Amicus Curiae Brief — United States, Petitioner v. Arthrex, Inc., et al.
Supreme Court briefDec 29, 2020
Ask Donna
What actually matters in this document.
Text
Nos. 19-1434, 19-1452, 19-1458
In the
Supreme Court of the United States
____________________
U NITED S TATES OF A MERICA ,
Petitioner,
v.
A RTHREX , I NC ., ET AL .,
Respondents.
____________________
On Writs of Certiorari to the
United States Court of Appeals
for the Federal Circuit
______________________
BRIEF AMICUS CURIAE OF PACIFIC
LEGAL FOUNDATION IN SUPPORT
OF RESPONDENT ARTHREX, INC.,
IN NOS. 19-1434 & 19-1452
_______________________
D AMIEN M. S CHIFF
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
916.419.7111
dschiff@pacificlegal.org
O LIVER J. D UNFORD
Counsel of Record
Pacific Legal Foundation
4440 PGA Blvd., Ste. 307
Palm Beach Gardens, FL
33410
916.503.9060
odunford@pacificlegal.org
Counsel for Amicus Curiae
Pacific Legal Foundation
(Additional captions listed on inside cover)
______________________
S MITH & N EPHEW , I NC ., ET AL . ,
Petitioners,
v.
A RTHREX , I NC ., ET AL . ,
Respondents.
______________________
A RTHREX , I NC .,
Petitioner,
v.
S MITH & N EPHEW , I NC ., ET AL . ,
Respondents.
______________________
i
TABLE OF CONTENTS
Table of Authorities .................................................. iii
Identity and Interest of Amicus Curiae ..................... 1
Introduction and Summary of Argument .................. 2
Argument .................................................................... 4
I. All “Officers of the United States”
Exercise Sovereign Authority .......................... 4
A. Officers of the United States exercise
“significant” authority—properly
defined ......................................................... 5
B. “Significant” authority denotes
sovereign authority—of varying
levels of importance .................................... 9
II. The Distinctions Among Officers Depend
on the Importance and Scope of Their
Authority ....................................................... 12
A. The Constitution recognizes that
“Officers of the United States” exercise
varying levels of sovereign authority ....... 12
B. Long-settled practice confirms that
superior officers—although not Heads
of Departments—exercise important
power and wield substantial discretion ... 15
1. The Department of Justice.................. 15
2. Health and Human Services ............... 19
3. The “inferior Courts” ........................... 20
C. Edmond’s direction-and-supervision
standard is inadequate to distinguish
between inferior and non-inferior
officers ....................................................... 22
ii
D. The key distinction between superior
and inferior officers is the nature and
scope of their authority............................. 25
1. The power to issue final decisions
on behalf of the government may
be exercised only by superior and
principal officers .................................. 25
2. The authority to exercise substantial
discretion in carrying out responsibilities of high importance may be
exercised only by superior and
principal officers .................................. 26
III.
Administrative Patent Judges Are
Superior Officers ........................................... 28
Conclusion ................................................................. 30
iii
TABLE OF AUTHORITIES
Cases
Ass’n of Am. R.R. v. Dep’t of Transp.,
821 F.3d 19 (D.C. Cir. 2016) ............................. 26
Auffmordt v. Hedden,
137 U.S. 310 (1890) ......................................... 6–7
Buckley v. Valeo,
424 U.S. 1 (1976) ....................................... 3–7, 26
Butz v. Economou,
438 U.S. 478 (1978) ........................................... 29
City of Arlington v. FCC,
569 U.S. 290 (2013) ........................................... 11
Dietz v. Bouldin,
136 S. Ct. 1885 (2016) ................................. 20–21
Edmond v. United States,
520 U.S. 651 (1997) ................... 3, 5–6, 23, 25–27
Ex parte Hennen,
38 U.S. (13 Pet.) 230 (1839) ................................ 8
Federal Maritime Comm’n v. S. Carolina
State Ports Auth.,
535 U.S. 743 (2002) ..................................... 29–30
Free Enterprise Fund v. PCAOB,
561 U.S. 477 (2010) ............................... 10–11, 19
Freytag v. Commissioner,
501 U.S. 868 (1991) ......................................... 5–7
Hall v. Wisconsin,
103 U.S. (13 Otto) 5 (1880) .................................. 8
INS v. Chadha,
462 U.S. 919 (1983) ..................................... 11–12
King v. Burnell,
Carth. 478 (K.B. 1700) ................................ 10–11
iv
LaShawn A. v. Barry,
87 F.3d 1389 (D.C. Cir. 1996) ........................... 21
Lucia v. SEC,
138 S. Ct. 2044 (2018) ................................. 1, 4–6
Morrison v. Olson,
487 U.S. 654 (1988) ................................. 3, 23–24
Muskrat v. United States,
219 U.S. 346 (1911) ........................................... 29
Myers v. United States,
272 U.S. 52 (1926) ........................................... 8–9
NLRB v. Noel Canning,
573 U.S. 513 (2014) ..................................... 15, 25
Plaut v. Spendthrift Farm, Inc.,
514 U.S. 211 (1995) ........................................... 21
Rapanos v. United States,
547 U.S. 715 (2006) ............................................. 1
Sackett v. EPA,
566 U.S. 120 (2012) ............................................. 1
SAS Institute Inc. v. Iancu,
138 S. Ct. 1348 (2018) ....................................... 29
Seila Law LLC v. CFPB,
140 S. Ct. 2183 (2020) ....................................... 24
U.S. Army Corps of Eng’rs v. Hawkes Co., Inc.,
136 S. Ct. 1807 (2016) ......................................... 1
United States v. Germaine,
99 U.S. (9 Otto) 508 (1878) .............................. 6–8
United States v. Hartwell,
73 U.S. (6 Wall.) 385 (1867) ............................ 6–8
United States v. Maurice,
26 F. Cas. 1211 (Va. Cir. Ct. 1823) ................. 7–8
v
United States v. Moore,
95 U.S. (5 Otto) 760 (1877) .................................. 8
United States v. Mouat,
124 U.S. 303 (1888) ............................................. 8
United States v. Perkins,
116 U.S. 483 (1886) ............................................. 8
United States v. Smith,
124 U.S. 525 (1888) ............................................. 8
Weiss v. United States,
510 U.S. 163 (1994) ..................................... 21–22
Williams v. United States,
168 U.S. 382 (1897) ............................................. 8
United States Constitution
U.S. Const. art. I:
§ 2, cl. 1 .............................................................. 12
§ 3, cl. 1 .............................................................. 12
U.S. Const. art. II:
§ 1 ......................................................................... 9
§ 1, cl. 2 .............................................................. 12
§ 1, cl. 3 .............................................................. 12
§ 2, cl. 1 .............................................................. 13
§ 2, cl. 2 ...................................................... 4–5, 12
§ 3 ......................................................................... 9
Statutes
10 U.S.C. § 113(a) ................................................... 25
12 U.S.C. § 1(a) ....................................................... 27
15 U.S.C. § 717t-1 ................................................... 27
§ 1691 ................................................................. 17
vi
18 U.S.C. § 542(a) ................................................... 21
§ 3231 ................................................................. 20
§ 3331(a)....................................................... 16, 26
§ 3742(b)....................................................... 16, 26
§ 4041 ................................................................. 18
20 U.S.C. § 33, et seq. .............................................. 17
§ 1681, et seq. ..................................................... 17
§ 1701 ................................................................. 17
§ 3508 ................................................................. 19
21 U.S.C. § 393(b)(1) ............................................... 19
§ 393(b)(2)(A) ..................................................... 19
§ 393(b)(2)(B) ..................................................... 19
§ 393(d)(1) .......................................................... 20
