Two years ago in United States v. Arthrex, the Supreme Court ruled that Administrative Patent Judges (APJs) possess too much “unreviewable authority” for officers who have not been appointed by the president and confirmed by the Senate. The Court’s decision concerned the line between “inferior” and “principal” officers, a distinction created by the Constitution’s Appointments Clause. That clause mandates that an officer who has not been confirmed by the Senate may only serve in an “inferior” office. And the key Supreme Court precedent on that dividing line is Edmond v. United States (1997), which held that an officer is inferior only if “directed and supervised” by a superior appointed by the president and confirmed by the Senate.

In Arthrex, the Supreme Court found that APJs were not adequately “directed and supervised” for one key reason: when deciding whether to cancel a patent, their unreviewable decision was “the last stop for review within the Executive Branch.” To fix this constitutional defect, the Court modified the statutory scheme to allow the Patent and Trademark Office (PTO) director to review every decision of the APJs. As Chief Justice John Roberts wrote, “the exercise of executive power by inferior officers must at some level be subject to the direction and supervision of an officer nominated by the President and confirmed by the Senate.” Since the PTO director is normally a position filled via presidential nomination and Senate consent, granting reviewing power to the PTO director seemingly fit the bill.

But there was a twist. A few months before the Supreme Court issued its decision, the PTO director resigned, and the office fell vacant. That vacancy lasted more than a year, during which time the functions and duties of the position were delegated to an official who had not been confirmed by the Senate. After the Arthrex decision came down, the PTO decided that this unconfirmed official “performing the duties” of the PTO director would be the recipient of the newfound reviewing power granted by the Supreme Court. Arthrex’s Supreme Court victory thus turned out to be entirely hollow: while the Supreme Court agreed that it was unconstitutional for unconfirmed APJs to have the last word on Arthrex’s patent, Arthrex’s only remedy was review by a different unconfirmed official.

Understandably unsatisfied with this outcome, Arthrex went back to the Court of Appeals for the Federal Circuit (the appellate court that handles all patent cases) and argued that the delegation of the PTO director’s powers was illegal. Specifically, Arthrex argued that the delegation violated a provision of the Federal Vacancies Reform Act of 1998 (FVRA). That law, by its own terms, is “the exclusive means for temporarily authorizing an acting official to perform the functions and duties” of a vacant, Senate‐​confirmed position. The only exception is if another statute “expressly” grants the power to designate an acting officer, and general delegation statutes are explicitly singled out as examples of statutes that do not qualify.

By delegating all the PTO director’s powers, the PTO effectively created an acting officer without using the FVRA, thus avoiding the FVRA’s time limits and other restrictions. Arthrex urged that this delegation violated the FVRA’s exclusivity rule. But the Federal Circuit rejected that argument. The court held instead that delegations are only illegal if they violate a separate provision of the FVRA, a provision that courts have given a severely limited scope because it applies only to delegations of an office’s exclusive duties.

Arthrex has now appealed to the Supreme Court for review, and Cato has filed an amicus brief supporting that petition. In the brief, we explain that the exclusivity provision of the FVRA is indeed an independent ground to challenge delegations. The FVRA was enacted specifically to end delegations that evade the limits of the Vacancies Act, delegations just like the one in this case. Both the plain text of the FVRA and its history confirm that the PTO’s delegation is illegal. The Supreme Court should take this case and finally give the FVRA the full force that Congress intended.