throbber
Nos. 19-1434, 19-1458
`
`
`
`IN THE
`pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
`
`
`
`
`
`UNITED STATES OF AMERICA,
`
`
`v.
`
`ARTHREX, INC., ET AL.,
`
`
`
`ARTHREX, INC.,
`
`v.
`SMITH & NEPHEW, INC., ET AL.,
`
`Petitioner,
`
`Respondents.
`
`Petitioner,
`
`Respondents.
`
`
`
`
`On Petitions For Writs Of Certiorari
`To The United States Court Of Appeals
`For The Federal Circuit
`
`
`
`BRIEF FOR RESPONDENTS
`SMITH & NEPHEW, INC. AND
`ARTHROCARE CORP.
`
`
`
`
`CHARLES T. STEENBURG
`NATHAN R. SPEED
`RICHARD F. GIUNTA
`WOLF, GREENFIELD & SACKS, P.C.
`600 Atlantic Avenue
`Boston, MA 02210
`(617) 646-8000
`
`MARK A. PERRY
` Counsel of Record
`KELLAM M. CONOVER
`BRIAN A. RICHMAN
`MAX E. SCHULMAN
`GIBSON, DUNN & CRUTCHER LLP
`1050 Connecticut Avenue, N.W.
`Washington, D.C. 20036
`(202) 955-8500
`MPerry@gibsondunn.com
`Counsel for Respondents
`Smith & Nephew, Inc. and ArthroCare Corp.
`(Additional Counsel Listed on Inside Cover)
`
`
`
`
`

`

`
`
`
`
`MARK J. GORMAN
`SMITH & NEPHEW, INC.
`7135 Goodlett Farms Parkway
`Cordova, TN 38016
`(901) 399-6903
`
`
`JESSICA A. HUDAK
`GIBSON, DUNN & CRUTCHER LLP
`3161 Michelson Drive
`Irvine, CA 92612
`(949) 451-3837
`
`Additional Counsel for Respondents
`Smith & Nephew, Inc. and ArthroCare Corp.
`
`
`
`
`
`
`
`
`

`

`
`
`QUESTIONS PRESENTED
`The questions presented in United States v. Ar-
`threx, Inc., No. 19-1434, are:
`1. Whether, for purposes of the Appointments
`Clause, U.S. Const. art. II, § 2, cl. 2, administra-
`tive patent judges of the U.S. Patent and Trade-
`mark Office are principal officers who must be ap-
`pointed by the President with the Senate’s advice
`and consent, or “inferior Officers” whose appoint-
`ment Congress has permissibly vested in a depart-
`ment head.
`2. Whether the court of appeals erred by ad-
`judicating an Appointments Clause challenge
`brought by a litigant that had not presented the
`challenge to the agency.
`The questions presented in Arthrex, Inc. v. Smith
`& Nephew, Inc., No. 19-1458, are:
`1. Whether the court of appeals’ severance
`remedy is consistent with congressional intent.
`2. Whether the court of appeals correctly held
`that the elimination of APJ tenure protections
`was sufficient to render APJs inferior officers.
`
`
`
`
`
`
`

`

`ii
`
`RULE 29.6 STATEMENT
`Pursuant to this Court’s Rule 29.6, respondents
`Smith & Nephew, Inc. and ArthroCare Corp. state
`that Smith & Nephew PLC is respondents’ parent
`corporation and no other publicly held corporation
`owns 10% or more of the stock of either respondent.
`
`
`
`
`
`

`

`iii
`
`TABLE OF CONTENTS
`
`Page
`BRIEF FOR RESPONDENTS .................................... 1
`
`I. THE COURT SHOULD GRANT THE
`GOVERNMENT’S PETITION ................................ 2
`
`A. The Federal Circuit’s Decision Is
`Wrong ....................................................... 2
`
`B. Arthrex’s Forfeiture Raises
`Important Issues ...................................... 3
`
`C. The Court Should Grant Certiorari
`In Polaris Only If It Reviews Both
`Of The Government’s Questions ............. 8
`
`II. THE COURT SHOULD GRANT ARTHREX’S
`PETITION ........................................................ 10
`
`A. APJs’ Removal Protections Are
`Presumptively Severable ....................... 11
`
`B. The Constitution Does Not Require
`Unilateral Review Of Individual
`Decisions ................................................. 14
`
`C. The Court Has A Variety Of Tools
`To Redress Any Constitutional
`Defect ...................................................... 15
`
`CONCLUSION .......................................................... 19
`
`
`
`