§ 393(d)(2)(A) ............................................... 20, 27
22 U.S.C. § 2651a(b)(2) ........................................... 27
§ 6761 ................................................................. 27
28 U.S.C. §§ 132–133 .............................................. 20
§ 503 ................................................................... 16
§§ 503–506 ......................................................... 26
§§ 504–506 ................................................... 16, 18
§ 516 ................................................................... 17
§ 519 ............................................................. 17–18
§ 541(a)......................................................... 17–18
§ 541(b)............................................................... 17
§ 547 ............................................................. 18, 27
§ 547(1)............................................................... 17
§ 547(2)............................................................... 17
§§ 671–674 ......................................................... 22
vii
§ 711 ................................................................... 22
§ 713 ................................................................... 22
§ 751 ................................................................... 22
§ 1291 ................................................................. 21
§ 1296 ................................................................. 21
§ 1331 ................................................................. 21
§ 1355 ................................................................. 21
§ 1367 ................................................................. 21
29 U.S.C. § 701 ........................................................ 17
35 U.S.C. § 3(a)(1) ................................................... 27
§ 6 ....................................................................... 28
§ 6(b)................................................................... 28
§ 6(c) ................................................................... 28
§ 141(c) ............................................................... 29
§ 311(a)............................................................... 28
§ 314 ................................................................... 28
§ 316(c) ............................................................... 28
§ 318(a)............................................................... 28
§ 319 ............................................................. 28–29
38 U.S.C. § 4301, et seq. .......................................... 17
42 U.S.C. § 45 .......................................................... 17
§ 192 ................................................................... 20
§ 193 ................................................................... 20
§ 205 ................................................................... 20
§ 282(a)............................................................... 20
§ 282(b)(22) ........................................................ 20
§ 913 ................................................................... 20
§ 1317(a)............................................................. 20
viii
§ 2000d, et seq. ................................................... 16
§ 3501 ................................................................. 19
§ 12101 ............................................................... 17
An Act to Establish the Department of
Justice, ch. 150, 16 Stat. 162 (1870) ........... 15–16
An Act to Establish the Judicial Courts of
the United States, ch. 20,
1 Stat. 73 (1789) .................................... 15, 20, 22
Regulations
28 C.F.R. § 0.50 ....................................................... 17
28 C.F.R., Subpart J ............................................... 17
Rules
Fed. R. Crim. P. 6(d) ............................................... 27
Sup. Ct. R. 37.3(a) ..................................................... 1
Sup. Ct. R. 37.6 ......................................................... 1
Other Authorities
1 Annals of Cong. (June 17, 1789).......................... 23
1 Blackstone, William, Commentaries on the
Laws of England (1765) .................................. 8–9
2 Records of the Federal Convention of 1787
(M. Farrand ed. 1911) ....................................... 14
3 Story, J., Commentaries on the
Constitution (1833)................................ 14–15, 22
30 Writings of George Washington
(John C. Fitzpatrick ed. 1939) ...................... 9–10
Amar, Akhil Reed, Intratextualism,
112 Harv. L. Rev. 747 (1999) ............................ 24
Amar, Akhil Reed,
Some Opinions on the Opinion Clause,
82 Va. L. Rev. 647 (1996) .................................... 9
ix
Anti-Federalist Nos. 76–77, An AntiFederalist View of the Appointing
Power Under the Constitution (Federal
Farmer XIII) (Jan. 14, 1788) in
2 Complete Anti-Federalist
(Storing 1981) .................................................... 14
Calabresi, Steven G. & Lawson, Gary,
Why Robert Mueller’s Appointment as
Special Counsel Was Unlawful,
95 Notre Dame L. Rev. 87 (2019) ................ 13–14
Comm. on Homeland Security & Gov. Affs.,
Policy and Supporting Positions (2016)............ 22
Corwin, Edward S., The President:
Office and Powers 1789–1984
(5th Rev. ed. 1984) ............................................. 11
DOJ Justice Manual,
https://www.justice.gov/jm/justicemanual (updated Apr. 2018) ................. 17–18, 27
Easterbrook, Frank H., Presidential Review,
40 Case W. Res. L. Rev. 905 (1990) .................. 21
The Federalist No. 72 (J. Cooke ed. 1961) ............. 10
HHS Organizational Chart,
https://www.hhs.gov/about/agencies/orgc
hart/index.html .................................................. 19
Mascott, Jennifer L.,
Who Are “Officers of the United States”?,
70 Stan. L. Rev. 443 (2018) ................... 4, 6, 9, 11
Office of Management and Budget, Analytical Perspectives, Budget of the U.S.
Government, Fiscal Year 2020 (2019) .............. 22
x
Officers of the U.S. Within the Meaning of
the Appointments Clause,
31 Op. O.L.C. 73 (2007) ..................................... 10
Patent Trial and Appeal Board,
Standard Operating Procedure 2
(Revision 10) (Sept. 20, 2018),
https://go.usa.gov/xwXem .................................. 29
Sholette, Kevin, Note, The American Czars,
20 Cornell J.L. Pub. Pol’y 219 (2010)................ 10
U.S. Department of Justice,
About the Division,
https://www.justice.gov/crt/about-division ....... 16
Wiener, Ross E., Inter-Branch Appointments
After the Independent Counsel: Court
Appointment of United States Attorneys,
86 Minn. L. Rev. 363 (2001) ........................ 27–28
1
IDENTITY AND INTEREST
OF AMICUS CURIAE1
Founded in 1973, PACIFIC LEGAL FOUNDATION is a
nonprofit, tax-exempt, California corporation established for the purpose of litigating matters affecting
the public interest. PLF provides a voice in the courts
for Americans who believe in limited constitutional
government, private property rights, and individual
freedom.
PLF is the most experienced public-interest legal
organization defending the constitutional principle of
separation of powers in the arena of administrative
law. PLF’s attorneys have participated as lead counsel
or counsel for amici in several cases involving the role
of the Judicial Branch as an independent check on the
Executive and Legislative branches under the Constitution’s Separation of Powers. See, e.g., Lucia v. SEC,
138 S. Ct. 2044 (2018) (SEC administrative-law judge
is “officer of the United States” under the Appointments Clause); U.S. Army Corps of Eng’rs v. Hawkes
Co., Inc., 136 S. Ct. 1807 (2016) (judicial review of
agency interpretation of Clean Water Act); Sackett v.
EPA, 566 U.S. 120 (2012) (same); Rapanos v. United
States, 547 U.S. 715 (2006) (agency regulations defining “waters of the United States”).
This case raises important questions concerning
the exercise of the “executive Power” of the United
1 Pursuant to this Court’s Rule 37.3(a), Counsel for all parties
provided blanket consent to the filing of amicus briefs. Pursuant
to Rule 37.6, Amicus Curiae affirms that no counsel for any party
authored this brief in whole or in part, and no counsel or party
made a monetary contribution intended to fund the preparation
or submission of this brief. No person other than Amicus Curiae,
its members, or its counsel made a monetary contribution to its
preparation or submission.
