[00:00:03] Speaker 02:
afternoon number 22-145, Henry Paul Alton Networks, Inc.

[00:00:11] Speaker 02:
Mr. Alworth Riemeyer.

[00:00:23] Speaker 05:
May it please the Court?

[00:00:24] Speaker 02:
I should mention that Judge Raina is participating by phone.

[00:00:29] Speaker 05:
Yes, Your Honor, thank you.

[00:00:31] Speaker 05:
In Arthrex, the Supreme Court made clear that administrative patent judges are inferior officers who, quote, must be directed and supervised by a presidential appointee, such as the director of PTO.

[00:00:43] Speaker 05:
Arthrex further clarified that while the president or his appointee may delegate their responsibilities, they, quote, cannot delegate the active obligation to supervise that is central to the accountability that is at the core of Article II.

[00:01:02] Speaker 02:
I read the Supreme Court's decision in Arthrex, they repeatedly focus on the statutory provision which they held unconstitutional and suggest that if the board exercised delegated authority from the director, and they mentioned the institution context specifically, that seems to satisfy the Appointments Clause requirement.

[00:01:25] Speaker 05:
Well, Your Honor, it starts to satisfy it, because that means that the power derives from the director.

[00:01:34] Speaker 05:
But the court specifically, in that passage I was just citing, this is at 1978 to 79, says that the president has the responsibility under Article II, and therefore, quote, cannot delegate the active obligation to supervise.

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And again, at page 1983, the court comes back to this and says that,

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adequate supervision entails review of decisions issued by inferior officers.

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When the Supreme Court remanded in Arthrex, or when this court remanded in Mobility Works,

[00:02:10] Speaker 05:
for an opportunity for mobility to file a rehearing petition, I'm sure the court would have been shocked if the director's response would have been, don't worry, I'm not accepting any, even though I acknowledge I have the authority to do so.

[00:02:24] Speaker 02:
What about Srinagar's discussion of the Alipat case, which seems to me to suggest that what went on in Alipat complied with the appointments clause.

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And in Alipat, our court was quite clear

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that the director didn't have the authority to change the board's decision, though he had certain other authority with respect to the board.

[00:02:51] Speaker 05:
Well, Your Honor, with due respect, in this instance, there is no indication that the director was exercising any authority.

[00:03:01] Speaker 02:
No, no, but this isn't different from alibi.

[00:03:04] Speaker 02:
Is it really?

[00:03:06] Speaker 05:
It is because we had, in 10 years time, after the AIA, there was not a single instance, and the government was not able to cite one, in which the director actually took review of an institution decision.

[00:03:19] Speaker 02:
Well, that seems to have been true in ALPAT also, that the regulations didn't provide for director review, that the whole authority had been delegated to the board.

[00:03:29] Speaker 05:
Your honor, while it may be true that there does not have to be, and we've made clear that there does not have to be review in any individual case, there has to be that ability to do so.

[00:03:43] Speaker 05:
There has to be that active supervision that the Supreme Court referenced.

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when they're citing that, they're actually citing to free enterprise.

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So it's a principle that's already been stated in Supreme Court law.

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And that was citing back yet further to Justice Breyer's concurring opinion in Clinton v. Jones, which doesn't involve the delegation by Congress at all.

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It talks only about the president's own responsibilities.

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Judge Newman identified this issue in the Mobility Works decision and the panel did not address it because they said it was for mobility to raise in the first instance on remand before the director.

[00:04:31] Speaker 05:
When in mobility, this court, your honor, authored that opinion, said opportunity for mobility to file a request for rehearing, there had to be an opportunity to alert the director for what the reasons for rehearing was, even if the director had no obligation to undertake such review.

[00:04:49] Speaker 05:
The director's own action in the Open Sky case, since we filed the mandamus petition here, shows the director acknowledges that institution decisions

[00:05:00] Speaker 05:
This was suespante review, Your Honor.

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Was that satisfied?

[00:05:04] Speaker 05:
Well, Your Honor, I think in light of what the open sky order says, which is that in that case, there had been a petition for rehearing before the board and or for review by the presidential opinion panel.

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And it's clear that the director was observing those, paying attention to those, and deciding on that basis whether to conduct a review.

