A federal judge in Washington D.C. has ruled that she lacks jurisdiction over a lawsuit by an administrative law judges' union claiming former President Donald Trump unlawfully stacked an obscure but powerful federal labor panel with anti-union lawyers.
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This is a brief review of some of the significant environmental (and administrative law decisions) released the past few weeks.
THE U.S. SUPREME COURT
Carr, et al. v. Saul and
AMG Capital Management v. Federal Trade Commission.
Carr, et al. v. Saul
In this case, the constitutionality of Social Security Administrative Law Judges (ALJs) hearing disability claims disputes was at issue. More precisely, were these ALJs selected in conformance with the Appointments Clause of the Constitution? A similar issue was litigated in the case of
Lucia v. Securities and Exchange Commission. There, the Court held that many of the agency’s ALJs were not selected in conformance with the Appointment’s Clause. Here, the Court held that this issue could be decided by the courts without compelling the litigants to first exhaust their administrative remedies. Thousands of ALJs are employed by the federal government, and it may take so
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The Supreme Court Term is winding down, with just one oral argument remaining and about two months before the last opinion release. Today, we’re checking in on the main Federal Circuit cases on the Court’s docket including one breaking-news update.
American Axle and Section 101
Today’s big development was in
American Axle & Manufacturing Inc. v. Neapco Holdings LLC, a case about patent eligibility under Section 101 (which we’ve discussed before). The Court called for the views of the Acting Solicitor General (a “CVSG”). That means the federal government will now weigh in on whether the Court should take up the questions here (about what subject matter is eligible for patenting and whether that issue is a question of law or fact).
Arthrex v. Smith & Newman, Inc., et al., 941 F.3d 1320 (Fed. Cir. 2019), because the appellant, Vivint, had forfeited its Appointments Clause challenge by not raising it in an earlier appeal of the case to the Federal Circuit where Vivint was also an appellant.
Vivint v. Alarm.com Inc., No. 2019-2438, 2019-2439 (Fed. Cir. Apr. 13, 2021).
Arthrex decision was not a change in law sufficient to create an exception to that forfeiture.
Vivint adds to a number of earlier Federal Circuit holdings finding parties had forfeited application of
Arthrex. It also reiterates that a party must raise an Appointment Clause challenge, if at all, before the first court who can provide it relief.
On April 30, 2021, in
National Association of Broadcast Employees & Technicians, 370 NLRB No. 114 (2021), the Board declined to opine on the validity of President Biden’s termination of former General Counsel Peter Robb and subsequent replacement with Acting General Counsel Peter Sung Ohr. It now sets the stage for a federal court of appeals – and potentially, the U.S. Supreme Court – to weigh in on the issue of whether Ohr’s appointment and his subsequent actions as Acting General Counsel are valid.
As we discussed here and here, Robb, who was in the last year of his four-year term, was terminated shortly after President Biden’s inauguration on January 20, 2021, after Robb refused to resign. Robb’s termination, and the subsequent appointment of Acting General Counsel Peter Sung Ohr, has been the basis of legal challenges in several cases before the Board. The parties challenging the appointment have argued that under Section 3(d) of the Act and the Appointments