Amicus Curiae Brief — Robert F. Kennedy, Jr., Secretary of Health and Human Services, et al., Petitioners v. Braidwood Management, Inc., et al.

No. 24-316

In the Supreme Court of the United States

_________

ROBERT F. KENNEDY, JR., SECRETARY OF

HEALTH AND HUMAN SERVICES, ET AL .,

Petitioners,

v.

BRAIDWOOD MANAGEMENT INC., ET AL .,

Respondents.

_________

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

_________

BRIEF OF PACIFIC LEGAL

FOUNDATION AS AMICUS CURIAE

IN SUPPORT OF RESPONDENTS

_________

J OSHUA M. R OBBINS

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

JRobbins@pacificlegal.org

MICHAEL POON

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

MPoon@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

TABLE OF CONTENTS

Table of Authorities .................................................... ii

Interest of Amicus Curiae ....................................... 1

Introduction and Summary of the Argument ............ 2

Argument ................................................................... 5

I.

Decisions binding the Executive Branch must

be made by a principal officer. ......................... 5

II.

A. The Appointments Clause establishes a

chain of command for Executive Branch

officers. ........................................................ 5

B. Binding decisions for the Executive Branch

made by inferior officers must be subject to

principal officer review ............................... 6

C. Removal is insufficient supervision for an

inferior officer who makes final, binding,

and unreviewable decisions........................ 9

Task Force members function as principal

officers without a proper appointment .......... 12

III. Lower courts have failed to apply Arthrex to

other Executive Branch adjudications. ......... 14

Conclusion ................................................................ 17

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Edmond v. United States,

520 U.S. 651 (1997) ........................... 5, 6, 7, 8, 10

Free Enterprise Fund v. PCAOB,

561 U.S. 477 (2010) ..................................... 10, 11

Gundy v. United States,

588 U.S. 128 (2019) ............................................. 1

Kisor v. Wilkie,

588 U.S. 558 (2019) ............................................. 1

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ............................................. 1

Lucia v. SEC,

585 U.S. 237 (2018) ............................................. 1

Manis v. U.S. Dep’t of Agric.,

731 F.Supp.3d 685 (M.D.N.C. 2024) ....... 2, 15, 16

McConnell v. U.S. Dep’t of Agric.,

No. 4:23-CV-24, 2023 WL 5963782

(E.D. Tenn. Sept. 13, 2023) ..................... 2, 15, 16

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) ............................................... 9

Sackett v. EPA,

566 U.S. 120 (2012) ............................................. 1

Sackett v. EPA,

598 U.S. 651 (2023) ............................................. 1

Seila L. LLC v. CFPB,

591 U.S. 197 (2020) ....................................... 1, 16

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) ............................................. 1

iii

United States v. Arthrex, Inc.,

594 U.S. 1 (2021) ........................ 2, 3, 5, 6, 7, 8, 9,

10, 11, 12, 13, 14, 15, 16

Whitman v. Am. Trucking Associations,

531 U.S. 457 (2001) ........................................... 14

Statutes

42 U.S.C. § 299(a) ................................................... 12

42 U.S.C. § 299b-4................................................... 13

42 U.S.C. § 299b-4(a) .............................................. 12

42 U.S.C. § 299b-4(a)(1) .......................................... 12

42 U.S.C. § 299b-4(a)(2) .......................................... 13

42 U.S.C. § 299b-4(a)(6) .................................... 12, 14

42 U.S.C. § 300gg-13 ............................................... 13

42 U.S.C. § 300gg-13(a)(1) ...................................... 13

42 U.S.C. § 300gg-13(b) .......................................... 13

42 U.S.C. § 300gg-22 ............................................... 13

Other Authorities

U.S. Const. art. II, § 2, cl. 2 ...................................... 5

INTEREST OF AMICUS CURIAE 1

Founded in 1973, Pacific Legal Foundation is a

nonprofit,

tax-exempt,

California

corporation

established to litigate matters affecting the public

interest. PLF provides a voice 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 attorneys have participated as lead counsel

or amici in several cases vindicating the individual

interests protected by the structural protections of the

Constitution and the legal principles that flow

therefrom.