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When Palo Alto Networks was considering what to do to seek further review, the guidance that was given said that if you file for that kind of review before the board or before the POP, you cannot seek director review.

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And so if we had done so, we would not be able to make the argument we're making before your honor's stay, because I think we would have been deemed to have waived that right.

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But if that is the way that the director is going to exercise that supervisory authority that is compelled by the Constitution, I think that would comply.

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Certainly, the Constitution does not spell out, and we're not asking the court to spell out all of the nuances of how it has to happen.

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But there has to be some active review.

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And I think the director's- So just so I understand what it is you're looking for, if there was no policy in place, that

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categorically refused to consider a denial of an institution by the director.

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And so then you filed your hearing request to the director and the director said, deny.

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Is that good enough?

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Your Honor, I think that we would have to live with that, because we have no right.

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So if the director just issued that kind of one-word denial every single time, every time she was requested to review a petition denial, that would be OK?

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I think that we would have to accept, given that there is no obligation that there be

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review.

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If the filing has been received and the director has decided not to exercise review, that is the supervision that is responsible.

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Because all articles... I guess I'm lost as to, in terms of your argument, what is the distinction between those two.

[00:07:27] Speaker 05:
Because at that point, the director owns the decision, Your Honor.

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Because the director has said, deny.

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I'm not going to review it.

[00:07:34] Speaker 03:
Why hasn't the director already owned the decision when the director declares

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that she is delegating this particular statutory function to the board and then declares, whatever they do, I'm on the hook for, the buck stops with me.

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If they do some kind of shenanigans that's very embarrassing, I'll be the one that's politically accountable for it because I am the one that's responsible for having delegated that

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duty to the board.

[00:08:03] Speaker 05:
I'm glad that your honor asked that because I absolutely think that that would be a violation of Article 2.

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It would be an abdication of the responsibility that Article 2 assigns first to the president.

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So then if I understand your argument then is any time a principal officer delegates one of her duties to a subordinate officer or employee that director almost always has to

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leave open the opportunity to revisit the delegate's decision.

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Is that right?

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When the Supreme Court says that adequate supervision entails review of decisions issued by inferior officers, that's what it means.

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It doesn't mean, of course, that there has to be.

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If you're quoting from Arthrex, that was a different fact pattern than what we have here.

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Because there, the board was completely

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insulated from any review by the director.

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Here we have the director specifically assigning the duty to the board.

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And what I think is important is that we consider in the world after Arthrex that we know, because the Supreme Court has said so, that the director has the authority to review final written decisions.

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If the director were to announce

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a policy categorically, don't bother to file your petitions for review by director of final written decisions.

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Because a priori, in advance, they validate every decision that the board may ever make, even though I'm not looking at it.

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That would be an abdication of the Article II responsibility.

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The responsibility is to supervise.

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And it's not just the big policy issues.

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The big policy issues, especially in final written decisions, are going to be reviewed by this court, which reviews the law de novo.

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Fact matters, too, because this court's going to be bounded as long as there's substantial evidence.

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So there needs to be the director herself that personally considers the review?

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What if Director Vidal had a policy that said, I'm a very busy person.

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It's going to be up to my chief staff.

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I delegate the responsibility of considering any request for reconsideration of the petition denial to my chief of staff to decide.

[00:10:23] Speaker 03:
Would that be okay?

[00:10:23] Speaker 05:
I don't think that it would be okay if it was an absolute delegation.

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I think that there has to be reserved the power to do it herself.

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And what we have here is evidence that, of course, after how often that works.

[00:10:38] Speaker 03:
So this is true of every function and duty, like, for example, patent examination.

[00:10:42] Speaker 03:
If a patent examiner issues a final rejection denying an application, should the applicant therefore be allowed to petition directly to the director for a request to review?

[00:10:55] Speaker 05:
Not directly to the director.

[00:10:57] Speaker 05:
There are avenues for review, though.

[00:11:00] Speaker 05:
What we're saying is that the director can't simply...

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In the instance that you started with, which is director issues denied, the presumption of regularity is that the director has reviewed it to the extent the director wanted to and is denied.

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But where the director has for 10 years never exercised such review, and then the first time that there is ever an articulation of a policy says, stay away.