`

`iv
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Barr v. Am. Ass’n of Political Consultants, Inc.,
`No. 19-631, 2020 WL 3633780
`(U.S. July 6, 2020) .......................................... 13, 16
`
`In re Boloro Glob. Ltd.,
`963 F.3d 1380 (Fed. Cir. 2020) .............................. 3
`
`Buckley v. Valeo,
`424 U.S. 1 (1976) .................................................. 18
`
`Ciena Corp. v. Oyster Optics, LLC,
`958 F.3d 1157 (Fed. Cir. 2020) .............................. 5
`
`Edmond v. United States,
`520 U.S. 651 (1997) .............................................. 15
`
`Free Enter. Fund v.
`Pub. Co. Accounting Oversight Bd.,
`561 U.S. 477 (2010) ...................... 11, 12, 14, 16, 17
`
`Freytag v. Comm’r,
`501 U.S. 868 (1991) .......................................... 5, 15
`
`Hormel v. Helvering,
`312 U.S. 552 (1941) ........................................ 4, 5, 6
`
`Humphrey’s Ex’r v. United States,
`295 U.S. 602 (1935) .............................................. 12
`
`Lebron v. Nat’l R.R. Passenger Corp.,
`513 U.S. 374 (1995) ................................................ 9
`
`
`
`

`

`
`
`v
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Lucia v. SEC,
`138 S. Ct. 2044 (2018) ...................................... 7, 15
`
`Martin v. Franklin Capital Corp.,
`546 U.S. 132 (2005) ................................................ 5
`
`Myers v. United States,
`272 U.S. 52 (1926) ................................................ 11
`
`N. Pipeline Constr. Co. v.
`Marathon Pipe Line Co.,
`458 U.S. 50 (1982) ................................................ 18
`
`Oil States Energy Servs., LLC v.
`Greene’s Energy Grp., LLC,
`138 S. Ct. 1365 (2018) .................................... 13, 16
`
`Ramspeck v. Fed. Trial Exam’rs Conference,
`345 U.S. 128 (1953) .............................................. 12
`
`Ryder v. United States,
`515 U.S. 177 (1995) ................................................ 7
`
`Seila Law LLC v. CFPB,
`No. 19-7, 2020 WL 3492641
`(U.S. June 29, 2020) ................................ 11, 12, 13,
` 14, 16, 17
`
`Thryv, Inc. v. Click-To-Call Techs., LP,
`140 S. Ct. 1367 (2020) .......................................... 13
`
`
`
`

`

`
`
`vi
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`United States v. L.A. Tucker Truck Lines, Inc.,
`344 U.S. 33 (1952) .............................................. 4, 7
`
`Ward v. Vill. of Monroeville,
`409 U.S. 57 (1972) ................................................ 12
`
`Woodford v. Ngo,
`548 U.S. 81 (2006) .................................................. 4
`
`Zivotofsky ex rel. Zivotofsky v. Clinton,
`566 U.S. 189 (2012) ................................................ 9
`
`Statutes
`
`5 U.S.C. § 7513 .......................................................... 13
`
`28 U.S.C. § 1295 .......................................................... 3
`
`35 U.S.C. § 3 .................................................... 6, 13, 17
`
`35 U.S.C. § 6 .............................................................. 17
`
`35 U.S.C. § 143 .......................................................... 15
`
`35 U.S.C. § 318 .......................................................... 15
`
`35 U.S.C. § 319 .......................................................... 15
`
`Other Authorities
`
`Arthrex, Inc. v. ArthroCare Corp.,
`No. IPR2016-01877
`(P.T.A.B. filed Sept. 22, 2016) ............................... 6
`
`
`
`

`

`
`
`vii
`
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Arthrex, Inc. v.
`Bonutti Skeletal Innovations, LLC,
`No. IPR2013-00633, 2014 WL 1877931
`(P.T.A.B. May 6, 2014) ........................................... 6
`
`Arthrex, Inc. v. KFx Med., LLC,
`No. IPR2016-01697, 2018 WL 1100770
`(P.T.A.B. Feb. 26, 2018) ......................................... 6
`
`Arthrex, Inc. v. KFx Med., LLC,
`No. IPR2016-01698, 2018 WL 1128523
`(P.T.A.B. Feb. 26, 2018) ......................................... 6
`
`Arthrex, Inc. v. Vite Techs., Inc.,
`No. IPR2016-00381, Paper 15
`(P.T.A.B. Nov. 7, 2016) .......................................... 6
`
`Arthrex, Inc. v. Vite Techs., Inc.,
`No. IPR2016-00382, Paper 15
`(P.T.A.B. Nov. 7, 2016) .......................................... 6
`
`Pet. for Cert.,
`Polaris Innovations Ltd. v.
`Kingston Tech. Co., No. 19-1459
`(U.S. filed June 30, 2020) ................................ 9, 10
`
`Pet. for Cert.,
`Smith & Nephew, Inc. v.
`Arthrex, Inc., No. 19-1452
`(U.S. filed June 29, 2020) ..................... 1, 3, 4, 7, 8,
`9, 13, 14, 15
`
`
`
`

