Retroactivity and Appointments
79 Pages Posted: 16 Oct 2020 Last revised: 20 May 2021
Date Written: July 13, 2020
The current law of retroactivity in the Appointments Clause context is confused, resulting in significant practical consequences, such as when courts unnecessarily invalidate prior administrative decisions after judicially removing an unconstitutionality, even where the prior statutory misrepresentation had no apparent effect on the invalidated actions. The Supreme Court has recently been active in the Appointments Clause area without discussing the attendant retroactivity issues, which lower courts are confronting with increased frequency. This article reviews the doctrine of retroactivity and appointments, discusses the relevant academic literature, and proposes a coherent framework for courts to use when faced with these important questions.
This article also describes how a misunderstanding of the law of retroactivity and appointments in the Federal Circuit's recent Arthrex decision has led to dozens of wasteful and unnecessary remands for rehearing before the United States Patent and Trademark Office, and discusses how similar issues with the Consumer Financial Protection Bureau may play out in light of the Supreme Court's recent decision in Seila Law.
Keywords: Retroactivity, Appointments Clause, Arthrex, Seila Law, Federal Circuit, PTAB, Inter Partes Review
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