U.S. Supreme Court granted cert on Federal Circuit's ruling that PTAB APJs are appointed in violation of the Appointments Clause of Article II. The Appointments Clause requires that "principal officers" in the government be appointed by the President with the advice and consent of the Senate while inferior officers may be appointed by a department head. APJs are appointed by the Secretary of Commerce in consultation with the PTO Director.
The Supreme Court has presented two questions: (1) whether, for purposes of the Appointments Clause, APJs are principal officers who must be appointed by the President with the Senate's advice and consent, or "inferior Officers" whose appointment Congress has permissibly vested in a department head (2) whether, if APJs are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 USC 7513(a) to those judges.
The Supreme Court has presented two questions: (1) whether, for purposes of the Appointments Clause, APJs are principal officers who must be appointed by the President with the Senate's advice and consent, or "inferior Officers" whose appointment Congress has permissibly vested in a department head (2) whether, if APJs are principal officers, the court of appeals properly cured any Appointments Clause defect in the current statutory scheme prospectively by severing the application of 5 USC 7513(a) to those judges.
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