[00:11:27] Speaker 05:
I don't want to hear it.

[00:11:29] Speaker 05:
I am not going to review those decisions.

[00:11:31] Speaker 05:
It basically tells the board members.

[00:11:34] Speaker 02:
We now have a situation in which the director will sue Esponti to review these institution denials, right?

[00:11:42] Speaker 05:
And we understand that one way to raise the issues to her is to put it in a petition for board rehearing or for POP review.

[00:11:49] Speaker 05:
And I think that that's fine, Your Honor, but we did not have the benefit of that.

[00:11:53] Speaker 02:
So if in this case we were to remand to have the director consider sue Esponti review,

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in accordance with the existing policy, that would satisfy the Appointments Plus problem?

[00:12:04] Speaker 05:
I think it would, Your Honor.

[00:12:05] Speaker 05:
In this instance, when we asked the director after the office said, no, we will not accept for filing your petition for review, we said, well, can we go back and file it to the board?

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That would have set up this chain of events, possibly in open sky.

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And we said, nope, you're done here.

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We didn't have an opportunity to file

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the petition for a rehearing before the board that might have set this up.

[00:12:28] Speaker 05:
There's the internal review team that the new guidance refers to.

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Of course, that new guidance came out three days after our mandamus petition here.

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I think what's happened is that Palo Alto Networks has done the patent bar, a service by identifying the problem and getting the director to adopt a policy by which she will exercise that authority.

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We know that Congress has gotten in the game, too, by suggesting that she needs to do that by regulation.

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But Palo Alto Networks never had that benefit.

[00:13:02] Speaker 05:
Counsel, this is Judge Arena.

[00:13:05] Speaker 01:
I find your argument very interesting, but I keep harking back to the decision of the Supreme Court in our threats, where the court said, to be clear, the director may not review every decision of the PTAP, setting that aside.

[00:13:20] Speaker 01:
It goes on and says, what matters is that the director had the discretion to review decisions rendered by the APIs.

[00:13:28] Speaker 01:
It seems to me that there's no question here that the director has the discretion.

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exercise that discretion.

[00:13:37] Speaker 01:
But the Supreme Court has made it clear that's not the point, that the point is whether the director has the discretion or not.

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In this case, it's clear that the director does have discretion.

[00:13:47] Speaker 05:
Well, Your Honor, to be clear, the first and only reference to that power came after Palo Alto Networks filed its mandamus petition in this court.

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There was never any suggestion

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that the director, and this director took office after the end of the pandemic.

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So it's clear I'm not referring to her individually.

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But her predecessors gave no indication that they understood that this was an authority that they retained.

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And maybe that's because the statute, of course, had said that as to the final written decisions, which are even more important, perhaps,

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There was no director review.

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So maybe the director understood that once it had assigned that decision as well to the board, that that decision also was not subject to review.

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We don't know.

[00:14:34] Speaker 05:
The government's brief says, well, it's always been a power that was reserved.

[00:14:40] Speaker 05:
But there was no evidence of that.

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10 years, no exercise of that authority.

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And the first written policy was, again, the stiff arm.

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Don't even bother to submit it.

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And a suggestion that if you filed a petition for rehearing before the board, or you filed a petition for review by the POP, you were forgoing any right to direct a review, which is what we wanted.

[00:15:04] Speaker 05:
And I just want to clarify, and I do want to reserve some time for that.

[00:15:08] Speaker 05:
Clarifying factual errors can be as important as the big policy issues.

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As all of us know, whether we're parents or any other circumstance where we supervise, sometimes you have to correct

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the small errors so that the people understand that you're paying attention.

[00:15:26] Speaker 05:
This decision here, where they just switched the order of the references, they said that there was no reason to modify the secondary reference with the primary was sloppiness.

[00:15:35] Speaker 05:
It was lack of care.

[00:15:36] Speaker 05:
The director should say, go back, do it again.

[00:15:40] Speaker 02:
Thank you.

[00:15:40] Speaker 02:
I think we're out of time.

[00:15:41] Speaker 02:
We'll give you two minutes to go back.

[00:15:43] Speaker 02:
Thank you.

[00:15:46] Speaker 02:
I guess first we're going to hear from Mr. Andre.

