold in

history or tradition.”).

When the two for-cause removal restrictions are

combined, neither the President nor the Secretary has any

meaningful power to remove ALJs from office—for any

reason, much less for “simple disagreement with [their]

policies or priorities.” Free Enterprise Fund, 561 U.S. at 502.

Because adjudication is the sole mechanism by which the

USDA can execute statutes like the Horse Protection Act, see

15 U.S.C. § 1825(b)(1), an ALJ’s double layer of independence

deprives the President of any effective control over

enforcement of such statutes. The two layers insulating

Agriculture ALJs from removal are materially identical to the

two layers that protected members of the PCAOB—an ALJ

may be removed only for cause by a Board whose members

may be removed only for cause.9 This is an unconstitutional

infringement of the President’s executive power.

9

In Free Enterprise Fund, the Supreme Court explicitly stated that

it was “not address[ing]” the question of the constitutionality of

double layer removal protections for ALJs. 561 U.S. at 507 n.10

25

While the Court has recognized that an inferior officer may

be insulated from removal in some circumstances, see Seila

Law, 140 S. Ct. at 2199 (citing Morrison, 487 U.S. at 662–63,

696–97), that narrow exception to the President’s removal

power does not extend to two layers of for-cause tenure

protection. A second layer of for-cause protection

“contravene[s] the Constitution’s separation of powers,”

because it results in officers who are “not accountable to the

President, and a President who is not responsible for” his

officers. Free Enterprise Fund, 561 U.S. at 492, 495.

Under the double tenure protection in Section 7521(a), the

Secretary cannot remove an ALJ who fails to follow the policy

directives of the agency—the “second layer matters precisely

when the President finds it necessary to have a subordinate

officer removed, and a statute prevents him from doing so.” Id.

at 497 n.4. This limitation on the President’s oversight of the

execution of the laws “subverts the President’s ability to ensure

that the laws are faithfully executed—as well as the public’s

ability to pass judgment on his efforts.” Id. at 498. Thus,

statutory insulation of ALJs with two layers of for-cause

removal protection impedes the President’s control over

execution of the laws and violates the Constitution’s structure

of separate and independent powers.

C.

The government and court-appointed amicus raise a

number of arguments in support of removal protections for

(emphasis added). The Court later said in Lucia that “[n]o court has

addressed th[e] question” of whether an ALJ’s tenure protections are

constitutional, explicitly leaving the question open once again. 138

S. Ct. at 2050 n.1. Court-appointed amicus is therefore mistaken in

asserting that the Court exempted ALJs from its holding in Free

Enterprise Fund. See Appointed Amicus Rep. Br. 2. The open

question is squarely presented in this case.

26

Agriculture ALJs. They focus primarily on the ALJ’s

adjudicatory role and scope of responsibility, as well as the

Secretary’s remaining oversight powers. At root, these

arguments assume that ALJs are categorically different from

other Executive Branch officers. Yet such a principle is

incompatible with the Constitution and recent Supreme Court

decisions. As the Court recognized in Lucia, ALJs are

“officers” for the purposes of the Appointments Clause. 138

S. Ct. at 2049, 2054. They must therefore be “officers” for the

purposes of the President’s removal power. The principle of

“adjudicatory independence” pressed by amicus is explicitly

protected in the Constitution by the life tenure and irreducible

salaries guaranteed to Article III judges, see U.S. Const. art. III,

§ 1; however, any principle of adjudicatory independence for

ALJs must be understood in the context of executive power

exercised within the Executive Branch. In that context, the

President has the constitutional power and responsibility for

overseeing execution of the laws, a power generally backed by

the threat of removal. Any insulation Congress creates for

agency adjudication must be compatible with the

Constitution’s vesting of all executive power in the President.

Neither the government nor the court-appointed amicus

demonstrates how two layers of for-cause removal protections

for ALJs are compatible with the Constitution and the Supreme

Court’s precedents confirming the centrality of the President’s

removal authority to the separation of powers.

