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Smith & Nephew, Inc., et al. v. Arthrex, Inc., et al.

Paid petition · United States Court of Appeals for the Federal Circuit, No. 2018-2140 · judgment October 31, 2019

Decided · June 21, 2021
Pre-decision estimate: 8% cert probability (95% interval 5%–12%)

Before the decision, about 1.9× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a dissent in the court below (flagged in the petition), and a Federal Circuit decision below, and down for a business respondent.

Question presented

Consolidated with 19-1934. This Court has consistently held that first-line administrative adjudicators are Officers of the United States under the Appointments Clause. See Lucia v. SEC, 138 S. Ct. 2044, 2053 (2018); Freytag v. Comm'r, 501 U.S. 868, 881-82 (1991). With equal consistency, this Court has held that such adjudicators are "inferior" Officers, whose appointments may be vested in a Head of Department, rather than "principal" Officers, who must be nominated by the President and confirmed by the Senate. Edmond v. United States, 520 U.S. 651, 666 (1997). In this case, however, the Federal Circuit ruled that administrative patent judges of the Patent Trial and Appeal Board-whose functions are analogous to the adjudicators in Edmond, Freytag, and Lucia-are "principal" Officers whose statutory mode of appointment is unconstitutional. The question presented by this petition is: Whether administrative patent judges are "principal" or "inferior" Officers of the United States within the meaning of the Appointments Clause.

Counsel of record

For petitioner
Mark Andrew Perry
Weil, Gotshal & Manges, LLP

For respondent
Brian H. Fletcher
Acting Solicitor General

Case

Conference history
Distributed for 2 conferences

Amicus briefs
1 cert-stage

Related
Vide, 19-1434, 19-1458

Argument & decision

Argued March 1, 2021 — Malcolm L. Stewart · Mark A. Perry · Jeffrey A. Lamken. Audio and transcript

Decided June 21, 2021. Opinion by Roberts, C.J..

Proceedings

  1. Jul 23 2021
    JUDGMENT ISSUED.
  2. Jun 21 2021
    Judgment VACATED and case REMANDED. Roberts, C. J., delivered the opinion of the Court with respect to Parts I and II, in which Alito, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and an opinion with respect to Part III, in which Alito, Kavanaugh, and Barrett, JJ., joined. Gorsuch, J., filed an opinion concurring in part and dissenting in part. Breyer, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Sotomayor and Kagan, JJ., joined. Thomas, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined as to Parts I and II. VIDED.
  3. Mar 01 2021
    Argued. For United States: Malcolm L. Stewart, Deputy Solicitor General, Department of Justice, Washington, D. C. For Smith & Nephew, Inc., et al.: Mark A. Perry, Washington, D. C. For Arthrex, Inc.: Jeffrey A. Lamken, Washington, D. C. VIDED.
  4. Feb 24 2021
    The record from U.S.C.A. Federal Circuit is electronic and located on Pacer.
  5. Jan 25 2021
    Record requested from the U.S.C.A.Federal Circuit.
  6. Jan 14 2021
    CIRCULATED
  7. Dec 31 2020
    SET FOR ARGUMENT on Monday, March 1, 2021. VIDED.
  8. Oct 13 2020
    Petition GRANTED, the petition for a writ of certiorari in No. 19-1434 is granted as to Federal Circuit case No. 2018-2140, and the petition for a writ of certiorari in No. 19-1458 is granted, all limited to Questions 1 and 2 as set forth in the July 22, 2020 Memorandum for the United States. The cases are consolidated, and a total of one hour is allotted for oral argument. VIDED.
  9. Oct 13 2020
    Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 19-1434. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 19-1434. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
  10. Oct 05 2020
    DISTRIBUTED for Conference of 10/9/2020.
  11. Aug 14 2020
    Reply of petitioners Smith & Nephew, Inc., et al. filed. (Distributed)
  12. Aug 12 2020
    DISTRIBUTED for Conference of 9/29/2020.
  13. Aug 03 2020
    Brief amicus curiae of Comcast Cable Communications, LLC filed.
  14. Jul 24 2020
    Response to petition from respondent Arthrex, Inc. filed. VIDED.
  15. Jul 22 2020
    Memorandum of respondent United States filed. VIDED.
  16. Jul 20 2020
    Blanket Consent filed by Petitioners, Smith & Nephew, Inc., et al. VIDED
  17. Jul 20 2020
    Blanket Consent filed by Respondent, Arthrex, Inc. VIDED
  18. Jul 20 2020
    Blanket Consent filed by Respondent, United States VIDED
  19. Jun 29 2020
    Petition for a writ of certiorari filed. (Response due August 3, 2020)