2
States. PLF offers a discussion of first principles that
should illuminate the Court’s review.
INTRODUCTION AND
SUMMARY OF ARGUMENT
The Court should hold that administrative patent
judges (APJs) on the Patent Trial and Appeal Board
are non-inferior officers who must be appointed by the
President, by and with the advice and consent of the
Senate. This is so because APJs exercise substantial,
discretionary, and final decision-making power in inter partes and post-grant reviews—authority comparable to that exercised by federal district court judges,
who are universally recognized to be non-inferior officers.
This proposed holding would conform to the Constitution’s original text and meaning, and to well-established historical practice: first, the Appointments
Clause recognizes more than just two simple categories of “inferior Officers” and non-inferior officers; and
second, distinctions among federal officers have depended on the nature and scope of their authority.
Amicus submits that the Appointments Clause contemplates three types of officers: principal officers
(chiefly the Heads of Departments, who exercise immense power, including broad discretion to (help the
President) establish policy and set priorities); superior officers (who exercise important powers but who
are subordinate to their respective department’s principal officer); and inferior officers (who perform
less-important governmental responsibilities and who
may be appointed by principal officers). In this taxonomy, APJs, like district court judges, are superior officers who require Presidential appointment with Senate confirmation (PAS appointment).
3
These distinctions among federal officials, if not
the terminology, are hardly novel. See Morrison v. Olson, 487 U.S. 654, 722 (1988) (Scalia, J., dissenting)
(“Even an officer who is subordinate to a department
head can be a principal officer.”). But they do call for
the Court to refine the direction-and-supervision
standard set forth in Edmond v. United States, 520
U.S. 651 (1997). There, the Court acknowledged that
judges of the Coast Guard’s Court of Criminal Appeals
(like the APJs here) exercised “significant” authority.
But it held that the exercise of “‘significant authority
pursuant to the laws of the United States’ marks, not
the line between principal and inferior officer,” but rather, “the line between officer and nonofficer.” Id. at
662 (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).
The judges’ exercise of “significant” authority meant
that they were officers; but, the Court held, because
their work was “directed and supervised at some level
by other[ officers] who were appointed by Presidential
nomination with the advice and consent of the Senate,” they were inferior officers. Id. at 663.
But if mere direction and supervision are sufficient
to render an officer “inferior,” then a vast array of officials who wield substantial governmental authority
and who have long been recognized as officers requiring PAS appointment—e.g., the Assistant Attorney
General for the Civil Rights Division, Ambassadors,
United States Attorneys, judges of the “inferior
Courts,” the FDA Commissioner, the PTO Director
here—would be deemed inferior officers. Under the
taxonomy offered above, these officers should be called
“superior” officers, a species of non-inferior officer.
This principal-superior-inferior ordering not only
conforms to historical practice, it also follows from the
4
authentic meaning of officer. Originally, the term “Officers of the United States” most likely encompassed
“all federal officials who perform an ongoing, statutory
duty—no matter how important or significant the
duty.” Lucia v. SEC, 138 S. Ct. 2044, 2056 (2018)
(Thomas, J., concurring) (emphasis added) (citing Jennifer L. Mascott, Who Are “Officers of the United
States”?, 70 Stan. L. Rev. 443, 454 (2018)). While this
definition appears to conflict with Edmond and Buckley, neither opinion defined “significant.” As explained
below, the term “significant” in this context should be
understood to mean sovereign, i.e., all “Officers of the
United States” exercise “[sovereign] authority” or
carry out a sovereign duty. Buckley, 424 U.S. at 126.
This definition faithfully tracks the authorities cited
in Buckley.
In sum, officers like APJs who exercise particularly important sovereign authority, but who are
nonetheless subordinate to Heads of Departments and
perhaps other high-level officers, are neither “principal” nor “inferior” officers—they are “superior” officers
requiring PAS appointment.
ARGUMENT
I.
ALL “OFFICERS OF THE UNITED STATES”
EXERCISE SOVEREIGN AUTHORITY
The Appointments Clause provides:
[The President] shall nominate, and by and
with the Advice and Consent of the Senate,
shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not
herein otherwise provided for, and which
5
shall be established by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper,
in the President alone, in the Courts of Law,
or in the Heads of Departments.
U.S. Const. art. II, § 2, cl. 2. The Clause expressly contemplates several types of officers—including the
President and Members of Congress (“all other Officers of the United States” whose appointments are
elsewhere provided for), Heads of Departments, this
Court’s Chief and Associate Justices, Courts of Law,
and “inferior Officers”—all of whom exercise different
kinds and varying levels of sovereign authority.
A. Officers of the United States exercise
“significant” authority—properly
defined
According to Edmond, the “exercise of ‘significant
authority pursuant to the laws of the United States’
marks, not the line between principal and inferior officer,” but rather, “the line between officer and nonofficer,” 520 U.S. at 662 (quoting Buckley, 424 U.S. at
126). Buckley declared that the term “Officers of the
United States” is “intended to have substantive meaning[,]” and that its “fair import is that any appointee
exercising significant authority pursuant to the laws
of the United States” is an “Officer of the United
States.” 424 U.S. at 126. But Buckley neither defined
“significant authority” nor discussed its content.2
Since then, the Court has suggested that “significant”
2 As in Edmond, the Court in Freytag v. Commissioner quoted
this language from Buckley but did not define “significant.” See
501 U.S. 868, 881 (1991) (quoting Buckley, 424 U.S. at 126). And
in Lucia, the Court declined the invitation to elaborate on its
meaning. 138 S. Ct. at 2051–52.
6
involves something more than ministerial. See, e.g.,
Edmond, 520 U.S. at 662 (not disputing that military
appellate judges, who review court-martial proceedings and may independently weigh evidence, exercise
“significant authority on behalf of the United States”);
Freytag, 501 U.S. at 881 (stating that “special trial
judges” in the U.S. Tax Court perform “more than
ministerial tasks”). Respectfully, this understanding
calls for refinement.
The term “Officers of the United States,” originally
understood, encompasses all federal employees who
have “an ongoing, statutory duty—no matter how important or significant the duty.” Lucia, 138 S. Ct. at
2056 (Thomas, J., concurring) (emphasis added) (citing Mascott, supra, at 454). See also United States v.
Hartwell, 73 U.S. (6 Wall.) 385, 393 (1867) (“An office
is a public station, or employment, conferred by the
appointment of government. The term embraces the
ideas of tenure, duration, emolument, and duties. The
employment of the defendant was in the public service
of the United States. He was appointed pursuant to
law, and his compensation was fixed by law. Vacating
the office of his superior would not have affected the
tenure of his place. His duties were continuing and
permanent, not occasional or temporary.”).
This original understanding of “officer” is consistent with cases cited in Buckley. There, the Court
relied on Auffmordt v. Hedden, 137 U.S. 310, 327
(1890), and United States v. Germaine, 99 U.S. (9
Otto) 508 (1878), for the proposition that non-officer
employees are “lesser functionaries subordinate to officers of the United States.” Buckley, 424 U.S. at 126
7
n.162.3 But neither Auffmordt nor Germaine held that
government officials exercising apparently insignificant power must be non-officers.