1.

Dodging the constitutional question, the government

insists that we can and must interpret the double for-cause

removal protection in Section 7521(a) to avoid running afoul

of Article II. To reach this result, the government maintains that

the “good cause” standard can be read to allow removal of

ALJs for “misconduct, poor performance, or failure to follow

lawful directions, but not for reasons that are invidious or

27

otherwise improper in light of their adjudicatory function,” and

that such a reading would be sufficient to protect the

President’s executive power. Gov’t Supp. Br. 31.

The Supreme Court, however, has repeatedly declined to

read statutory removal restrictions contrary to their

conventional and longstanding meaning, a meaning that

includes a measure of independence from policy direction. As

the Court has explained, “removal restrictions set forth in the

statute mean what they say,” and for-cause provisions

generally do not permit removal based on “simple

disagreement with … policies or priorities.” Free Enterprise

Fund, 561 U.S. at 502. In Seila Law, the Court likewise rejected

constructions of “good cause” to allow for greater presidential

control, because “we take Congress at its word that it meant to

impose a meaningful restriction on the President’s removal

authority.” 140 S. Ct. at 2207; see also id. at 2206 (noting that

the government’s saving construction would conflict with

Humphrey’s Executor, which “implicitly rejected an

interpretation that would leave the President free to remove an

officer based on disagreements about agency policy”); Free

Enterprise Fund, 561 U.S. at 503 n.7 (finding the government’s

construction of good cause “implausibl[e]”); PHH Corp., 881

F.3d at 191 n.16 (Kavanaugh, J., dissenting) (“[F]or-cause

removal restrictions attached to independent agencies

ordinarily prohibit removal except in cases of inefficiency,

neglect of duty, or malfeasance.”).10

10

Moreover, the MSPB’s assessments of good cause in ALJ removal

proceedings are reviewed by the Federal Circuit, which, like the

Supreme Court, has maintained that the good cause standard does not

permit removal based only on policy disagreements. See Berlin v.

Dep’t of Labor, 772 F.3d 890, 894 (Fed. Cir. 2014) (holding that an

agency may not remove an ALJ if it would “constitute an improper

interference with the ALJ’s performance of his quasi-judicial

28

The government also fails to provide any criteria for

separating what it considers “legitimate reasons” for removal

from the invidious ones. Gov’t Supp. Br. 32. Cf. Seila Law, 140

S. Ct. at 2206 (noting that the CFPB’s defenders failed to

articulate “any workable standard derived from the statutory

language” for their interpretation of good cause). The

government’s ahistorical and unconventional interpretation

would create substantial uncertainty about the degree of

permissible presidential control of ALJs and run afoul of the

separation of powers. Enforcing the President’s constitutional

power of removal through case-by-case statutory interpretation

would leave courts to make the ultimate assessment of “good

cause” for removal. Such a scheme would undermine the

President’s independent constitutional authority to ensure

faithful execution of the law by controlling and directing his

subordinates.

Thus, I would reject the government’s attempt to

reconstruct “good cause” removal protections in a manner

contrary to longstanding Supreme Court precedent. The double

for-cause removal protection is not amenable to an

interpretation that allows us to avoid the constitutional

question.

2.

The court-appointed amicus argues that two layers of for-

cause removal protection are constitutional because “removal

protections for Executive Branch officials with adjudicatory

roles have become firmly ensconced in constitutional law.”

Appointed Amicus Br. 7. This claim, however, relies on an

outdated distinction between adjudication and other executive

functions”) (citing Brennan v. Dep’t of Health & Human Servs., 787

F.2d 1559, 1563 (Fed. Cir. 1986)).

29

functions in order to justify restrictions on the President’s

removal power.