`

`
`
`BRIEF FOR RESPONDENTS
`
`The Federal Circuit held in this case that admin-
`istrative patent judges (APJs) are principal rather
`than inferior Officers of the United States; that sever-
`ing APJs’ statutory removal protections was sufficient
`to cure the Appointments Clause violation; and that
`the patent owner is entitled to a new hearing before
`different adjudicators notwithstanding its adminis-
`trative forfeiture. U.S. Pet. App. 22a, 28a–33a.
`All parties to that decision—the patent owner Ar-
`threx, Inc. (Arthrex), the challengers Smith &
`Nephew, Inc. and ArthroCare Corp. (S&N), and the
`United States as intervenor—have petitioned for
`writs of certiorari to review the Federal Circuit’s rul-
`ings. See Pet. for Cert., United States v. Arthrex, Inc.,
`No. 19-1434 (U.S. filed June 25, 2020) (“U.S. Pet.”);
`Pet. for Cert., Smith & Nephew, Inc. v. Arthrex, Inc.,
`No. 19-1452 (U.S. filed June 29, 2020) (“S&N Pet.”);
`Pet. for Cert., Arthrex, Inc. v. Smith & Nephew, Inc.,
`No. 19-1458 (U.S. filed June 30, 2020) (“Arthrex
`Pet.”). Although the parties have sought review of dif-
`ferent aspects of the Federal Circuit’s decision, S&N
`agrees that all three petitions should be granted.
`The government’s petition primarily challenges
`the Federal Circuit’s erroneous ruling that APJs are
`principal Officers. See U.S. Pet. 14–26. Its first ques-
`tion presented is substantively the same as S&N’s,
`and should be granted for the same reasons. Infra I.A.
`S&N also agrees that the ramifications of Arthrex’s
`forfeiture are important. Infra I.B. The government’s
`suggestion that this Court should review the decisions
`in both Arthrex and Polaris is well-taken only if the
`
`
`
`

`

`2
`
`Court reviews both questions presented in the govern-
`ment’s petition; otherwise, the Court should review
`only the Arthrex decision. Infra I.C.
`Arthrex devotes its petition to the consequences of
`the court of appeals’ ruling that APJs are principal Of-
`ficers. Arthrex Pet. 25–33. If the Court were to reach
`Arthrex’s first question presented, Arthrex has not es-
`tablished error in the Federal Circuit’s ruling that
`Congress would have preferred APJs without statu-
`tory removal protections to no APJs at all. Infra II.A.
`Arthrex’s second question—whether the Federal Cir-
`cuit cured any Appointments Clause violation by sev-
`ering APJs’ removal protections—is just another way
`of asking what distinguishes principal from inferior
`Officers. Infra II.B. And contrary to Arthrex’s view,
`this Court has a number of potential alternatives for
`prospectively “fixing” any constitutional problems.
`Infra II.C. Although S&N disagrees with the prem-
`ises of Arthrex’s arguments and with Arthrex’s pro-
`posed solutions, S&N does not dispute that these are
`important issues that should be decided, as and if nec-
`essary, after full briefing and argument.
`The Court therefore should grant all three peti-
`tions for writs of certiorari in the Arthrex case.
`I. THE
`COURT
`SHOULD GRANT
`THE
`GOVERNMENT’S PETITION.
`S&N agrees with the United States that the Court
`should review the Federal Circuit’s determination
`that APJs are principal Officers.
`A. The Federal Circuit’s Decision Is
`Wrong.
`The government’s first question presented is
`whether APJs are principal or inferior Officers under
`the Appointments Clause. U.S. Pet. I. This question
`
`
`
`