See, e.g., Loper Bright Enters. v.

Raimondo, 603 U.S. 369 (2024); Sackett v. EPA, 598

U.S. 651 (2023) (application of Clean Water Act’ s

“waters of the United States” provision to wetlands);

Seila L. LLC v. CFPB, 591 U.S. 197 (2020) (restriction

on President’ s ability to remove CFPB Director); Kisor

v. Wilkie, 588 U.S. 558 (2019) (Auer deference); Gundy

v. United States, 588 U.S. 128 (2019) (nondelegation

doctrine); Lucia v. SEC, 585 U.S. 237 (2018) (SEC

administrative law judge is an “officer of the United

States” under the Appointments Clause); U.S. Army

Corps of Eng’rs v. Hawkes Co., 578 U.S. 590 (2016)

(judicial review of agency interpretation of Clean

Water Act); Sackett v. EPA, 566 U.S. 120 (2012)

(same).

No party ’s counsel authored any part of this brief. No person

or entity, other than Amicus Curiae and its counsel, paid for the

brief ’s preparation or submission.

1

2

More specifically, PLF litigates Appointments

Clause challenges to administrative adjudications.

See, e.g., McConnell v. U.S. Dep’t of Agric., No. 4:23CV-24, 2023 WL 5963782 (E.D. Tenn. Sept. 13, 2023);

Manis v. U.S. Dep’t of Agric., No. 24-1367 (4th Cir.).

This brief draws on that experience in support of the

Respondents’ position that the members of the U.S.

Preventative Services Task Force function as

principal officers without a proper appointment. It

presents a unique perspective tying together this

Court’ s recent cases on officer status to demonstrate

that principal officer review has been consistently

required for decisions by inferior officers that would

otherwise bind the Executive Branch. This review

requirement was recently affirmed in United States v.

Arthrex, Inc., 594 U.S. 1 (2021). This brief also points

to Appointments Clause challenges to Executive

Branch adjudications litigated by PLF in which lower

courts have ignored Arthrex and permitted

adjudications to proceed in the absence of principal

officer review.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

United States v. Arthrex, Inc., 594 U.S. 1, 23

(2021), established that only officers appointed as

principal officers could make final, binding, and

unreviewable adjudicative decisions for the Executive

Branch. This case provides the Court with an

opportunity to affirm its holding in Arthrex and

extend that rule to all final, binding, and

unreviewable decisions of the Executive Branch. For

inferior officers making decisions that bind the

Executive Branch, principal officer review is the

3

necessary means to ensure that the chain of command

established by the Appointments Clause is observed.

Arthrex considered the officer status of inferior

officer administrative patent judges (“APJ”) who

made binding decisions on patentability, but were

removal protected and could not have their decisions

reviewed by a principal officer. To determine the

APJs’ officer status, the Court evaluated whether they

were sufficiently directed and supervised by a

principal officer given the nature of their

responsibilities. The Court concluded that, in

adjudications, “[o]nly an officer properly appointed to

a principal office may issue a final decision binding

the Executive Branch.” 594 U.S. at 23. Because no

principal officer had the ability to review APJs’

decisions, the APJs were not sufficiently supervised

by a principal officer given their responsibilities. This

same logic can be extended to all binding decisions

made by inferior officers for the Executive Branch,

which cannot be countermanded without the

availability of principal officer review.

Petitioners emphasize the importance of at-will

removal as a supervisory tool. But when binding

decisions are at issue, the ability of a principal officer

to remove an inferior officer at will is insufficient

supervision without principal officer review. While

removal is an essential tool to ensure the faithful

execution of the laws, it does not sufficiently preserve

the Appointments Clause’s chain of command when

binding decisions are involved. That is so because

removal does not permit a principal officer to reverse

a final, binding decision of an inferior officer; it only

authorizes the termination of that inferior officer after

the fact. So, removal is ultimately ineffective at

ensuring that the binding decisions of the Executive

4

Branch are subject to the political accountability the

Appointments Clause requires.