While Humphrey’s Executor upheld removal restrictions

for a so-called independent agency exercising “quasi-

legislative” and “quasi-judicial” functions, 295 U.S. at 629

(1935) (cleaned up), the Supreme Court has repudiated this

reasoning. In Morrison v. Olson, for example, the Supreme

Court explicitly departed from its earlier reliance “on the terms

‘quasi-legislative’ and ‘quasi-judicial’ to distinguish the

officials involved”:

[T]he determination of whether the Constitution

allows Congress to impose a “good cause”-type

restriction on the President’s power to remove

an official cannot be made to turn on whether or

not that official is classified as “purely

executive.” The analysis contained in our

removal cases is designed … to ensure that

Congress does not interfere with the President’s

exercise of the “executive power” and his

constitutionally appointed duty to “take care

that the laws be faithfully executed” under

Article II.

487 U.S. at 689–90. Whatever an official’s functions may be,

“the real question is whether the removal restrictions are of

such a nature that they impede the President’s ability to

perform his constitutional duty.” Id. at 691; see also Seila Law,

140 S. Ct. at 2216 (Thomas, J., concurring in part and

dissenting in part) (explaining that “the Court’s premise [in

Humphrey’s Executor] was entirely wrong” because “[t]he

Constitution does not permit the creation of officers exercising

‘quasi-legislative’ and ‘quasi-judicial powers’ in ‘quasi-

legislative’ and ‘quasi-judicial agencies’”).

30

In line with this reasoning, the Court has invalidated for-

cause removal limitations for executive officers who perform

judicial functions. It struck down the double layer of removal

protection for members of the PCAOB because they were

executive officers, despite their judicial functions. See Free

Enterprise Fund, 561 U.S. at 498. Similarly, the Court

invalidated the removal restrictions for the Director of the

CFPB, irrespective of his adjudicatory functions. Seila Law,

140 S. Ct. at 2193 (detailing the CFPB’s “extensive

adjudicatory authority”).

Admittedly, the ALJs at issue here have only adjudicatory

functions, whereas the CFPB Director and the members of the

PCAOB performed adjudicatory as well as other functions. See

Appointed Amicus Br. 4; Appointed Amicus Rep. Br. 12. Yet

this makes no constitutional difference. The Court has

emphasized that officers exercise the executive power,

irrespective of what functions they perform. See Freytag, 501

U.S. at 901, 907 (Scalia, J., concurring in part) (contending that

the Tax Court, despite having exclusively adjudicatory

functions, is an executive “department,” the head of which is

“answerable to the President”). Moreover, even if some for-

cause limitations on removal of ALJs may fit under the

exception for inferior officers in Morrison, a question not

presented here, the arguments raised by amicus regarding

“adjudicatory independence” cannot justify a double layer of

removal protection, which the Supreme Court specifically held

unconstitutional in Free Enterprise Fund.

The cases reinforce that regardless of their particular

functions—adjudication, rulemaking, prosecution, etc.—

officers within the Executive Branch exercise the executive

power. The President or someone directly accountable to him

must have the power to control officers executing the law, and

ALJs are no exception.

31

3.

The court-appointed amicus also argues that two layers of

for-cause removal protection are acceptable because

Agriculture ALJs “do not wield expansive enforcement or

policymaking powers.” Appointed Amicus Br. 24. This

argument just reframes the previous argument—namely,

because ALJs are not exercising traditional executive

functions, they may be insulated from the President’s control.

Even on functionalist grounds, however, amicus is mistaken.

As the Supreme Court noted in Lucia, ALJ adjudication is

an enforcement power. 138 S. Ct. at 2049 (explaining that ALJ

adjudication is simply “one way” agencies “enforce the

nation’s … laws”). In enforcing the law, ALJs play a

substantial role in formulating an agency’s policy. While ALJs

cannot promulgate department-wide regulations, they

nonetheless “determine, on a case-by-case basis, the policy of

an executive branch agency.” Sec’y of Educ. Rev. of ALJ

Decisions, 15 Op. O.L.C. 8, 15 (1991). Moreover, as the Court

has recognized, ALJs have “significant discretion” when

exercising their “important functions.” Lucia, 138 S. Ct. at

2053 (citing Freytag, 501 U.S. at 882).