[00:15:54] Speaker 04:
May it please the court?

[00:15:56] Speaker 04:
Your Honor, I'll be arguing just one very simple issue, and that's one waiver or forfeiture.

[00:16:01] Speaker 02:
This is kind of different from the Sienna, isn't it, in the sense that the relief that's being requested is not to invalidate the decision by the board, but to add another layer of review, whereas in Sienna,

[00:16:20] Speaker 02:
the request was to invalidate the decision and start over.

[00:16:26] Speaker 04:
There is some factual difference, but there's also some similarities.

[00:16:30] Speaker 04:
Like in Sienna, the petitioner in this case, they went to the district court and got the case stayed.

[00:16:37] Speaker 04:
So that's a very important fact here.

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They could have an alternative means to check the validity of these patents to the district court.

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They chose not to.

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Time and time and time again, they've petitioned the patent office

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to attack centripetal's patents.

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And time and time again, they've even misused that privilege as well.

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So what we're saying here is that they knowingly came to this court knowing they waived their very objection to the appointments clause that they have here.

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That waiver should not be forgiven.

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And I think that's really the crux of what I'm talking about here.

[00:17:16] Speaker 02:
They're not trying to undo what they sought.

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And that's the distinction between Sienna.

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They're happy to have the consequences of what they saw.

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They just want an additional level of review.

[00:17:29] Speaker 04:
Well, if they're happy to get the same result and just have a different review, that's a little bit of a form of a substance, obviously.

[00:17:36] Speaker 04:
But that's not what they're asking for.

[00:17:37] Speaker 04:
They're asking for another buy the apple.

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And that's what Palo Alto Network is doing time and time again.

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They've had multiple petitions over and over again.

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It never ends.

[00:17:45] Speaker 04:
So what we're talking about here is, in the instance where you choose to go to the PTAB instead of going to the district court, you shouldn't get more and more bites of the apple.

[00:17:55] Speaker 04:
That's just not fair to the patent owner and the innovative company.

[00:18:00] Speaker 04:
I know Mr. Salsman has much more of the meat of this argument for the government.

[00:18:03] Speaker 04:
I'll let him take it from here unless you have any further questions.

[00:18:07] Speaker 02:
Thank you.

[00:18:07] Speaker 02:
Thank you.

[00:18:08] Speaker 02:
Thank you, Mr. Andre.

[00:18:11] Speaker 02:
Mr. Salsman?

[00:18:18] Speaker 00:
Thank you, Your Honor, and may it please the court, Joshua Salzman on behalf of the Patent and Trademark Office.

[00:18:23] Speaker 02:
What about the forfeiture issue, which you didn't mention in your report?

[00:18:27] Speaker 00:
Yeah, we haven't raised a forfeiture defense, and we don't have a position on that here.

[00:18:33] Speaker ?:
OK.

[00:18:33] Speaker 00:
Turning to the merits, though, I've already heard the court anticipate several of the points I was planning on emphasizing during my argument.

[00:18:41] Speaker 00:
But there's one thing that hasn't come up yet that I do just want to make sure gets properly framed, which is to remind the court that we're here in a mandamus posture.

[00:18:49] Speaker 00:
And I think that's significant for two reasons.

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First of all, in Mylan Labs, this court recently emphasized that a party challenging a denial of institution is particularly unlikely to be able to carry the heavy burden

[00:19:02] Speaker 00:
of showing entitlement to mandamus relief.

[00:19:05] Speaker 00:
The second reason it's important is because under the mandamus standard, they're required to show clear entitlement, clear and indisputable entitlement to relief.

[00:19:16] Speaker 00:
And therefore, while we think their Arthrax argument just fails on the merits, at a bare minimum, if this court thinks that what they're asking for is an extension of Arthrax,

[00:19:26] Speaker 00:
This court can just deny the petition for saying that, at a minimum, this case is not on all fours with Arthrex, which I think it plainly isn't.

[00:19:33] Speaker 00:
And therefore, there's no clear and indisputable right to relief.

[00:19:36] Speaker 02:
So your theory, if I understand it correctly, is if in Arthrex itself, after the remand from the Supreme Court to the PTO, the director had said, I'm not going to review any of these cases individually.