Indeed, Arthrex

rejected the elimination of a removal restriction as

sufficient oversight for APJs, instead leaving the

removal protection in place and removing the

restriction on principal officer review.

At issue here are the members of the U.S.

Preventative Services Task Force who make final,

binding, decisions for the Executive Branch as to the

preventative services that private health insurers

must cover. But Task Force members are not

appointed as principal officers. 2 And Congress did not

provide a means for the Secretary to substantively

review the Task Force’s decisions. Arthrex effectively

decides that this arrangement violates the

Appointments Clause. Like the APJ decisions, Task

Force decisions are binding on the Executive Branch

and non-reviewable. As such, Arthrex requires that

the official making these decisions be appointed as a

principal officer. Since they are not, the Task Force

members are unconstitutionally appointed. The U.S.

Court of Appeals for the Fifth Circuit should be

affirmed on this point.

Should the Court decide that Arthrex does not

apply beyond Executive Branch adjudications, it

should still take this opportunity to clarify that final,

binding decisions in Executive Branch adjudications

must be made by a principal officer or subject to

principal

officer

review.

In

post-Arthrex

Appointments Clause challenges to administrative

adjudications, lower courts have cabined Arthrex to its

facts and relied on Edmond’s consideration of removal

Amicus does not take a position on whether Task Force

members were properly appointed as inferior officers.

2

5

and administrative oversight to uphold adjudication

schemes that lack the dispositive requirement of

principal officer review. Lower courts’ evasion of

Arthrex in adjudication cases should not be allowed to

continue.

ARGUMENT

I.

Decisions binding the Executive Branch

must be made by a principal officer

A. The Appointments Clause establishes a

chain of command for Executive Branch

officers

The Appointments Clause sets out the means of

appointment for Officers of the United States and in

doing so establishes a two-tiered chain of command.

The President is authorized to appoint “Officers of the

United States” with the “Advice and Consent of the

Senate”. U.S. Const. art. II, § 2, cl. 2. This is the

exclusive method of appointment for principal

officers—officers who wield substantial executive

power with no superior other than the President—and

the default method of appointment for all officers.

Arthrex, 594 U.S. at 12. The Appointments Clause

provides an alternative method of appointment for

inferior officers—less-powerful officers supervised by

principal officers. Id. at 12-13; Edmond v. United

States, 520 U.S. 651, 663 (1997). For inferior officers,

Congress may “vest the[ir] Appointment” “in the

President alone, in the Courts of Law, or in the Heads

of Departments.” U.S. Const. art. II, § 2, cl. 2.

The “clear and effective chain of command”

established by the Appointments Clause provides

legitimacy to the exercise of Executive Power and

ensures “accountability to the public.” Arthrex, 594

6

U.S. at 11 (citation omitted).

Legitimacy,

accountability, and quality are all essential for the

exercise of the significant authority for which all

officers are responsible. See Arthrex, 594 U.S. at 1112.

For the chain of command to be maintained “the

nature of [an officer’s] responsibilities” must be

“consistent with [his] method of appointment.”

Arthrex, 594 U.S. at 13. To evaluate this consistency,

the Court considers an officer’s method of

appointment with his functions and with the

supervision over him by other officers. See, e.g., id. at

13-18. “An inferior officer must be ‘directed and

supervised at some level by others who were

appointed by Presidential nomination with the advice

and consent of the Senate.’” Id. at 13. (quoting

Edmond, 520 U.S. at 663). The requisite level of

supervision for an inferior officer is determined by the

type of responsibilities the officer carries out. Ibid.

B. Binding decisions for the Executive

Branch made by inferior officers must be

subject to principal officer review

The officer-level function at issue in this case is

the issuance of decisions that bind the Executive

Branch. This type of decision was recently addressed

in Arthrex in the context of Executive Branch

adjudications.

Arthrex concluded that, in

adjudications, “[o]nly an officer properly appointed to

a principal office may issue a final decision binding

the Executive Branch.” 594 U.S. at 23. The logic of

Arthrex extends to all binding decisions of the

Executive Branch, making Arthrex the relevant rubric

for evaluating the sufficiency of supervision for any

officer making such decisions.