In particular, the Horse Protection Act requires ALJs, who

act on behalf of the Secretary, to make discretionary decisions

that necessarily implicate policy determinations. For instance,

in determining the size of a monetary penalty, Agriculture

ALJs must weigh subjective factors such as the “nature,

circumstances, extent, and gravity of the” offense at issue. 15

U.S.C. § 1825(b)(1). The ALJs must then evaluate the

accused’s “degree of culpability, any history of prior offenses,

ability to pay, [the punishment’s] effect on ability to continue

to do business, and such other matters as justice may require.”

Id. The ALJs also have broad discretion to disqualify horse

trainers from their occupation. Id. § 1825(c). Because ALJs

have such wide discretion to determine violations of the law

32

and craft penalties—penalties that the Department may have to

defend in court as appropriate and legal executions of the law—

their deliberations necessarily include sensitive policy

decisions. Contrary to amicus’ representations, such

policymaking discretion, in which an officer must choose

between a range of lawful options, is an exercise of executive

power and therefore must be subject to the President’s control.

At bottom, however, the Constitution does not separate

functions, but powers. Amicus’ arguments thus fail for a

fundamental reason. ALJs are executive officers exercising an

aspect of the executive power vested in the President. Yet an

ALJ’s discretion is insulated from the supervision of both the

President and the Secretary of Agriculture. If the Secretary

disagrees with an ALJ’s policy preferences—for instance, if he

thinks the ALJ routinely imposes overly harsh, or insufficiently

harsh, penalties—the double layer of for-cause removal

protection means that the Secretary has virtually no power to

remove the ALJ and replace him with an officer willing to carry

out the administration’s policy preferences. Indeed, according

to the court-appointed amicus, one of the primary benefits of

tenure protections is to block the Secretary from removing “an

ALJ for failure to render a decision favoring the agency’s

policy positions.” Appointed Amicus Br. 16. This naturally

raises the question, whose policy positions should the ALJ

promote if not the agency for which he works?

No one questions that ALJs have an obligation to follow

the law, but discretionary decisions implicating agency policy

cannot be doubly insulated from democratic control without

transgressing the vesting of executive power in the President

and the Constitution’s careful separation of powers.

4.

The court-appointed amicus also minimizes the

independence of Agriculture ALJs by focusing on the

33

Secretary’s other oversight tools. First, the amicus notes that

because the Secretary has the statutory authority to preside over

each case himself, he need not use ALJs in the first place. See

15 U.S.C. § 1825(b)(1). Second, the Secretary has the power to

review ALJ decisions de novo—a responsibility he has

delegated to the agency’s Judicial Officer. See 7 U.S.C.

§ 2204-2; 7 C.F.R. § 1.145.

These oversight mechanisms cannot compensate for the

loss of control that follows from the double restraints on the

removal power. Amicus’ arguments minimizing the

importance of ALJ authority and independence cannot be

reconciled with Lucia, which held that ALJs are “officers” of

the United States, meaning that by definition they exercise

significant authority under the laws of the United States.

Specifically, the Court concluded that ALJs in the SEC wield

“significant authority” in executing the law even though the

Commissioners, like the Secretary, are free to review and

reverse decisions by ALJs. Lucia, 138 S. Ct. at 2052–54. The

Court emphasized the fact that an ALJ’s decision can become

final if the “SEC declines review,” an important “last-word

capacity.” Id. at 2054. The same is true of decisions rendered

by Agriculture ALJs. See 7 C.F.R. § 2.27(a)(1) (providing that

“decisions shall become final” unless appealed to the

Secretary). ALJs wield meaningful, independent power despite

existing forms of oversight.