`

`3
`
`is substantively identical to the question presented by
`S&N’s separate petition for a writ of certiorari. See
`S&N Pet. i. And the arguments set forth in Part I of
`the government’s petition are congruent with the ar-
`guments in S&N’s petition. Compare U.S. Pet. 14–26,
`with S&N Pet. 14–27.
`S&N will not repeat the government’s arguments
`here, but does wish to emphasize that the multiple
`opinions entered upon the Federal Circuit’s denial of
`rehearing “both evince the need for definitive guid-
`ance from this Court and identify a range of potential
`analytic approaches for this Court’s consideration.”
`U.S. Pet. 16. The principal/inferior Officer distinction
`and its ramifications were well explored in the brief-
`ing and opinions in this case, and ought to be ad-
`dressed and resolved by the Court in this case.
`The Federal Circuit exercises exclusive jurisdic-
`tion
`over Board decisions,
`see 28 U.S.C.
`§ 1295(a)(4)(A), and that court has extended Arthrex
`(which arose in the context of inter partes review) to
`other types of post-grant review proceedings, see S&N
`Pet. 12, and, most recently, to ex parte examination
`appeals, In re Boloro Glob. Ltd., 963 F.3d 1380 (Fed.
`Cir. 2020). The decision below thus affects all aspects
`of patent practice reviewed by the Board. Because the
`underlying Appointments Clause issue will grow no
`better developed than it is now, the government’s first
`question presented clearly warrants review by this
`Court at this time.
`B. Arthrex’s
`Forfeiture
`Important Issues.
`The government’s second question presented is
`whether the court of appeals erred in excusing Ar-
`threx’s failure to raise its Appointments Clause chal-
`
`Raises
`
`
`
`

`

`4
`
`lenge before the Board. U.S. Pet. I. Arthrex’s forfei-
`ture gives rise to two distinct issues: (1) whether the
`court of appeals should have reached the merits of the
`constitutional challenge at all; and (2) whether Ar-
`threx is entitled to a new hearing before a different
`panel of APJs. S&N Pet. 31–33. The former issue is
`addressed by the government in the context of its sec-
`ond question presented, U.S. Pet. 26–33; in S&N’s
`view, the latter issue is subsumed within the govern-
`ment’s first question presented.
`1. The first forfeiture issue is whether the court
`of appeals should have reached the merits of Arthrex’s
`Appointments Clause challenge. See U.S. Pet. 29–30.
`Under established principles of forfeiture, the answer
`to that question is “no.” As the government explains,
`the court of appeals should not have “unwound the
`significant efforts of the agency and the litigants,” id.
`at 27, based on an objection that Arthrex failed to
`raise before the Board, id. at 29. The Federal Circuit’s
`contrary conclusion conflicts with this Court’s teach-
`ings and warrants review.
`a. This Court has long held that “‘courts should
`not topple over administrative decisions unless the
`administrative body not only has erred, but has erred
`against objection made at the time appropriate under
`its practice.’” Woodford v. Ngo, 548 U.S. 81, 90 (2006)
`(quoting United States v. L.A. Tucker Truck Lines,
`Inc., 344 U.S. 33, 37 (1952)); see also Hormel v. Helver-
`ing, 312 U.S. 552, 556–57 (1941) (“[o]rdinarily,” a
`court should not consider an issue “neither pressed
`nor passed upon by the . . . administrative agency be-
`low”). That “general rule” should have resolved this
`case and provides an independent basis to vacate the
`decision below. L.A. Tucker, 344 U.S. at 37; see U.S.
`Pet. 29.
`
`
`
`

`

`5
`
`To be sure, this Court has held that appellate
`courts have “discretion,” in some instances, to con-
`sider an Appointments Clause challenge not raised
`before the agency. Freytag v. Comm’r, 501 U.S. 868,
`879 (1991). The government recognizes as much, U.S.
`Pet. 30, and no party asks that Freytag be overruled.
`But “[d]iscretion is not whim.” Martin v. Franklin
`Capital Corp., 546 U.S. 132, 139 (2005). A court can-
`not “deviate” from the normal rules of forfeiture—as
`the Federal Circuit purported to do here, U.S. Pet.
`App. 4a—without first inquiring into the particular
`circumstances of each case. Even Freytag expressly
`cabined the authority to overlook administrative for-
`feiture to “rare cases,” 501 U.S. at 879, and the prece-
`dent on which it relied was limited to “exceptional
`cases or particular circumstances” where “injustice”
`would arise from applying the “[o]rdinar[y]” rule of
`forfeiture, Helvering, 312 U.S. at 556–57.
`b. The Federal Circuit nowhere undertook the
`case-specific inquiry mandated by this Court’s teach-
`ings. It did just the opposite: None of the justifica-
`tions it offered—the “important structural interests”
`implicated and the “wide-ranging effect on property
`rights”—involved Arthrex’s particular circumstances.
`U.S. Pet. App. 4a–5a. And the court of appeals has
`adopted a blanket policy of affording relief to all pa-
`tent holders (but not IPR petitioners) who “pre-
`sent[ed] an Appointments Clause challenge on ap-
`peal,” id. at 33a, regardless of whether such challenge
`had been preserved before the Board, U.S. Pet. 27; see
`also, e.g., Ciena Corp. v. Oyster Optics, LLC, 958 F.3d
`1157, 1159 (Fed. Cir. 2020).
`The particular circumstances of this case, more-
`over, do not remotely justify relieving Arthrex of the
`consequences of its forfeiture. Arthrex has repeatedly
`
`
`
`