7

Arthrex considered the officer status of APJs in

the Patent and Trademark Office (“PTO”). Id. at 8.

APJs were PTO adjudicators appointed as inferior

officers by the Secretary of Commerce and authorized

to issue final, binding decisions for the Executive

Branch in adversarial inter partes patent review

proceedings. Id. at 8-9. APJs could only be removed

for cause. Id. at 17. And the PTO Director was

statutorily prohibited from reviewing the APJs’

patentability decisions. Id. at 14. The question before

the Court was whether the APJs were sufficiently

supervised by the principal officer PTO Director to

make binding decisions on patent validity as inferior

officers. Id. at 14-15.

To analyze this question, the Court turned to

Edmond, the source of the direction-and-supervision

test for determining whether an officer was a principal

or inferior officer. Arthrex, 594 U.S. at 13. Edmond

considered the inferior officer status of Coast Guard

Court of Criminal Appeals judges by reviewing

whether: (1) the judges were subject to procedural

rules or other administrative oversight mechanisms

controlled by a superior officer, (2) the judges were

removable at will, and (3) the judges’ decisions were

reviewed by a superior officer such that they could not

“render a final decision on behalf of the United States

unless permitted to do so by other Executive officers.”

520 U.S. at 664-65.

According to the Court, the Court of Criminal

Appeals judges were administratively overseen and

removable “without cause” by the Judge Advocate

General, and certain of their decisions were reviewed

by the Court of Appeals for the Armed Forces, which

was composed of principal officers. Ibid. This

arrangement provided sufficient supervision for the

8

judges to be constitutionally appointed as inferior

officers. Id. at 666. Among the three considerations,

“[w]hat [was] significant” for inferior officer status

was that the judges’ decisions were reviewable by a

principal officer. Id. at 665.

In Arthrex, the Court applied Edmond’s

conclusion that principal officer review was the

paramount factor for determining inferior officer

status, and made it a necessity for Executive Branch

adjudications. Arthrex, 594 U.S. at 14-18. Arthrex

singled out the availability of principal officer review

for the judges in Edmond as the key difference with

the APJs, noting that for APJs this “‘significant’”

factor was “absent.” Id. at 14. Therefore, because the

APJs’ decisions were not reviewable by the PTO

Director, the Court held that their final

decisionmaking authority was inconsistent with their

appointment as inferior officers. Id. at 14-15, 23.

The logic of Arthrex extends beyond inter partes

review adjudications to all officers and government

employees functioning as officers who make final,

binding, and unreviewable decisions for the Executive

Branch. 3 After all, the key feature of adjudicative

decisions that drove the outcome in Arthrex—their

binding nature on the Executive Branch—is not

limited to adjudications.

Legislative rules

promulgated through the Administrative Procedure

Act’s notice-and-comment rulemaking process

Arthrex declined to establish an “‘exclusive criterion’ for

distinguishing between principal and inferior officers” when

evaluating officers “outside the context of adjudication” where

“decisions by inferior officers do not bind the Executive Branch

to exercise power in a particular manner.” Id. at 23 (emphasis

added).

3

9

produce rules that have the “force and effect of law.”

Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015)

(citation omitted). And the Executive Branch is bound

by such rules, the same as the regulated party, until

the agency changes the rules through another round

of notice-and-comment rulemaking. See id. at 95. The

binding effect of these non-adjudicative final decisions

of the Executive Branch similarly necessitates they be

made by a principal officer. See Arthrex, 594 U.S. at

23.

The historical analysis in Arthrex confirms that its

logic extends beyond adjudications.

In 1792,

Alexander Hamilton, as Secretary of the Treasury,

announced the necessity of the principal officer ’s

“right to judge and direct”—in this case the customs

officials executing his instructions—to “ensur[e] that

‘the responsibility for a wrong construction rests with

the head of the department, when it proceeds from

him.’” 594 U.S. at 18-19. Additionally, an “[e]arly

congressional statute[]” subjected the issuance of

liquor licenses “‘to the superintendence, control and

direction of the department of the treasury’” thereby

“empower[ing a] department head[] to supervise the

work of [his] subordinates.” Id. at 19 (citation

omitted). Both examples reflect an early focus on

principal officer control of decisionmaking beyond

adjudications.