[00:19:53] Speaker 02:
But I'm going to have a blanket delegation of authority to the board, both to make the original final written decision and to address the rehearing petition.

[00:20:04] Speaker 02:
That would not raise an Appointments Plus problem.

[00:20:07] Speaker 00:
Well, I think that follows from this court's recent decision in what I'll call Arthrex 2, the post-remand decision here that it's delicable.

[00:20:16] Speaker 00:
But I think the current case is different.

[00:20:20] Speaker 00:
You don't need to agree with me on that, but yes.

[00:20:22] Speaker 02:
No, but wait, wait.

[00:20:22] Speaker 02:
Just so I'm clear, that is your position.

[00:20:25] Speaker 02:
That wouldn't have been a proper outcome in Arthrex itself.

[00:20:28] Speaker 00:
I think once the statutory restraint, the source of the constitutional violation in Arthrex was a statute.

[00:20:36] Speaker 00:
And the reason why it's so significant that it was a statute is a statute ties the director... Does this answer my question?

[00:20:42] Speaker 02:
Yes.

[00:20:43] Speaker 00:
Yes, I believe it is.

[00:20:44] Speaker 00:
Because once the statute is removed, the director's hands aren't tied.

[00:20:48] Speaker 00:
The director bears accountability.

[00:20:51] Speaker 00:
Power and accountability go hand in hand.

[00:20:53] Speaker 00:
And once there's no statute interfering with the director's exercise of authority, if the director is tasking someone else with that authority.

[00:21:02] Speaker 00:
Here, for example, the relevant regulation says that the board exercises the institution decision on behalf of the director.

[00:21:09] Speaker 00:
There's no doubt that especially when coupled with the underlying statutory language found

[00:21:14] Speaker 00:
in 35 USC 314, that the director is responsible for institution, that the public knows what political actor is accountable.

[00:21:24] Speaker 03:
What if, going back to something Mr. Hallberg-Dahnmeier brought up earlier, what if the director, Director Vidal, issued a blanket policy that said

[00:21:34] Speaker 03:
Yes, I have now the power and discretion to reconsider or to to visit rehearings for on final written decisions.

[00:21:45] Speaker 03:
But I'm telling you right now, I'm not accepting any.

[00:21:48] Speaker 03:
So don't send them to me.

[00:21:50] Speaker 03:
And you can try to send them to me, but I'm exercising my authority to refuse to even receive them.

[00:21:57] Speaker 03:
Would that be an appointments clause problem?

[00:21:59] Speaker 00:
Absolutely not.

[00:22:00] Speaker 00:
And I want to emphasize an important distinction, because I do think Palo Alto conflates two distinct concepts.

[00:22:08] Speaker 00:
There's a difference between the director having authority over the decision and choosing to reserve it for exceptional cases and for sua sponte review, and the director choosing to accept briefing from parties disappointed by the results of a particular proceeding.

[00:22:24] Speaker 00:
I think it's completely fine for the director to say,

[00:22:27] Speaker 00:
I'm not particularly interested in reviewing petitions or filings.

[00:22:33] Speaker 00:
I have the authority.

[00:22:34] Speaker 00:
If the board does something that's bad enough that I don't want to be accountable for it, I will come in.

[00:22:40] Speaker 00:
But there's a very big difference under the Appointments Clause between saying the APJs need to have a boss.

[00:22:46] Speaker 00:
The director needs to be over them.

[00:22:49] Speaker 00:
and saying that the party's two proceedings before the board have a right of direct access to that boss or to take challenges up to the boss.

[00:22:58] Speaker 00:
And I think Arthrex says only.

[00:23:00] Speaker 03:
Well, could the director be seen then as somehow insulating herself from the work of the board and never

[00:23:11] Speaker 03:
evaluating it.

[00:23:13] Speaker 03:
Like let's take away summa sponte revisiting.

[00:23:17] Speaker 03:
It's just never ever the directors completely taking yourself out of the equation.

[00:23:22] Speaker 03:
And so therefore it's always going to be these inferior officers that are wielding this executive power through final agency decisions.

[00:23:31] Speaker 00:
I don't think she has the ability to take herself out of it, because the statute says she's on the hook.

