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The D..C. Circuit finally issued its decision in Fleming v. USDA today -- regarding the constitutionality of ALJs at the USDA: https://www.cadc.uscourts.gov/internet/opinions.nsf/31E37377F41B884F8525867E00561BA7/$file/17-1246-1885300.pdf
The D.C. Circuit appointed amicus to defend the constitutionality of ALJs back in December 2019, and held reargument in April 2020.
So those of us who follow agency adjudication have been anxiously waiting for this one. https://www.yalejreg.com/nc/the-supreme-court-decides-to-hear-arthrex-case-to-consider-appointments-clause-challenge-to-administrative-patent-judges/
So those of us who follow agency adjudication have been anxiously waiting for this one. https://www.yalejreg.com/nc/the-supreme-court-decides-to-hear-arthrex-case-to-consider-appointments-clause-challenge-to-administrative-patent-judges/
Not surprisingly, the panel unanimously agrees that under the #SCOTUS decision in Lucia v. SEC, ALJs are at least inferior officers (and the majority opinion says they are not principal officers -- not clear to me whether dissent joins that part of opinion).
But on the double-layer removal protection issue, the panel splits, with Judges Srinivasan and Katsas finding that petitioners had not properly exhausted the issue before the agency.
In dissent, Judge Rao argues that issue exhaustion shouldn't apply to bar judicial review of a structural constitutional question like this one, and she concludes that double-layer removal protections for ALJs are unconstitutional.
In this thread, @hannnahmmarie has more on the Fleming decision and has collected other reactions (including from #appellatetwitter footnote nerdiness from @smmarotta): https://twitter.com/hannnahmmarie/status/1361718764555931654