The decisions of Agriculture ALJs may be countermanded

by other officers, but that is not sufficient to place ALJs within

the chain of command to the President. De novo review by the

Secretary or Judicial Officer cannot replace control through the

removal power. As the Supreme Court recognized in Free

Enterprise Fund, “[b]road power over Board functions is not

equivalent to the power to remove Board members.” 561 U.S.

at 504. The constitutionally required control cannot be

exercised through micromanaging the ALJ’s activities, or even

34

by promulgating regulations to govern or limit the ALJ’s

discretion. Id. Control over subordinates can be practically

exercised in a variety of ways, but the removal power is the

necessary constitutional minimum because it recognizes that

the President sets the policies of the Executive Branch and

remains accountable to the people for ensuring that his officers

follow those policies. See, e.g., Myers, 272 U.S. at 117

(concluding that the removal power is “essential to the

execution of the laws”); id. at 245 (Brandeis, J., dissenting)

(concluding that the “ability to remove a subordinate executive

officer” is “essential [to] effective government”).

Removal creates the proper chain of command. Proper

supervision of ALJs cannot mean that the Secretary of

Agriculture must adjudicate or review every case under the

Horse Protection Act and countless other statutes. “[T]he

various ‘bureaucratic minutiae’ a President might use to corral

agency personnel [are] no substitute for at will removal.” Seila

Law, 140 S. Ct. at 2207 (quoting Free Enterprise Fund, 561

U.S. at 500); see also Bowsher, 478 U.S. at 726 (“Once an

officer is appointed, it is only the authority that can remove him

… that he must fear and, in the performance of his functions,

obey.”) (cleaned up). While the Secretary has some

mechanisms to oversee the ALJs, such limited checks cannot

provide the essential democratic accountability that follows

from being removable at will.

5.

Finally, the court-appointed amicus argues that

“[d]isposing of safeguards for ALJ adjudicatory independence

would raise serious due process concerns.” Appointed Amicus

Br. 17. The scope of due process protections, however, must be

understood in light of the particular context of Executive

Branch adjudication. Outside Article III courts, the balancing

test in Mathews v. Eldridge governs “what process is due.” 424

U.S. 319, 349 (1976). The Supreme Court has explained that

35

“due process is flexible and calls for such procedural

protections as the particular situation demands.” Morrisey v.

Brewer, 408 U.S. 471, 481 (1972); see also UDC Chairs

Chapter, Am. Ass’n of Univ. Profs. v. Bd. of Trustees of Univ.

of Dist. of Columbia, 56 F.3d 1469, 1472 (D.C. Cir. 1995)

(quoting Morrisey, 408 U.S. at 483); William Baude,

Adjudication Outside Article III, 133 Harv. L. Rev 1511, 1521

(2020) (explaining that “[b]oth judicial and executive bodies

can engage in the procedure of adjudication, but they do so

pursuant to different kinds of power”). As amicus properly

recognizes, “the requirements of due process in administrative

adjudication are not identical to those applicable to Article III

judges.” Appointed Amicus Br. 18.

Whatever the scope of such administrative due process

requirements, they are not undermined through adjudication by

a politically accountable officer. Administrative adjudication

has historically been undertaken by heads of agencies and

administrative law judges who were removable at will. In this

case, Congress vested the power to adjudicate cases under the

Horse Protection Act in the Secretary of Agriculture, who is of

course removable at will by the President. Amicus defends the

ALJ removal protections by relying on the fact that the

Secretary can lawfully preside over USDA hearings. Yet if the

Secretary can preside, it cannot violate due process for the

presiding ALJ to also be subject to removal at will (or to be

protected by only one layer of for-cause removal protection).

Furthermore, prior to the APA’s enactment, the removal and

promotion of administrative adjudicators were “determined by

the ratings given them by the agency.” Ramspeck, 345 U.S. at

130. The lack of adjudicatory independence prior to the APA,

however, posed no constitutional problems. See Marcello v.

Bonds, 349 U.S. 302, 311 (1955) (holding that it does not

violate due process to have an adjudicator who is “subject to

the supervision and control of officials in the Immigration

Service charged with investigative and prosecuting

36

functions”). Even after the APA’s enactment, three decades

elapsed before ALJs were afforded a double layer of for-cause

protection from removal.