C. Removal is insufficient supervision for an

inferior officer who makes final, binding,

and unreviewable decisions

Petitioners emphasize at-will removal as the

“most potent” supervision mechanism for inferior

officers. Pet. Br. at 20. But while important, at-will

removal cannot replace principal officer review as a

10

necessary supervisory tool for an inferior officer to

issue binding decisions. See Arthrex, 594 U.S. at 26

(Roberts, C.J., plurality opinion). Principal officer

review ensures that the “chain of command”

established by the Appointments Clause in these

circumstances is maintained by providing the

principal officer a “means of countermanding” an

inferior officer ’s decision. Id. at 16, 18. In contrast,

removal is a blunt instrument that can only be used

after the fact without effect on the inferior officer ’s

decisions. See id. at 16-17.

This Court has consistently reasoned that

removal does not provide sufficient supervision for an

inferior officer to make binding decisions without

review by a principal officer.

Edmond itself

“recognized” removal as “a powerful tool for control”

over the inferior officer judges. 520 U.S. at 664. But

the Court acknowledged that this control was “not

complete.” Ibid. The Judge Advocated General with

at-will removal power was prohibited from influencing

the judges’ decisions through threats of removal and

“ha[d] no power to reverse decisions of the court.”

Ibid. So, Edmond went on to evaluate whether there

was a principal officer who had review authority. Id.

at 664-65. Only after the Court determined there was

did it conclude that the judges were properly

appointed as inferior officers. Id. at 665-66.

Free Enterprise Fund v. PCAOB, 561 U.S. 477,

485, 510 (2010), reapplied the relevance of principal

officer review to the Public Company Accounting

Oversight Board that issued rules and conducted its

own disciplinary proceedings. There, the Court had

“no hesitation in concluding that under Edmond the

Board members [were] inferior officers” based on the

ability of the Securities and Exchange Commission

11

(i.e., principal officers) to remove them at will and

“given the Commission ’s other oversight authority.”

561 U.S. at 510 (emphasis added). That other

authority included the ability of the Commission to

approve or alter the rules issued by and the sanctions

imposed by the Board—in other words, principal

officer review. Id. at 486, 504.

Arthrex continued this line of precedent. In

holding that the APJs were functioning without a

proper

appointment,

the

Court

repeatedly

emphasized that the primary consideration for

inferior officer status was whether they could issue

binding decisions without review by anyone in the

Executive Branch. Arthrex, 594 U.S. at 14; id. at 17

(APJ power “conflicts with the design of the

Appointments Clause” because of “the insulation of

[their] decisions from any executive review”); id. at 23

(“[T]he unreviewable authority wielded by APJs . . . is

incompatible with their appointment by the Secretary

to an inferior office.”); id. at 27 (Roberts, C.J., plurality

opinion) (“The Constitution [] forbids the enforcement

of statutory restrictions on the Director that insulate

the decisions of APJs from his direction and

supervision.”).

The Court’s remedy in Arthrex confirmed the

necessity of principal officer review for binding

decisions. While below, the U.S. Court of Appeals for

the Federal Circuit decided to eliminate the removal

restriction on APJs, this Court disagreed and instead

eliminated the statutory restriction on principal

officer review. Id. at 24-26 (Roberts, C.J., plurality

opinion). It adopted this remedy because “review by

the Director better reflects the structure of

supervision within the PTO and the nature of APJs’

duties.” Id. at 26; see also id. at 27 (“[T]he source of

12

the constitutional violation is the restraint on the

review authority of the Director.”). Notably, the Court

left the APJs’ removal restriction in place. Id. at 26.

Three of the dissenting Justices concurred in this

remedy, agreeing with the majority that the

“statutory scheme is defective only because the APJ ’s

decisions are not reviewable by the Director alone.”