`

`6
`
`sought inter partes review—including against a re-
`spondent in this case, see Arthrex, Inc. v. ArthroCare
`Corp., No. IPR2016-01877 (P.T.A.B. filed Sept. 22,
`2016)—and has even benefited from rulings by the ex-
`act panel of APJs who issued the Board’s decision be-
`low. Compare U.S. Pet. App. 60a, 83a (APJ panel in
`this case), with Arthrex, Inc. v. Vite Techs., Inc., No.
`IPR2016-00382, Paper 15 (P.T.A.B. Nov. 7, 2016)
`(same panel holding claims challenged by Arthrex to
`be unpatentable), and Arthrex, Inc. v. Vite Techs., Inc.,
`No. IPR2016-00381, Paper 15 (P.T.A.B. Nov. 7, 2016)
`(same).
`Arthrex can hardly cast itself as the “victim” of an
`administrative process it has employed, for years, to
`its own advantage. See, e.g., Arthrex, Inc. v. KFx Med.,
`LLC, No. IPR2016-01697, 2018 WL 1100770 (P.T.A.B.
`Feb. 26, 2018) (holding claims challenged by Arthrex
`unpatentable); Arthrex, Inc. v. KFx Med., LLC, No.
`IPR2016-01698, 2018 WL 1128523 (P.T.A.B. Feb. 26,
`2018) (same); Arthrex, Inc. v. Bonutti Skeletal Innova-
`tions, LLC, No. IPR2013-00633, 2014 WL 1877931
`(P.T.A.B. May 6, 2014) (entering judgment for Ar-
`threx). Accordingly, no “injustice” would result from
`subjecting Arthrex’s patent to the same procedures
`Arthrex has long invoked against patents owned by
`others. Helvering, 312 U.S. at 556–57.
`Raising the Appointments Clause challenge be-
`fore the Board would not have been “futile,” as the
`panel erroneously believed. U.S. Pet. App. 30a; see
`U.S. Pet. 32–33. For example, had Arthrex made a
`timely challenge, the Director could have assigned
`himself and the two Commissioners—who are all ef-
`fectively removable at will, see 35 U.S.C. § 3(a)(4),
`(b)(2)(C)—to preside over Arthrex’s case.
`
`
`
`

`

`7
`
`There is, in short, no reason to relieve Arthrex of
`its obligation to raise arguments in the same manner
`as other litigants and to suffer the same consequences
`for its forfeiture.
`2. The second issue raised by Arthrex’s forfeiture
`is what case-specific remedy, if any, Arthrex itself can
`receive in light of its failure to preserve its constitu-
`tional challenge before the agency. See U.S. Pet. App.
`32a–33a. The Court can address this issue whether
`or not it grants certiorari on the government’s second
`question. See S&N Pet. 32; cf. Lucia v. SEC, 138 S. Ct.
`2044, 2055 (2018) (addressing challenger-specific
`remedy after granting certiorari on merits of Appoint-
`ments Clause challenge).
`The remedy for a successful Appointments Clause
`challenge must be “appropriate” in light of the circum-
`stances of the particular case. Ryder v. United States,
`515 U.S. 177, 183 (1995). Even where a defect in an
`agency adjudicator’s appointment “would [have] in-
`validate[d] a resulting order . . . had . . . an appropri-
`ate objection [been] made during the [agency] hear-
`ings,” this Court has refused to “set aside” the adjudi-
`cator’s work in the absence of such a “timely objec-
`tion.” L.A. Tucker, 344 U.S. at 38.
`A new hearing before a different adjudicator is ap-
`propriate only for a party who makes a “timely” Ap-
`pointments Clause challenge. Lucia, 138 S. Ct. at
`2055; Ryder, 515 U.S. at 182; L.A. Tucker, 344 U.S. at
`38. Arthrex’s challenge was not “timely” because it
`was not pressed “before the [agency].” Lucia, 138
`S. Ct. at 2055; see also Ryder, 515 U.S. at 182. By nev-
`ertheless ordering a new hearing before a different ad-
`judicator, the Federal Circuit gave Arthrex an unde-
`served windfall, while imposing unwarranted burdens
`on both the Board (which adjudicated patentability on
`
`
`
`

