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Arthrex, Inc. v. Smith & Nephew, 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: 4% cert probability

Before the decision, roughly the 4.1% base rate. The model weighted this up for counsel with five or more prior petitions here, a dissent in the court below (flagged in the petition), and a Federal Circuit decision below, and down for a business respondent.

Questions presented

Consolidated with 19-1934. The Appointments Clause requires principal officers to be appointed by the President with the advice and consent of the Senate, but permits inferior officers to be appointed by department heads. U.S. Const. art. II, §2. This case concerns the appointment of the Patent Office's administrative patent judges ("APJs"). APJs issue decisions that are not reviewable by any superior executive officer, and they are removable from office only for cause. Nonetheless, APJs are appointed by the Secretary of Commerce. The Federal Circuit held that, given their tenure protection and the absence of Executive Branch review, APJs are principal officers who cannot be appointed by the Secretary. The court purported to remedy the constitutional defect by severing APJs' tenure protections. The court deemed that change sufficient to render APJs inferior officers even though APJs still issue decisions that are not reviewable by any principal executive officer. The questions presented are:

  1. Whether the court of appeals' severance remedy is consistent with congressional intent, where Congress has long considered tenure protections essential to secure the independence and impartiality of administrative judges.

  2. Whether the court of appeals correctly held that the elimination of APJ tenure protections was sufficient to render APJs inferior officers, even though their decisions still are not reviewable by any principal executive officer.

Counsel of record

For petitioner
Jeffrey Alan Lamken
MoloLamken LLP

For respondent
Brian H. Fletcher
Acting Solicitor General

Case

Conference history
Distributed for 2 conferences

Amicus briefs
2 cert-stage

Related
Vide, 19-1434, 19-1452

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. Jan 25 2021
    Record requested from the U.S.C.A. for the Federal Circuit.
  5. Jan 14 2021
    CIRCULATED
  6. Dec 31 2020
    SET FOR ARGUMENT on Monday, March 1, 2021. VIDED.
  7. 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. 19-1452 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.
  8. 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.”
  9. Oct 05 2020
    DISTRIBUTED for Conference of 10/9/2020.
  10. Aug 12 2020
    DISTRIBUTED for Conference of 9/29/2020.
  11. Aug 11 2020
    Reply of petitioner Arthrex, Inc. filed. (Distributed)
  12. Aug 05 2020
    Brief amicus curiae of TiVo Corporation filed.
  13. Aug 04 2020
    Brief amicus curiae of US Inventor, Inc. filed.
  14. Jul 23 2020
    Brief of respondents Smith & Nephew, Inc., et al. filed. VIDED.
  15. Jul 22 2020
    Memorandum of respondent United States filed. VIDED.
  16. Jul 20 2020
    Blanket Consent filed by Respondents, Smith & Nephew, Inc., et al. VIDED
  17. Jul 20 2020
    Blanket Consent filed by Petitioner, Arthrex, Inc. VIDED
  18. Jul 20 2020
    Blanket Consent filed by Respondent, United States VIDED
  19. Jun 30 2020
    Petition for a writ of certiorari filed. (Response due August 5, 2020)