Generalized claims of due process for administrative

adjudication cannot overcome the constitutional requirement

that the President must have the power to control officers who

execute the law and to remove them if necessary. That principle

applies with equal force to ALJs who execute the law through

adjudication.

* * *

The law is clear: “[T]ext, first principles, the First

Congress’s decision in 1789, [and precedent] all establish that

the President’s removal power is the rule, not the exception.”

Seila Law, 140 S. Ct. at 2206. The double layer of for-cause

removal protection insulating the Agriculture ALJs violates the

Constitution’s separation of powers. Officers executing the law

must be accountable to the President and, through this chain of

command, to the people. I would therefore hold 5 U.S.C.

§ 7521(a) unconstitutional as applied to ALJs within the

USDA.

IV.

The final issue is remedial—how much of the statute to

hold unconstitutional and what relief to provide to the

petitioners. When holding a statute unconstitutional, we should

“refrain from invalidating more of the statute than is

necessary.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684

(1987) (citation omitted); see also Seila Law, 140 S. Ct. at 2209

(finding the statute’s “provisions are capable of functioning

independently,” and therefore invalidating only the removal

restrictions while leaving the rest of the statute intact); id.

(explaining that without the removal restrictions, “the

constitutional violation would disappear”).

37

Because petitioners challenged only the constitutionality

of two layers of removal protection, I would go no further than

to invalidate one of the for-cause removal limits. The most

straightforward way to accomplish this result is to hold the

statute unconstitutional insofar as it requires the MSPB to

determine whether there is good cause to remove the ALJ—the

provision stating that cause will be “established and determined

by the [MSPB] on the record after opportunity for hearing

before the Board.” 5 U.S.C. § 7521(a). This would leave one

layer of for-cause protection—the Secretary alone would be

responsible for determining whether there is good cause to

remove an ALJ. This holding would cure the constitutional

defect identified by Free Enterprise Fund because it eliminates

the double for-cause framework insulating an executive officer

from oversight.11

Section 7521(a) is unconstitutional as applied to the

Agriculture ALJs, and therefore the orders against the

petitioners must be vacated. Remand to the agency for further

proceedings must be to a properly appointed ALJ, as the

majority holds, and also to an ALJ not subject to a double layer

of for-cause removal protection.12

11

I do not address the constitutionality of any other language in

Section 7521(a), including whether it is constitutional for the statute

to provide that the Secretary may remove an ALJ “only for cause”—

i.e., whether a single layer of for-cause removal protection is

constitutional.

12

One potential complication with a remand is that if the Secretary

removes an ALJ, the ALJ could seek judicial review in the U.S. Court

of Federal Claims. 28 U.S.C. § 1491(a). That court’s decisions are

reviewed by the Federal Circuit, see 28 U.S.C. § 1295(a)(3), which,

in turn, is not bound by this court’s precedents and could reach a

different conclusion about the lawfulness of Section 7521(a). For

practical purposes, then, ALJs could remain protected by the dual

layer despite a decision from this court holding such a scheme

38

* * *

The majority allows the government to argue before the

agency that constitutional questions should be left to the courts

and then argue before this court that constitutional questions

should be left to the agency. We should not allow the agency

to have its cake and eat it too. The petitioners properly

presented their constitutional challenge to this court, and no

rule of law requires that the argument be presented to the

agency first. In the wake of Seila Law, Free Enterprise Fund,

and Lucia, there can be no doubt that Agriculture ALJs enjoy

an unconstitutional degree of freedom from oversight.

Insulating ALJs with two layers of tenure protection dissipates

the executive power and runs afoul of separation of powers.

Petitioners should not have to relitigate their claims before an

agency adjudicator who lacks the requisite constitutional

accountability. I respectfully dissent.

unconstitutional. This issue was not briefed by the parties, and it is

unnecessary to opine on such hypotheticals here.