[00:23:36] Speaker 00:
Now, it may be that she's going to look like an absentee landlord, she's going to look like she's abdicating her responsibility in some ways, and then the political checks can follow from that.

[00:23:47] Speaker 00:
But at the end of the day, as long as she has the power, which she plainly does,

[00:23:52] Speaker 00:
At that point, there's sufficient accountability under our threats, and particularly under that decision, as recently construed by this court.

[00:24:01] Speaker 01:
Councilor, this is Judge Rayna.

[00:24:04] Speaker 01:
Taking Judge Chan's questions to you, how can you say then that under the scenario that Judge Chan painted, how can you say that the director is reviewing or has review authority over the decisions of the board

[00:24:22] Speaker 01:
The director just flat out says, I'm not going to set any applications for review, any petitions for review.

[00:24:31] Speaker 00:
So as I was saying, Your Honor, I think there's a difference between saying, I'm not interested in receiving briefing and saying, I don't have authority to review, as I think Palo Alto just emphasized.

[00:24:42] Speaker 01:
Let's stick with the former, not the latter.

[00:24:47] Speaker 01:
The director up here has issued almost this type of blanket

[00:24:52] Speaker 01:
a statement, right?

[00:24:55] Speaker 01:
Well, the statement of the agency is... The director says that she's not accepting any applications for review.

[00:25:05] Speaker 01:
That's not an exercise of discretion.

[00:25:09] Speaker 01:
That's avoiding exercising discretion.

[00:25:12] Speaker 01:
It's a step before the director exercises any type of discretion.

[00:25:19] Speaker 00:
I don't agree with that, Your Honor, and I disagree in two ways.

[00:25:23] Speaker 00:
First of all, I want to emphasize that what the director has said, and this is at page 67 of the special appendix, is that the director is not interested in receiving petitions for rehearing or petitions for director review from parties, but the director retains, and has always retained, the authority to engage in sua sponte review.

[00:25:43] Speaker 00:
The second thing I would take issue with is the idea that it's not an exercise of discretion to announce it a policy of how you're going to supervise your subordinates.

[00:25:52] Speaker 00:
She has the power, there's no doubt under section 314, to decide what institution decisions

[00:25:58] Speaker 00:
what the form of review of those will be.

[00:26:02] Speaker 00:
The fact that she has chosen to exercise that discretion in a particular way, first through the promulgation of a regulation that delegates that authority at the board, and then through the announcement of guidance, giving the public notice of the circumstances under which she is likely to review or try to reverse those decisions, is all of that discretionary, and all of it are choices for which she can be held politically accountable.

[00:26:27] Speaker 02:
So Mr. Holwood-Dremmeier says he'd be satisfied if he had the opportunity to seek Sue Asponte review from the director.

[00:26:40] Speaker 02:
Is there an interest here in constitutional avoidance in simply remanding to give them the opportunity to seek what the PTO says is now available?

[00:26:51] Speaker 00:
I don't think you need to get to constitutional avoidance because we're here on mandamus.

[00:26:56] Speaker 00:
Because they can't show a clear and indisputable right under Arthrex, any ambiguity actually cuts against them not in favor of a remand here because of the mandamus standard.

[00:27:08] Speaker 03:
How does it work in other agencies when it comes to a principal officer by regulation or otherwise delegating principal office functions and duties to a subordinate?

[00:27:20] Speaker 03:
Is there always or typically an opportunity for review of the decisions made by delegates up back to the principal officer?

[00:27:30] Speaker 00:
So some of the schemes were predate Arthrex.

[00:27:33] Speaker 00:
But what I would emphasize is that in many schemes, there's no right of access to the principal officer.

[00:27:39] Speaker 00:
So the attorney general might bear ultimately responsibility for the god knows how many thousands of immigration decisions that are made by the Board of Immigration Appeals.

[00:27:49] Speaker 00:
Now, under Arthrex, maybe the attorney general needs to have the right to reach down and sua sponte flip.

[00:27:55] Speaker 00:
a BIA decision of which the attorney general doesn't approve, or the Social Security Administration, which issues something like 700,000 benefits determinations a year.

[00:28:06] Speaker 00:
The commissioner of Social Security does not have to individually review those cases.

[00:28:11] Speaker 00:
And parties who are disappointed by their benefits determinations don't have a right of access to the secretary.