In Germaine, the Court explained that the term
“office” “embraces the ideas of tenure, duration, emolument, and duties, and that the latter were continuing and permanent, not occasional or temporary.” 99
U.S. at 511–12. The Court held that a surgeon was not
an officer because his “duties [were] not continuing
and permanent, and they [were] occasional and intermittent[;]” he acted “only . . . when called on by the
Commissioner of Pensions in some special case[;]” he
was “required to keep no place of business for the public use[;]” and “[n]o regular appropriation [was] made
to pay his compensation.” Id. The surgeon’s association with the government, in other words, was akin to
a contractual relationship.
Similarly, Auffmordt held that a “merchant appraiser” was not an officer because he was not a fulltime functionary; he was “selected for the special
case[,]” and he had “no general functions, nor any employment which ha[d] any duration as to time, or
which extend[ed] over any case further than as he
[was] selected to act in that particular case.” 137 U.S.
at 326–27. His position was “without tenure, duration,
continuing emolument, or continuous duties, and he
act[ed] only occasionally and temporarily.” Id. at 327.
Auffmordt itself cited several decisions which likewise demonstrate that the “significance” of an employee’s duties does not determine whether the employee is an officer. See 137 U.S. at 327 (citing United
3 Neither Buckley, nor Freytag, which quoted this passage from
Buckley, defined “lesser functionary.” See Freytag, 501 U.S. at
880 (quoting Buckley, 424 U.S. at 126 n.162).
8
States v. Maurice, 26 F. Cas. 1211, 1214 (Va. Cir. Ct.
1823); Hartwell, 73 U.S. at 393 (holding that clerk to
assistant treasurer in Boston was an officer); Germaine, 99 U.S. at 510, 511; Hall v. Wisconsin, 103 U.S.
(13 Otto) 5, 8 (1880) (The term “office” “embraces the
ideas of tenure, duration, emolument, and duties, and
… the latter were continuing and permanent, not occasional or temporary.”)).4 In Maurice, Chief Justice
Marshall, riding circuit, described an officer as one
who has a “continuing” duty “defined by rules prescribed by the government, and not by contract,” and
who has (non-contractual) duties that “continue,
though the person be changed.” 26 F. Cas. at 1214.
These and other early cases thus support the original meaning of “officer” as a federal functionary with
ongoing, statutory duties. See Myers v. United States,
272 U.S. 52 (1926) (postmaster first-class); Williams
v. United States, 168 U.S. 382 (1897) (“Chinese inspector” appointed by treasury department to assist enforcement of Chinese-exclusion laws); United States v.
Perkins, 116 U.S. 483 484–85 (1886) (“cadet engineer”
appointed by Secretary of the Navy); Germaine, 99
U.S. at 511 (describing as officers, “thousands of
clerks in the Departments of the Treasury, Interior,
and the othe[r]” departments); United States v. Moore,
95 U.S. (5 Otto) 760, 762 (1877) (“assistant-surgeon”);
Ex parte Hennen, 38 U.S. (13 Pet.) 230, 256–58 (1839)
(clerk of court). See also 1 William Blackstone, Commentaries on the Laws of England *328 (1765)
4 Auffmordt also cited United States v. Smith, 124 U.S. 525, 532
(1888), and United States v. Mouat, 124 U.S. 303, 307 (1888), but
these cases did not address the nature of an “office.” Rather, they
held that a person not appointed under the Appointments Clause
cannot be an officer.
9
(“[M]agistrates and officers” include “sheriffs; coroners; justices of the peace; constables; surveyors of
highways; and overseers of the poor.”).
It “is primarily” this Court’s “late twentieth century … opinions, and some court of appeals decisions
applying and extending those opinions, that seem to
diverge from the eighteenth century duty standard.”
Mascott, supra, at 464 (footnote omitted).
B. “Significant” authority denotes
sovereign authority—of varying
levels of importance
To cohere with the Constitution’s structural plan
for the federal government and the original meaning
of “Officers of the United States,” the term “significant
authority” should be understood as some portion of the
government’s sovereign powers.
The necessary delegation of executive power contemplated by the Constitution supports this definition. “The” executive power of the United States is
vested in “a” President. U.S. Const. art. II, § 1. This
President “shall take Care that the Laws be faithfully
executed[.]” Id., art. II, § 3. The President is thus “both
empowered and obliged” to do so. Akhil Reed Amar,
Some Opinions on the Opinion Clause, 82 Va. L. Rev.
647, 658 (1996). But the President cannot, of course,
personally execute all of the laws; he must “take Care”
that they be executed. Accordingly, he “must execute
them by the assistance of subordinates.” Myers, 272
U.S. at 117. These executive assistants, therefore, are
delegated the power to exercise—on the President’s
behalf—some portion of the executive power. See 30
Writings of George Washington 334 (John C. Fitzpatrick ed. 1939) (Because it is “‘impossib[le] that one
man should be able to perform all the great business
10
of the State,’ the Constitution provides for executive
officers to ‘assist the supreme Magistrate in discharging the duties of his trust.’”), as quoted in Free Enterprise Fund v. PCAOB, 561 U.S. 477, 483 (2010).
Therefore, as the Office of Legal Counsel has explained, “a position, however labeled, is in fact a federal office if (1) it is invested by legal authority with a
portion of the sovereign powers of the federal Government, and (2) it is ‘continuing.’” Officers of the U.S.
Within the Meaning of the Appointments Clause, 31
Op. O.L.C. 73, 73–74 (2007) (emphasis added). See
also The Federalist No. 72, at 487 (Hamilton) (J.
Cooke ed. 1961) (The “persons . . . to whose immediate
management these different [executive] matters are
committed, ought to be considered as the assistants or
deputies of the chief magistrate.”); Kevin Sholette,
Note, The American Czars, 20 Cornell J.L. Pub. Pol’y
219, 230 (2010) (arguing that Buckley “did not intend
to depart from the historical understanding of what
constitutes a public office” and, therefore, that “the
phrase ‘significant authority’ is best understood as expressing the idea that exercising any ‘sovereign authority’ is a significant duty”) (footnote omitted).
This understanding—that authority is “significant” simply if it involves the exercise of the sovereign
power of government—also comports with pre-revolutionary English appointment practice. For example, in
King v. Burnell, Carth. 478 (K.B. 1700), the Court of
King’s Bench concluded that a Censor (examiner) of
the College of Physicians was a public officer because
an “officer” is one “who hath any Part of the King’s
publick care delegated to him by the King.” Id. (emphasis added). Thus, “every Man is a publick Officer
who hath any Duty concerning the Publick;” and “he
is not the less a publick Officer where his Authority is
11
confined to narrow Limits, because ‘tis the Duty of his
Office, and the Nature of that Duty, which makes him
a publick Officer, and not the Extent of his Authority.”
Id. at 479 (emphasis added). See also Edward S. Corwin, The President: Office and Powers 1789–1984, at
85 (5th Rev. ed. 1984) (“Etymologically, an ‘office’ is an
officium, a duty; and an ‘officer’ was simply one whom
the King had charged with a duty.”).