Id. at 44 (Breyer, J., concurring in part and dissenting

in part). This remedy is all but conclusive that,

without principal officer review, removal is

insufficient supervision for an inferior officer making

binding decisions.

II. Task Force members function as principal

officers without a proper appointment

At issue here is the application of Arthrex to the

members of the Task Force. The Task Force is nested

within the Department of Health and Human Services

as part of the Public Health Service’s Agency for

Healthcare Research and Quality (“AHRQ”). Pet. Br.

at 5. The Task Force is “convene[d]” by the Director

of AHRQ, 42 U.S.C. § 299b-4(a)(1), who is appointed

by the Secretary, id. § 299(a). There is no statutory

restriction on members’ removal. See id. § 299b-4(a).

The Task Force is responsible for developing

recommendations for “best practice” in clinical

preventative services based on the “effectiveness,

appropriateness, and cost-effectiveness” of such

services. Id. § 299b-4(a)(1). These recommendations

are “published in the Guide to Clinical Preventative

Services.” Ibid. Congress also required that the Task

Force members and their recommendations “be

independent and, to the extent practicable, not subject

to political pressure. Id. § 299b-4(a)(6).

13

In 2010, Congress enacted the Affordable Care

Act, which established for health insurers minimum

coverage requirements for preventative services. 42

U.S.C. § 300gg-13.

Among the services health

insurers were required to cover were those given “a

rating of ‘A’ or ‘B’” by the Task Force, making Task

Force recommendations binding decisions of the

Executive Branch for purposes of the coverage

requirement. Id. § 300gg-13(a)(1). Congress also

empowered the States to impose these coverage

requirements on health insurers and the Secretary of

Health and Human Services to impose civil money

penalties on plans that fail to meet them. 42 U.S.C.

§ 300gg-22. The Task Force recommendations are the

law health insurers must follow and the Executive

Branch must enforce until the Task Force undertakes

another review to update its recommendations. See

42 U.S.C. § 299b-4(a)(2).

Congress granted the

Secretary only a limited role in these decisions to

“establish a minimal interval” between the date of the

Task Force’s recommendation and its effective date for

the coverage mandate. 42 U.S.C. § 300gg-13(b).

This arrangement violates the Appointments

Clause because Task Force members are making

binding decisions for the Executive Branch with

neither a principal officer appointment nor the

availability of principal officer review. See Arthrex,

594 U.S. at 23. It is indisputable that Task Force

members are not appointed as principal officers

because they are “convene[d]” by the AHRQ Director.

42 U.S.C. § 299b-4. The Secretary is also statutorily

foreclosed from substantively reviewing the binding

Task Force recommendations. See id. § 300gg-13(b).

Congress included no substantive review mechanism

for the Secretary. Id. The fact that Congress

14

proscribed a role for the Secretary in setting the

timing of the recommendations’ effective date

demonstrates that this was intentionally omitted. See

Whitman v. Am. Trucking Associations, 531 U.S. 457,

471 (2001).

This conclusion is reinforced by

Congress’ s pre-ACA command that Task Force

members and their recommendations “shall be

independent and, to the extent practicable, not subject

to political pressure.”

42 U.S.C. § 299b-4(a)(6).

Through these two statutes, Congress designed the

Task Force to be free of political influence through

review of its recommendations by the Secretary, and

Congress maintained that design when it made Task

Force recommendations binding on health insurers

without review by the Secretary.

Without principal officer review, removal is

insufficient supervision for the non-principal officer

Task Force members to make binding decisions for the

Executive Branch. See Arthrex, 594 U.S. at 23. The

Secretary has no ability to countermand the binding

decisions of the Task Force members, the essential

supervisory mechanism under these circumstances.

Id. at 16-17; see also supra Part I.C. So, the Task

Force members themselves are issuing “final

decision[s] binding the Executive Branch,” a function

that “[o]nly an officer properly appointed to a principal

office may” do. Arthrex, 594 U.S. at 23. This structure

violates the Appointments Clause. See ibid.