`

`8
`
`the merits without objection) and S&N (which pre-
`vailed in that adjudication). Arthrex should therefore
`be limited to, at most, declaratory relief. S&N Pet.
`32–33.
`C. The Court Should Grant Certiorari In
`Polaris Only If It Reviews Both Of The
`Government’s Questions.
`The government suggests that the Court should
`review both Arthrex and Polaris. U.S. Pet. 33–34.
`S&N agrees that the Court should grant certiorari in
`both cases if (and only if) it elects to review both of the
`questions presented in the government’s petition.
`Otherwise, the Court should grant certiorari only in
`Arthrex.
`1. If the Court reviews both questions presented
`by the government, it should grant certiorari in both
`Arthrex and Polaris. As the government explains, “[i]f
`the Court granted review only in Arthrex, . . . it might
`not reach the Appointments Clause question because
`it might first address and reverse the Federal Cir-
`cuit’s decision to excuse Arthrex’s administrative for-
`feiture.” U.S. Pet. 33–34. Polaris thus would be
`needed as a backup vehicle to ensure the Court can
`decide next Term whether APJs are principal or infe-
`rior Officers. See ibid.
`Because Polaris would come into play in these cir-
`cumstances only if the Court were to reverse the Fed-
`eral Circuit’s decision to reach the merits of the Ap-
`pointments Clause issue despite Arthrex’s forfeiture,
`S&N respectfully submits that the Court should des-
`ignate Arthrex as the principal case. Whereas Arthrex
`involved five considered opinions exploring all aspects
`of that issue, see S&N Pet. 30–31, Polaris was dis-
`posed of by a per curiam summary order that cited to
`Arthrex, see U.S. Pet. 12.
`
`
`
`

`

`9
`
`2. If the Court reviews only one of the govern-
`ment’s two questions presented, there would be no
`need to grant certiorari in Polaris.
`Obviously, if the Court reviews only the govern-
`ment’s forfeiture question, there would be no reason
`to review Polaris because only “Arthrex presents both
`the constitutional and forfeiture issues,” while “Pola-
`ris presents only the Appointments Clause issue.”
`U.S. Pet. 33–34; see also S&N Pet. 33.
`If the Court reviews only the government’s princi-
`pal/inferior Officer question, there still would be no
`need to review Polaris. Arthrex squarely presents
`that issue, as well as a robust suite of competing deci-
`sions on that issue. Cf. Zivotofsky ex rel. Zivotofsky v.
`Clinton, 566 U.S. 189, 201 (2012) (preferring “the ben-
`efit of thorough lower court opinions to guide [the
`Court’s] analysis”). Polaris is redundant of Arthrex on
`the principal/inferior Officer question, and Arthrex is
`a manifestly better vehicle.
`Even though Arthrex failed to raise its Appoint-
`ments Clause challenge before the Board, that would
`be no obstacle to this Court’s ability to review that
`challenge. S&N Pet. 32. Because the Appointments
`Clause question was “‘addressed by the court below,’”
`this Court is “‘free to address it.’” Lebron v. Nat’l R.R.
`Passenger Corp., 513 U.S. 374, 379 (1995) (citation
`omitted). Moreover, because only “Arthrex presents
`. . . [the] forfeiture issue[ ],” U.S. Pet. 33, only Arthrex
`gives the Court the opportunity to decide what effect,
`if any, Arthrex’s forfeiture has on the remedy, see su-
`pra I.B.2.; S&N Pet. 32–34.
`Polaris also is redundant of Arthrex on the Fed-
`eral Circuit’s judicial “fix.” Compare Arthrex Pet. i,
`with Pet. for Cert. i, Polaris Innovations Ltd. v. King-
`ston Tech. Co., No. 19-1459 (U.S. filed June 30, 2020)
`
`
`
`