Finally, this definition of “significant” authority as
sovereign authority supports the Framers’ goal of ensuring accountability for appointments. Given that
the modern administrative state “‘wields vast power
and touches almost every aspect of daily life,’” the
Framers’ concern for accountability is, if anything,
even more relevant than it was when the Constitution
was adopted. City of Arlington v. FCC, 569 U.S. 290,
313 (2013) (Roberts, C.J., dissenting) (quoting Free
Enterprise Fund, 561 U.S. at 499). Indeed, the “federal
government, in exercising authority over private parties, inherently wields so much power that, arguably,
anyone carrying out a statutory duty necessarily exercises ‘significant authority’ in some sense.” Mascott,
supra, at 464 (footnote omitted).5
5 The proper definition of “officer” means that “many employees
of the modern administrative state currently considered to hold
nonofficer positions should more properly be classified as ‘Officers of the United States’ subject to Art. II.” Mascott, supra, at
454. But that result would create no constitutional difficulty, because the efficiency, convenience, and utility of a law, “‘standing
alone, will not save it if it is contrary to the Constitution,’” for
“‘[c]onvenience and efficiency are not the primary objectives—or
the hallmarks—of democratic government.’” Free Enterprise, 561
U.S. at 499 (citations omitted). See also INS v. Chadha, 462 U.S.
919, 959 (1983) (explaining that there is “no support in the Constitution or decisions of this Court for the proposition that the
cumbersomeness and delays often encountered in complying
12
II.
THE DISTINCTIONS AMONG OFFICERS
DEPEND ON THE IMPORTANCE AND SCOPE
OF THEIR AUTHORITY
If “significant” is understood to mean sovereign,
then the Buckley-Edmond rule fully comports with the
original meaning of “Officers of the United States.”
But, as a result, something other than the exercise of
“significant”/sovereign authority must mark the line
between non-inferior and “inferior” officers. As explained below, that “something else” is, as revealed in
the Constitution’s text and related sources, and confirmed through long-established practice, the importance and scope of an officer’s responsibilities.
A. The Constitution recognizes that
“Officers of the United States”
exercise varying levels of sovereign
authority
The Appointments Clause references several officers. It specifically mentions ambassadors, other public
ministers and consuls, and the Justices of this Court.
U.S. Const. art. II, § 2, cl. 2. It recognizes “all other
Officers of the United States, whose Appointments are
not herein otherwise provided for,” id., such as the
President and officers of the Legislature, id., art. I,
§ 2, cl. 1 (election of Representatives); art. I, § 3, cl. 1
(selection of Senators); art. II, § 1, cl. 2–3 (election of
President). And it identifies Heads of Departments
and Courts of Law which, along with the President,
may be vested with authority to appoint “inferior Officers.” Id., art. II, § 2, cl. 2. Thus, the Appointments
with explicit Constitutional standards may be avoided, either by
the Congress or by the President”).
13
Clause contemplates several kinds of officers who exercise different kinds and varying levels of governmental authority.
More specifically, the Appointments Clause contemplates, along with inferior officers (who fill in
policy details delegated to them and supervise career
employees’ execution of administration policy), two
types of non-inferior executive officers: principal officers (Heads of Departments who set priorities for
their agencies and enforce those priorities directed by
the White House and supervise and manage the policy
formation in the department; together with superior
offices, they make the decisions on major departmentpolicy initiatives); and superior officers (responsible
for major policy decisions within their bureaus and divisions, detailed in statutes creating their divisions
and delegated by their superiors). See Steven G. Calabresi & Gary Lawson, Why Robert Mueller’s Appointment as Special Counsel Was Unlawful, 95 Notre
Dame L. Rev. 87, 135–38 (2019).
Although this taxonomy of different officers may
be unfamiliar, the divisions that it reflects are not.
First, the term “principal Officer” is found in the Opinions Clause, which provides that the President “may
require the Opinion, in writing, of the principal Officer
in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”
U.S. Const. art. II, § 2, cl. 1 (emphasis added). The definite article shows that each Executive Branch department has a single principal Officer. But this text does
not suggest—nor does text anywhere else in the Constitution suggest—that each department is limited to
a single non-inferior officer.
14
This understanding is consistent with the Framers’. During the Constitutional debates, Madison objected to what became the Appointments Clause because it did not allow Congress to vest appointment
powers in certain non-inferior, “Superior Officers below Heads of Departments.” 2 Records of the Federal
Convention of 1787, at 539 (M. Farrand ed. 1911) (emphasis added). See Calabresi & Lawson, supra, at 137.
The Federalist Papers, too, contemplate more than
two kinds of officers. See id. at 137–38 (summarizing
discussions in the Federalist Papers). No one at the
Convention suggested that each department would
have only one non-inferior officer.
The Anti-Federalist “Federal Farmer” criticized
the extent of the Constitution’s appointing power, noting “the vast numbers of officers necessary to execute
a national system in this extensive country,” including
officers on the supreme and inferior courts, admirals
and generals, “and subordinate officers in the army
and navy, ministers, consuls &c. sent to foreign countries; officers in the federal city, in the revenue, post
office departments, &c. &c.,” who “must, probably,
amount to several thousands, without taking into
view the very inferior ones.” Anti-Federalist Nos. 76–
77, An Anti-Federalist View of the Appointing Power
Under the Constitution (Federal Farmer XIII)
(Jan. 14, 1788) (emphasis added) in 2 Complete AntiFederalist, at 302 (Storing 1981).
Early commentators, too, recognized several types
of “officers.” See, e.g., 3 J. Story, Commentaries on the
Constitution, § 1526, at 378 (1833) (“It will be, principally, with regard to high officers, such as ambassadors, judges, heads of departments, and other appointments of great public importance, that the senate will
interpose to prevent an unsuitable choice.”) (emphasis
15
added); id. § 1530, at 387 (criticizing the “great anomaly” of patronage by the Postmaster General, whom
Congress vested with the power to appoint all “deputy
post-masters,” later described as “high executive appointments”).
B. Long-settled practice confirms that
superior officers—although not
Heads of Departments—exercise important power and wield substantial
discretion
Since the very first Congress, the government has
staffed executive departments with both inferior and
superior officers below the Heads of Departments. Superior officers were empowered with substantial authority and, as a result, Congress has required PAS
appointment—a “long settled and established practice” entitled to “great weight in a proper interpretation of constitutional provisions.” NLRB v. Noel Canning, 573 U.S. 513, 524 (2014) (cleaned up).
1. The Department of Justice
The first Congress created the office of Attorney
General and required him to “give his advice and opinion upon questions of law when required by the President.” An Act to Establish the Judicial Courts of the
United States, ch. 20, § 35, 1 Stat. 73, 93 (1789) (Judiciary Act). Congress also established an “attorney for
the United States” for each of the newly created districts. Id., 1 Stat. at 92. Later, Congress created the
Department of Justice and made the Attorney General its head. An Act to Establish the Department of
Justice, ch. 150, § 1, 16 Stat. 162, 162 (1870). This law
established another “officer,” the Solicitor General, to
assist the Attorney General, and “two other officers”
to assist both the Attorney General and the Solicitor
16
General. Id. § 2. This law, like the Judiciary Act, recognized that departments, each of which had a head,
also included superior and inferior officers: the Solicitor General, and all solicitors and assistant solicitors
“mentioned in this act,” were appointed by the President by and with the advice and consent of the Senate,
while all “other officers, clerks, and employees” in the
department were appointed (and removable) by the
Attorney General. Id. § 9, 16 Stat. at 163.
