The Not-So-Standard Model: Reconsidering Agency-Head Review of Administrative Adjudication Decisions

Abstract

The Supreme Court has invalidated multiple legislative design choices for independent agency structures in recent years, citing Article II and the need for political accountability through presidential control of agencies. In United States v. Arthrex, Inc., the Court turned to administrative adjudication, finding an Appointments Clause violation in the assignment of certain final patent adjudication decisions to appellate panels of unconfirmed administrative patent judges. As a remedy, a different majority declared unenforceable a statutory provision that had insulated Patent and Trademark Office (PTO) administrative adjudication decisions from political review for almost a century. The Court thereby enabled the politically appointed PTO Director to review and change individual decisions, reasoning that this would provide political accountability while conforming PTO practice to “the standard model” for agency adjudication.

Descriptively, agency-head review of adjudication decisions is far from standard, either in current agency structures or in historical patent practice. Nor is it necessarily a panacea for achieving effective oversight. For many kinds of adjudication decisions political control can present dubious benefits and distinct risks. It may bring little accountability for highly technical, low salience decisions, while allowing political officials to reward friends and punish enemies, especially when agencies adjudicate high-value claims. It may compromise other long-valued adjudication features, including independence of adjudicators from enforcement officials. It may be a haphazard mechanism for achieving uniform decisions in high-volume adjudication regimes. Finally, it may tempt agencies to make policy through adjudication rather than through procedures that enable broader input and provide greater accountability such as rulemaking. In short, no single model is likely to be appropriate in all adjudication settings. The history of legislative design of administrative adjudication structures shows that the political branches are able to learn from experience, assess tradeoffs, and revise institutions to address public needs. When the Court redesigns agency structures, it intrudes on responsibilities traditionally and more appropriately exercised by the political branches.

Keywords: Agencies, adjudication, political control, Appointments Clause, Vesting Clause, Take Care Clause, patent law, patent history, patent adjudication