`

`10
`
`(“Polaris Pet.”) (presenting same two questions as Ar-
`threx). Polaris contends that Arthrex did not “pre-
`serve[ ] its objection to the Arthrex remedy.” Polaris
`Pet. 14–15. But in its supplemental brief before the
`panel below, Arthrex argued against severability on
`the basis that Congress would reject “a regime in
`which patent judges could be removed at will.” C.A.
`Dkt. 67 at 19. Arthrex thus is a better vehicle than
`Polaris—or any other case—for deciding the princi-
`pal/inferior Officer question and questions about the
`Federal Circuit’s “fix.”
`Accordingly, if the Court grants review on only
`one or the other of the questions presented in the gov-
`ernment’s petition, the best vehicle is Arthrex.
`II. THE COURT SHOULD GRANT ARTHREX’S
`PETITION.
`Arthrex’s petition presents two questions chal-
`lenging, respectively, the propriety and efficacy of the
`Federal Circuit’s decision to sever APJs’ for-cause re-
`moval protections. Arthrex Pet. i. Arthrex also pro-
`poses that the solution to any constitutional defect lies
`solely with Congress, and not this Court. Id. at 33–
`34. Of course, the Court need not address any of these
`issues if it concludes that APJs are inferior Officers.
`But if the Court were to hold that APJs are principal
`Officers, then it would be efficient to address the con-
`sequences of that ruling in the same case. Accord-
`ingly, S&N agrees that Arthrex’s petition should be
`granted—although S&N does not agree with Ar-
`threx’s positions on the merits.
`
`
`
`

`

`11
`A. APJs’ Removal Protections Are
`Presumptively Severable.
`Arthrex’s first question presented is whether the
`Federal Circuit erred in severing APJs’ statutory re-
`strictions on removal. Arthrex Pet. i.
`1. The power to remove an Officer is only “inci-
`dent to”—not determinative of—“the power of ap-
`pointment.” Myers v. United States, 272 U.S. 52, 110
`(1926). Thus, an official’s status as a principal or in-
`ferior Officer dictates what type of removal re-
`strictions are permissible, not the other way around.
`Where this Court has considered the constitutionality
`(and severability) of removal restrictions, therefore,
`the issue was always whether Congress’s imposition
`of those restrictions violated the separation of powers.
`See, e.g., Seila Law LLC v. CFPB, No. 19-7, 2020 WL
`3492641, at *9 (U.S. June 29, 2020); Free Enter. Fund
`v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477,
`508 (2010).
`If the Court concludes that APJs are inferior Of-
`ficers, Arthrex’s first question would be moot. As the
`Court recently reiterated, “certain inferior officers
`with narrowly defined duties” may be subject to one
`layer of for-cause removal protections. Seila Law,
`2020 WL 3492641, at *4; see also Free Enter. Fund,
`561 U.S. at 498. S&N submits that APJs fit comfort-
`ably within that category, and their removal protec-
`tions offend no separation-of-powers principles. There
`is thus nothing to sever.
`If, however, the Court were to conclude that APJs
`are principal Officers, then it would face whether Con-
`gress transgressed the separation of powers by afford-
`ing them limited protections from removal. Although
`principal Officers generally must be removable at will,
`this Court has recognized an exception for certain
`
`
`
`

`

`12
`
`multi-member adjudicatory bodies. Humphrey’s Ex’r
`v. United States, 295 U.S. 602 (1935); cf. Free Enter.
`Fund, 561 U.S. at 507 n.10 (not deciding constitution-
`ality of removal restrictions on ALJs who “perform ad-
`judicative rather than enforcement or policymaking
`functions”). More recently, however, the Court indi-
`cated its unwillingness to expand the Humphrey’s Ex-
`ecutor exception beyond the unique situation ad-
`dressed in that case. Seila Law, 2020 WL 3492641, at
`*10. Thus, if APJs are principal Officers, deciding
`whether their removal protections are unconstitu-
`tional would require the Court to enter “‘a field of
`doubt.’” Id. at *11 (quoting Humphrey’s Ex’r, 295 U.S.
`at 632).
`2. Assuming this Court reaches the severability
`question, Arthrex has not carried its burden of show-
`ing that the Federal Circuit’s decision to sever APJs’
`removal restrictions was inconsistent with congres-
`sional intent.
`Arthrex argues that severance is impermissible
`because APJs’ removal protections are “essential to
`independent and impartial adjudication.” Arthrex
`Pet. 24. S&N agrees that both the Administrative
`Procedure Act and the Due Process Clause ensure the
`neutrality of administrative adjudicators. See, e.g.,
`Ward v. Vill. of Monroeville, 409 U.S. 57, 61–62 (1972)
`(due process requires “neutral and detached” deci-
`sionmakers); Ramspeck v. Fed. Trial Exam’rs Confer-
`ence, 345 U.S. 128, 131 (1953) (noting the APA was
`enacted to prevent agency adjudicators from being
`“mere tools of the agency concerned”). But this Court
`has never held that removal protections are required
`to ensure such neutrality.
`
`
`
`