Today, the Attorney General remains head of the
Justice Department, 28 U.S.C. § 503, and is assisted
by a Deputy Attorney General, an Associate Attorney
General, the Solicitor General, and eleven Assistant
Attorneys General, id. §§ 504–506. These officers exercise significant power. For example, certain district
courts must summon grand juries upon a written certificate of necessity therefor from the Attorney General, the Deputy Attorney General, the Associate Attorney General, or a designated Assistant Attorney
General. 18 U.S.C. § 3331(a). And the government
may not “further prosecute” certain sentencing appeals “without the personal approval of the Attorney
General, the Solicitor General, or a deputy solicitor
general designated by the Solicitor General.” Id.
§ 3742(b).
Consider, more specifically, the Assistant Attorney
General for Civil Rights. This officer oversees eleven
separate sections (appellate, criminal, employment,
housing, etc.)6 that enforce “all Federal statutes affecting civil rights” (with certain exceptions left to the
criminal division), including the Civil Rights Act of
1964 (42 U.S.C. § 2000d, et seq.), the Americans with
See https://www.justice.gov/crt/about-division (last visited
Dec. 18, 2020).
6
17
Disabilities Act (Titles I-111, 42 U.S.C. § 12101), and
the Rehabilitation Act of 1973 (29 U.S.C. § 701,
et seq.). See also 38 U.S.C. § 4301, et seq. (job protections for employees absent because of military service), 20 U.S.C. § 1701 (equal-educational opportunity), 20 U.S.C. § 33, et seq. (ensuring educational
opportunities for students with disabilities), 20 U.S.C.
§ 1681, et seq. (prohibiting sex discrimination by educational institutions receiving federal funds), 42
U.S.C. § 45 (fair housing), 15 U.S.C. § 1691 (prohibiting credit discrimination). This officer is also obligated
to coordinate with the DOJ on “all matters” affecting
civil rights, and to consult with and assist federal,
state, and local departments and agencies on matters
affecting civil rights. 28 C.F.R. § 0.50. See generally 28
C.F.R., Subpart J. According to the DOJ’s Justice
Manual, the Civil Rights Division “retains the final
authority” to determine whether to open a civil-rights
investigation, file a complaint, or settle a matter. Justice Manual § 8-2.100.7
Similarly, each judicial district still has a United
States Attorney, an “officer” in the Justice Department. 28 U.S.C. § 541(a), (b). Among other responsibilities, U.S. Attorneys prosecute for all offenses of the
United States and prosecute or defend, for the government, all civil suits. Id. § 547(1), (2). U.S. Attorneys
are, of course, subject to the direction of the Attorney
General.8 But, as the DOJ’s Justice Manual explains,
Available here: https://www.justice.gov/jm/justice-manual
(updated Apr. 2018) (last visited Dec. 4, 2020).
8 See, e.g., 28 U.S.C. § 516 (“Except as otherwise authorized by
law, the conduct of litigation in which the United States, an
agency, or officer thereof is a party, or is interested, and securing
evidence therefor, is reserved to officers of the Department of
Justice, under the direction of the Attorney General.”); § 519
7
18
a U.S. Attorneys’ “statutory duty to prosecute for all
offenses against the United States (28 U.S.C. § 547)
carries with it the authority necessary to perform this
duty. The USA is invested by statute and delegation
from the Attorney General with the broadest discretion in the exercise of such authority.” Id. § 9-2.001
(emphasis added). See id. (noting U.S. Attorney,
“within his/her district, has plenary authority with regard to federal criminal matters[,] … exercised under
the supervision and direction of the Attorney General
and his/her delegates”).
All of these officers have ongoing, statutory duties
through which they wield a broad range of powers, exercise wide discretion, and help the Attorney General
and the President set government policy. Accordingly,
even though they are subordinate to the Attorney
General, they cannot be merely inferior officers. And,
consistent with long-standing practice, these officers
require PAS appointment. 28 U.S.C. §§ 504–506,
541(a).
Finally, the Attorney General is authorized to appoint inferior officers. See 18 U.S.C. § 542(a) (assistant
U.S. Attorneys); § 4041 (officers in Bureau of Prisons).
That is important because it shows that Congress
knows how to vest such power when it wants to.
Hence, Congress’s decision to require PAS appointment for many officer positions below that of the Attorney General is best understood as the recognition
of their superior-officer status.
(“Except as otherwise authorized by law, the Attorney General
shall supervise all litigation to which the United States, an
agency, or officer thereof is a party, and shall direct all United
States attorneys, assistant United States attorneys, and special
attorneys … in the discharge of their respective duties.”).
19
2. Health and Human Services
The Executive Branch is, of course, much larger
than it was at the Founding. Cf. Free Enterprise Fund,
561 U.S. at 520–21 (Breyer, J., dissenting) (describing
range of government powers and identifying delegations of these powers to “many different kinds of administrative structures,” including independent commissions, bureaus, offices, divisions, and agencies).
And, as Congress creates more superior officers, it
continues to require PAS appointment.9
Consider Health and Human Services, headed by
a Secretary and consisting of numerous offices and divisions.10 20 U.S.C. § 3508; 42 U.S.C. § 3501. Among
its divisions is the Food and Drug Administration,
charged with, among other responsibilities, “reviewing clinical research and taking appropriate action on
the marketing of regulated products in a timely manner.” 21 U.S.C. § 393(b)(1). The FDA must “ensure”
that “foods are safe, wholesome, sanitary, and
properly labeled” and that “human and veterinary
drugs are safe and effective.” Id. § 393(b)(2)(A), (B).
The FDA is headed by a Commissioner, through whom
the Secretary “shall be responsible for executing [the
Federal Food, Drug, and Cosmetic Act]” and for
“providing overall direction” to the FDA and “establishing and implementing general policies respecting
9 As this case reveals, Congress does not always require PAS
appointments for superior officers. But this anomalous practice
by Congress—allowing the President alone, Heads of Departments, or Courts of Law to appoint officers who exercise substantial powers—represents an exception to the long-standing practice required by the Constitution.
10
The HHS organizational chart may be found here:
https://www.hhs.gov/about/agencies/orgchart/index.html
(last
visited Nov. 24, 2020).
20
the [FDA’s] management and operation of programs
and activities.” Id. § 393(d)(1), (2)(A). The FDA Commissioner is not a mere “inferior” officer. And Congress properly requires PAS appointment to fill that
office, id. § 393(d)(1), as well as other superior offices
in HHS, see, e.g., 42 U.S.C. § 192 (Chief of Children’s
Bureau); § 205 (Surgeon General); § 282(a) (Director
of National Institutes for Health (NIH)); § 1317(a)
(Administrator of the Centers for Medicare & Medicaid Services).
In contrast to the PAS appointment required for
superior officers in HHS, Congress authorized the
HHS Secretary to appoint, among others, an Assistant
Chief of the Children’s Bureau, 42 U.S.C. § 193, “officers and employees … as may be necessary for carrying
out” the Secretary’s functions with respect to Social
Security, id. § 913, and health-care professionals at
NIH, id. § 282(b)(22). Again, as with DOJ, Congress’s
practice of vesting the department head with power to
appoint some sub-head (inferior) officers while reserving PAS appointment for other sub-head (superior) positions, reflects Congress’s recognition of the superiorofficer category.
3. The “inferior Courts”
Through the Judiciary Act, the first Congress established thirteen United States “districts” and, for
each, created a District Court, “to consist of one judge,
who shall reside in the district for which he is appointed.” Judiciary Act, ch. 20, § 3, 1 Stat. at 73. Today, there are 94 district courts with over 600 district
court judges—all still PAS officers. 28 U.S.C. §§ 132–
133.
