Supreme Court Excuses Administrative Exhaustion for Some Structural Constitutional Claims

Jones Day

Jones Day

In Carr v. Saul, the U.S. Supreme Court unanimously held that a party can raise a challenge under the Constitution’s Appointments Clause to an Administrative Law Judge’s (“ALJ”) decision, even if the party did not raise the issue at the ALJ hearing. Although Carr involved Social Security benefits, the Supreme Court’s decision sheds light on how litigants can bring structural constitutional challenges to agency decisions more generally.

The decision in Carr may have its most immediate impact in connection with the administrative process for post-grant patent reviews before the U.S. Patent and Trademark Office’s Patent Trial and Appeals Board. The Court presently has another case on its docket involving an Appointments Clause challenge to the appointment of Patent Office ALJs, Arthrex, Inc. v. Smith & Nephew, Inc., No. 19-1434 (argued March 1, 2021). In that case, the Court of Appeals for the Federal Circuit ruled in late 2019 that the system for appointing Patent Office ALJs violated the Appointments Clause and severed a provision that restricts removal of ALJs from the statute to remedy the unconstitutional appointment. After that 2019 ruling, several cases presented the issue of whether other litigants could take advantage of the Arthrex decision even though they had not first raised the issue before the agency. Indeed, the petitioner in Arthrex itself had presented the same issue decided in Carr as a second question in its petition, but the Court limited its review in Arthrex to the Appointments Clause issue.

You can read more about Carr here in this Jones Day Commentary.

The following two tabs change content below.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Jones Day | Attorney Advertising

Written by:

Jones Day

Jones Day on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.