III. Lower courts have failed to apply Arthrex to

other Executive Branch adjudications

Even if the Court concludes that Arthrex is

inapplicable to the Task Force, it should preserve and

clarify its applicability to Executive Branch

adjudications. 594 U.S. at 19-23. When Arthrex

15

reserved for future cases the establishment of a

criterion for inferior officer status, it specifically

referred to cases “outside the context of adjudication.”

Id. at 23. Arthrex referred to principal officer review

as the “traditional rule” for adjudication.” Id. at 21.

And during the oral argument, the government

acknowledged that “it ‘certainly is the norm’ for

principal officers to have the capacity to review

decisions made by inferior adjudicative officers.” Id.

at 20. Arthrex at least stands for the proposition that

final, binding decisions in Executive Branch

adjudications must be made or subject to review by a

principal officer. Id. at 23.

Since Arthrex, lower courts have failed to apply

the requirement of principal officer review of

otherwise binding decisions to other Executive Branch

adjudications. For example, in Appointments Clause

challenges to the structure of U.S. Department of

Agriculture (“USDA”) adjudications of alleged

violations of the Horse Protection Act, two district

courts have upheld the final, binding decisionmaking

authority of USDA ’s Judicial Officer—who was not

appointed as a principal officer—while acknowledging

the unavailability of principal officer review.

McConnell v. U.S. Dep’t of Agric., No. 4:23-CV-24,

2023 WL 5963782, at *4 (E.D. Tenn. Sept. 13, 2023);

Manis v. U.S. Dep’t of Agric., 731 F.Supp.3d 685, 69293 (M.D.N.C. 2024), appeal docketed, No. 24-1367 (4th

Cir. Apr. 25, 2024). 4

McConnell concluded that the Secretary of

Agriculture ’s administrative oversight over and

ability to remove at will the Judicial Officer was

4 Pacific Legal Foundation was counsel for the plaintiff in each

case.

16

sufficient supervision for the Judicial Officer not to

have received a principal officer appointment. 2023

WL 5963782, at *3-4. The court concluded that

because Arthrex had not overruled Edmond, it could

rely on these two factors considered by Edmond in the

absence of principal officer review. Id. at *4. Manis

reached a similar conclusion that administrative

oversight and removability were sufficient without

principal officer review because Edmond was still

good law. 731 F.Supp.3d at 692-93.

But Arthrex did not apply Edmond as a strict

three-factor test for Executive Branch adjudications

such that lower courts can simply weigh them up caseby-case. Arthrex, 594 U.S. at 13, 23. Both the majority

and the dissent in Arthrex described the Edmond test

as the broad principle that “[a]n inferior officer must

be ‘directed and supervised at some level by others

who were appointed by Presidential nomination with

the advice and consent of the Senate.’” Arthrex, 594

U.S. at 13; id. at 49 (Thomas, J., dissenting); see also

Seila L., 591 U.S. at 217 n.3 (“More recently, we have

focused on whether the officer ’s work is ‘directed and

supervised’ by a principal officer.”). Arthrex applied

this broad test to an Executive Branch adjudication

and concluded, consistent with Edmond, that inferior

officers who make otherwise binding decisions for the

Executive Branch must have those decisions reviewed

by a principal officer. Arthrex, 594 U.S. at 14-15; see

also supra Part I.B & C. The Court should take this

opportunity to clarify its holding in Arthrex that final,

binding decisionmaking in adjudications requires a

principal officer or review of the decision by a

principal officer to avoid further confusion in the lower

courts.

17

CONCLUSION

For the above reasons, the Court should affirm the

Fifth Circuit’s judgment as to the officer status of the

Task Force members.

Respectfully submitted,

J OSHUA M. R OBBINS

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

Telephone: (202) 888-6881

JRobbins@pacificlegal.org

MICHAEL POON

Counsel of Record

Pacific Legal Foundation

555 Capitol Mall

Suite 1290

Sacramento, CA 95814

Telephone: (916) 419-7111

MPoon@pacificlegal.org

Counsel for Amicus Curiae

Pacific Legal Foundation

M ARCH 2025