21
District court judges are authorized to hear all
manner of disputes, including all cases involving federal questions; civil-rights claims; most actions for the
recovery or enforcement of fines, penalties, and forfeitures incurred under federal law; as well as supplemental jurisdiction over all other sufficiently related
state claims. 28 U.S.C. §§ 1331, 1355, 1367. District
courts also have original jurisdiction, “exclusive of the
courts of the states, of all offenses against the laws of
the United States.” 18 U.S.C. § 3231. And they have
the inherent power to manage their dockets for the orderly and expeditious disposition of cases. See Dietz v.
Bouldin, 136 S. Ct. 1885, 1891 (2016). Most importantly here, the Framers “crafted [Article III] with
an expressed understanding that it gives the Federal
Judiciary the power, not merely to rule on cases, but
to decide them, subject to review only by superior
courts in the Article III hierarchy.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218–19 (1995). A
court’s “judgment conclusively resolves the case because a ‘judicial Power’ is one to render dispositive
judgments.” Id. at 219 (quoting Frank H. Easterbrook,
Presidential Review, 40 Case W. Res. L. Rev. 905, 926
(1990)) (some quotation marks omitted).
Circuit court judges, too, wield vast powers. They
have appellate jurisdiction over final decisions of the
district courts (except for matters appealable directly
to this Court), 28 U.S.C. § 1291, and they may review
final administrative decisions, id. § 1296. Panel decisions become “law-of-the-circuit,” binding future panels and subordinate district courts. LaShawn A. v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc).
Accordingly, “from the early days of the Republic,
‘[t]he practical construction has uniformly been that
22
[judges of the inferior courts] are not … inferior officers.’” Weiss v. United States, 510 U.S. 163, 191 n.7
(1994) (Souter, J., concurring) (quoting 3 J. Story,
Commentaries on the Constitution 456 n.1 (1833)).
Finally, the Courts of Law, since the original Judiciary Act, have been authorized to appoint inferior officers. See Judiciary Act, ch. 20, § 7, 1 Stat. at 76 (authorizing this Court and district courts to appoint
clerks); 28 U.S.C. §§ 671–674 (authorizing this Court
to appoint clerks, marshal, reporter, librarian);
§§ 711, 713 (authorizing courts of appeals to appoint
clerks and librarians); 751 (authorizing district courts
to appoint clerks). Again, these authorizations reflect
Congress’s understanding that the above-discussed
PAS judicial officers are non-inferior.11
C. Edmond’s direction-and-supervision
standard is inadequate to distinguish
between inferior and non-inferior officers
The brief discussion above barely scratches the
surface of the federal government’s approximately
four million functionaries. Office of Management and
Budget, Analytical Perspectives, Budget of the U.S.
Government, Fiscal Year 2020, 73 (2019); Comm. on
Homeland Security & Gov. Affs., Policy and Supporting Positions (2016) (Plum Book). The discussion
nonetheless reveals that the government has always
11 While, as noted above (see fn. 5), many employees of the modern administrative state should be classified as inferior officers
rather than employees, the examples here show that many employees would remain classified as employees. For instance, this
Court’s clerk and librarian—both inferior officers—oversee staffs
of non-officer employees.
23
been staffed with many officers who, although subordinate to their respective Heads of Departments, exercise important powers and therefore require PAS
appointment.
To be sure, “[h]aving a superior officer is necessary
for inferior officer status,” but it is “not sufficient to
establish it.” Edmond, 520 U.S. at 667 (Souter, J., concurring in part and concurring in the judgment) (citing Morrison, 487 U.S. at 722 (1988) (Scalia, J., dissenting)). Indeed, Edmond’s “supervision and oversight” factor ignores the fact that all officers are supervised and subject to oversight. As Madison explained, the Framers wanted to ensure that “those
who are employed in the execution of the law will be
in their proper situation, and the chain of dependence
be preserved; 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., at 499 (June 17, 1789) (J. Madison).
Thus, the people supervise and oversee the President;
the President directly supervises and oversees the department heads; and, finally, the department heads
supervise and oversee superior and inferior (or “middle” and “lowest”) officers.
Emblematic of the misdirection inherent in Edmond’s direction-and-supervision standard is its focus
on removability. While removal authority is certainly
“a powerful tool for control,” Edmond, 520 U.S. at
663–64 (citations omitted), it says nothing about
whether a removable officer is inferior. In fact, the
more removable an officer, the more likely she is a
principal or superior officer. Cabinet members, the
highest-ranking officers in the Executive Branch below the President—and, as Heads of Departments,
24
principal officers—may be removed at will. Cf. Morrison, 487 U.S. at 716 (Scalia, J., dissenting) (“[M]ost (if
not all) principal officers in the Executive Branch may
be removed by the President at will.”). Indeed, this
Court recently emphasized that some executive officers exercise such important power that statutory limitations on their removal are invalid. Seila Law LLC
v. CFPB, 140 S. Ct. 2183, 2211 (2020) (“While we have
previously upheld limits on the President’s removal
authority in certain contexts, we decline to do so when
it comes to principal officers who, acting alone, wield
significant executive power.”). Thus, removability—
like the direction-and-supervision standard generally—is a poor guide to distinguish inferior from noninferior officers. See Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 805 (1999) (“If removability is the test (or even a prong of the test), then Cabinet members would be more ‘inferior’ than Independent Counsels. Yet surely heads of departments are not
‘inferior’ within the meaning of the Constitution.”).
In sum, if having a superior were sufficient to establish one as an inferior officer, all officers below a
Head of Department—which is to say all but a single
officer in each of the major federal departments—
would necessarily be “inferior” officers. That is a particularly untoward result, given that many such officers exercise substantial, discretionary, and policymaking powers—authority that this Court has recognized is fittingly subject to the heightened political accountability of PAS appointment.
25
D. The key distinction between superior
and inferior officers is the nature
and scope of their authority
To be consistent with the original meaning of “Officers of the United States” and the Nation’s “long settled and established practice,” Noel Canning, 573 U.S.
at 524 (cleaned up), the line separating superior and
inferior officers should be, not direction and supervision, but the nature and scope of an officer’s (ongoing,
statutory) authority. Two factors are particularly apposite: (1) the power to issue final decisions; and
(2) the authority to exercise substantial discretion in
carrying out responsibilities of high importance.
1. The power to issue final decisions
on behalf of the government may
be exercised only by superior and
principal officers
The most obvious “significant” authority exercised
by superior (and principal) officers is the power to
make final decisions within an Executive Branch department.
This Court has recognized that superior officers,
and not just the Heads of Departments, may issue final, binding decisions. In Edmond, the Court noted
that the Court of Appeals for the Armed Forces could
review and reverse decisions made by the Coast
Guard’s Court of Criminal Appeals and concluded
that, as a result of this “supervision and direction,” the
Coast Guard judges were inferior officers. 520 U.S. at
664–65. But the Armed Forces court itself is within
the Defense Department, id. at 664 n.2, and the head
of that department is the Secretary of Defense, 10
U.S.C. § 113(a). Therefore, even according to Edmond,
superior officers, although subordinate to Heads of
26
Departments, may be empowered to issue final decisions for the Executive Branch. 520 U.S. at 665.
Similarly, final rule-making power—which is, ultimately, the power to bind both the government and
individuals—is also reserved for superior officers. Cf.