`

`13
`
`Unlike Article III judges, who are independent of
`the political branches by constitutional design, admin-
`istrative adjudicators—including APJs—“‘exercis[e]
`the executive power.’” Oil States Energy Servs., LLC
`v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1374
`(2018) (emphasis added; citation omitted). IPRs and
`other post-grant review proceedings provide the Exec-
`utive with “‘a second look at an earlier administrative
`grant of a patent,’” ibid. (citation omitted), and Con-
`gress elected to assign this second look “to the very
`same bureaucracy that granted the patent in the first
`place,” Thryv, Inc. v. Click-To-Call Techs., LP, 140 S.
`Ct. 1367, 1374 n.7 (2020). As a result, APJs are nec-
`essarily dependent on, and accountable to, the agency
`(and ultimately the President) in a variety of ways.
`See S&N Pet. 18–21; U.S. Pet. 18–22. And unlike ad-
`ministrative law judges in other agencies, APJs’ com-
`pensation and tenure are subject to control by their
`superiors. See, e.g., 5 U.S.C. § 7513(a); 35 U.S.C.
`§ 3(b)(6); S&N Pet. 20; U.S. Pet. 19.
`Contrary to Arthrex’s submission, the relevant
`question is not whether Congress intended APJs to be
`protected from removal. See Arthrex Pet. 24. Rather,
`the “critical question” is whether Congress would
`have passed the rest of the statute without the re-
`moval protections. Seila Law, 2020 WL 3492641, at
`*21 (plurality op.). In other words, Arthrex’s first
`question really asks whether the Federal Circuit
`erred in concluding that Congress “would have pre-
`ferred a Board whose members are removable at will
`rather than no Board at all.” U.S. Pet. App. 27a. The
`answer to that question is “no.”
`This Court has “developed a strong presumption
`of severability.” Barr v. Am. Ass’n of Political Con-
`sultants, Inc., No. 19-631, 2020 WL 3633780, at *8
`
`
`
`

`

`14
`
`(U.S. July 6, 2020) (plurality op.); see also id. at *9
`(“decisive preference” for severability). Indeed, the
`Court has twice decided to sever removal protections
`after finding them unconstitutional. Seila Law, 2020
`WL 3492641, at *21 (plurality op.) (CFPB Director);
`Free Enter. Fund, 561 U.S. at 508–10 (PCAOB mem-
`bers). Arthrex’s rejoinder is that “Congress’s long his-
`tory of providing tenure protections to administrative
`[adjudicators] was not at issue in Free Enterprise
`Fund or Seila Law. But it is the whole ball game
`here.” Arthrex Pet. 24 n.3. While Arthrex will lose
`that game, S&N does not dispute that it should be
`played.
`B. The Constitution Does Not Require
`Unilateral Review Of
`Individual
`Decisions.
`Arthrex’s second question presented is whether
`the Federal Circuit erred in concluding that severing
`APJs’ removal protections was sufficient to cure any
`Appointments Clause violation. Arthrex Pet. i. The
`body of Arthrex’s petition makes clear that its second
`question presented is the mirror image of the govern-
`ment’s first question and S&N’s sole question: What
`does it take to make—or, in Arthrex’s formulation, un-
`make—a principal Officer?
`Arthrex argues that an official can be an inferior
`Officer only if all of her decisions are subject to unilat-
`eral review by a principal executive Officer. Arthrex
`Pet. 25–28, 32–33. S&N and the United States have
`already explained why this position is wrong. S&N
`Pet. 22–24; U.S. Pet. 25–26. The Appointments
`Clause is about political accountability—not error cor-
`rection. This Court has never treated case-by-case re-
`view, or any other particular element of supervision,
`as dispositive. See S&N Pet. 21–23. To the contrary,
`
`
`
`

`

`15
`
`this Court has deemed as inferior Officers administra-
`tive adjudicators who cou

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