Buckley, 424 U.S. at 140–41 (“[R]ulemaking ... represents the performance of a significant governmental
duty exercised pursuant to a public law .... [This function] may therefore be exercised only by persons who
are ‘Officers of the United States.’”); see also Ass’n of
Am. R.R. v. Dep’t of Transp., 821 F.3d 19, 39 (D.C. Cir.
2016) (a non-head-of-department arbitrator empowered to determine metrics and standards “through
binding arbitration” is a non-inferior officer).
2. The authority to exercise substantial discretion in carrying out responsibilities of high importance
may be exercised only by superior
and principal officers
Many officers in the federal government, although
their decisions are subject to direction and supervision
by the heads of their respective departments, nonetheless exercise broad powers with substantial discretion
on behalf of the federal government.
As discussed above, the Attorney General is head
of the Justice Department and is assisted by several
high-ranking officials who are empowered with significant discretion to assist the Attorney General—the
Deputy Attorney General, an Associate Attorney General, the Solicitor General, and eleven Assistant Attorneys General. See 28 U.S.C. §§ 503–506 (offices); 18
U.S.C. §§ 3331(a), 3742(b) (examples of superior officers’ substantial powers). Similarly, United States Attorneys make decisions whether to initiate criminal
27
investigations, conduct grand juries, and commence
criminal prosecutions. 28 U.S.C. § 547; Fed. R. Crim.
P. 6(d); Justice Manual §§ 9-2.001, 9-2.030, 9-11.241.
Thus, U.S. Attorneys are “inferior” only in the sense
that they are directed and supervised “at some level”
by PAS officers. Edmond, 520 U.S. at 663.
Principal and superior officers in the government
also have the power to impose fines and penalties,
subject to judicial review. See, e.g., 15 U.S.C. § 717t-1
(authorizing Securities and Exchange Commission to
impose civil penalties); 22 U.S.C. § 6761 (authorizing
ALJ to impose fine for willful failure to allow inspection related to chemical weapons).
Superior officials in many departments, subordinate to the department heads, are tasked with broad
portfolios, which often include helping to set government policy. See, e.g., 12 U.S.C. § 1(a) (Comptroller of
the Currency, within Treasury Department, charged
with “assuring the safety and soundness of, and compliance with laws and regulations, fair access to financial services, and fair treatment of customers by, the
institutions and other persons subject to [the office’s]
jurisdiction”); 21 U.S.C. § 393(d)(2)(A) (FDA Commissioner, through whom HHS Secretary is responsible
for “establishing and implementing general policies
respecting the [FDA’s] management and operation of
programs and activities”); 22 U.S.C. § 2651a(b)(2)
(Under Secretary of State for Arms Control and International Security); 35 U.S.C. § 3(a)(1) (PTO Director);
see also Ross E. Wiener, Inter-Branch Appointments
After the Independent Counsel: Court Appointment of
United States Attorneys, 86 Minn. L. Rev. 363, 383–84
(2001) (“In their capacity as the chief federal law enforcement officer in each judicial district, U.S. Attorneys exercise significant and largely independent
28
prosecutorial discretion on behalf of the federal government.”).
All of these examples reflect instances where Congress has invested officers with substantial (although
not always final) authority and, thus, appropriately
required PAS appointment, even though they are beneath their respective department (“principal”) heads.
III. ADMINISTRATIVE PATENT JUDGES ARE
SUPERIOR OFFICERS
The nature and scope of the APJs’ authority, together with the broad discretion they exercise, support the conclusion that APJs are superior officers under the Appointments Clause.
APJs, as members of the Patent Trial and Appeal
Board, review adverse decisions on patent applications and appeals of reexaminations, and conduct derivation proceedings, inter partes reviews, and postgrant reviews. 35 U.S.C. § 6(b). Inter partes review
may be initiated by anyone, who is not the owner of a
patent, through a petition to the PTO Director. Id.
§ 311(a). If the Director grants the petition, the dispute is resolved by a panel of at least three members
of the Board. Id. §§ 6, 314, 316(c). The panel conducts
an adversarial proceeding and then issues a written
decision on the patentability of the challenged claims.
Id. § 318(a). Disappointed parties may ask the Board
(alone) for reconsideration, id. § 6(c), or file an appeal
with the United States Court of Appeals for the Federal Circuit, id. §§ 141(c), 319.
Based on the factors identified above, it appears
that APJs are superior and not mere inferior officers.
First, APJs (as members of the Board) have the authority to issue final decisions on behalf of the Executive Branch. Neither the PTO Director, nor any other
29
officer in the Commerce Department (or anywhere
else in the Executive Branch) may reverse an inter
partes review decision. 35 U.S.C. §§ 141(c), 319.
Further, the power to issue these decisions in the
first place is sufficiently important, and the exercise
of discretion is sufficiently broad, that APJs should be
considered superior officers. APJs hear adversarial
proceedings and issue thousands of decisions a year,
Patent Trial and Appeal Board, Standard Operating
Procedure 2 (Revision 10) at 3 (Sept. 20, 2018),12 binding private parties who appear before them. And, as
several amici point out, the matters under dispute
have enormous impacts on the world’s economy. APJs’
duties are, in short, hardly the less-significant routine
matters reserved for inferior officers.
Rather, the APJs’ powers are comparable to the
powers of district court judges; both types of officer
may “determine actual controversies arising between
adverse litigants ….” Muskrat v. United States, 219
U.S. 346, 361 (1911). Indeed, the inter partes hearings
have “many of the usual trappings of litigation,” e.g.,
the “parties conduct discovery and join issue in briefing and at an oral hearing.” SAS Institute Inc. v.
Iancu, 138 S. Ct. 1348, 1354 (2018) (citations omitted).
“[T]he role of the modern federal hearing examiner or
administrative law judge within this framework is
‘functionally comparable’ to that of a judge.” Butz v.
Economou, 438 U.S. 478, 513 (1978). “His powers are
often, if not generally, comparable to those of a trial
judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make
or recommend decisions.” Id. (citation omitted). See
also Federal Maritime Comm’n v. S. Carolina State
12 See https://go.usa.gov/xwXem (last visited Dec. 7, 2020).
30
Ports Auth., 535 U.S. 743, 756 (2002) (noting “the numerous common features shared by administrative
adjudications and judicial proceedings”) (discussing
Butz).
These powers must be reserved for superior officers.
CONCLUSION
The Constitution establishes a three-tiered system
of officers: principals, superiors, and inferiors. The
mark of all such officials is that they execute ongoing,
statutory duties on behalf of the government. But the
distinguishing mark of principal and superior officers,
as non-inferior officers, is that they wield important
sovereign power. Thus, whether administrative patent judges must be appointed by the President following Senate confirmation should not depend on
whether and to what extent they are supervised and
directed in the executive hierarchy but, rather, on
whether, taking into account any such constraints, the
power they do exercise is nonetheless substantial. Because their power is substantial, APJs are superior officers.
DATED: December 2020.
Respectfully submitted,
D AMIEN M. S CHIFF
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
916.419.7111
dschiff@pacificlegal.org
O LIVER J. D UNFORD
Counsel of Record
Pacific Legal Foundation
4440 PGA Blvd., Ste. 307
Palm Beach Gardens, FL 33410
916.503.9060
odunford@pacificlegal.org
Counsel for Amicus Curiae Pacific Legal Foundation
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.