[00:28:17] Speaker 02:
All that matters is the power.

[00:28:20] Speaker 02:
You do cite two Labor Department cases in your brief at page 18.

[00:28:25] Speaker 02:
where the secretary said, I'm not going to review the board's determination.

[00:28:30] Speaker 02:
But is that true in the immigration context and the social security context, that there is an announcement that the attorney general or the secretary won't entertain a complaint about the way the case was decided?

[00:28:45] Speaker 00:
I can tell you, I have more direct experience litigating social security cases.

[00:28:49] Speaker 00:
I can absolutely tell the court that there is no process in place for review.

[00:28:56] Speaker 00:
There's a decision by an administrative law judge in social security.

[00:28:59] Speaker 00:
There's then an entity called the appeals council.

[00:29:01] Speaker 00:
And the decision of the appeals council is the final decision of the agency.

[00:29:04] Speaker 00:
And it's set out by regulation that that is the way the system is set up.

[00:29:08] Speaker 00:
And there's certainly no formalized process that would provide access to the commissioner of social security.

[00:29:13] Speaker 02:
There may be no formalized process, but there's also no announcement by the secretary that review won't be entertained, right?

[00:29:22] Speaker 00:
So again, there hasn't been an announcement here either that review won't be entertained.

[00:29:27] Speaker 00:
What there has been is an announcement that the director isn't interested in receiving briefing from the parties.

[00:29:34] Speaker 00:
But if there's been an announcement here, it's been a clarification that the director retains, and has always retained, the authority to engage in Suez-Fonte review.

[00:29:44] Speaker 02:
Is the PTL considering more extensive director review under these circumstances?

[00:29:49] Speaker 00:
Not to my knowledge.

[00:29:51] Speaker 00:
There was a 28-J letter filed about proposed legislation, which could have an impact, but not.

[00:30:00] Speaker 02:
No.

[00:30:04] Speaker 02:
OK.

[00:30:04] Speaker 02:
All right.

[00:30:05] Speaker 02:
Any further questions?

[00:30:06] Speaker 02:
Judge Raina, do you have anything more?

[00:30:10] Speaker 01:
No, I don't.

[00:30:10] Speaker 01:
Thank you.

[00:30:13] Speaker 01:
OK.

[00:30:13] Speaker 01:
Thank you, Your Honor.

[00:30:20] Speaker 05:
Thank you, Your Honor.

[00:30:21] Speaker 05:
Just quickly, in Milan Labs, the court made clear that constitutional challenges were an exception to the general rule of not being able to seek mandamus of non-institution decisions.

[00:30:33] Speaker 05:
And here, we are raising a constitutional challenge.

[00:30:35] Speaker 05:
The suggestion that you should deny mandamus because there is no decision on all fours would mean that the law could never advance in this area.

[00:30:44] Speaker 05:
And that is certainly not the view the Supreme Court took in the Cheney case, in which it went beyond

[00:30:48] Speaker 05:
the very strict construction of those standards for mandamus.

[00:30:52] Speaker 05:
So this is an issue that the court should take up on mandamus.

[00:30:56] Speaker 05:
The suggestion that the director is reserving her authority for exceptional cases through sua sponte review is a recitation of a policy that was announced after our mandamus petition was filed in this case.

[00:31:10] Speaker 05:
Up until that time, there had never been any review by the director of an institution decision.

[00:31:15] Speaker 05:
And the stated policy was, don't bother me.

[00:31:18] Speaker 05:
Moreover, the stated policy was that if we had filed a petition for board rehearing or for pop review, we would have foregone any right we had to direct a review.

[00:31:29] Speaker 05:
So we were put in an untenable, constitutionally untenable

[00:31:33] Speaker 05:
position in terms of other situations I think it is illustrative that when the Attorney General has regulations with respect to the special prosecutors that do suggest some constraint on the Attorney General's authority to to supervise

[00:31:49] Speaker 05:
The district court of DC reviewed those and said that those were problematic.

[00:31:54] Speaker 05:
The only thing that saved that from an appointments clause challenge, and this was the question whether they should treat the special prosecutor as a principal officer that would have to be appointed by the president, was the fact that the special prosecutor could be removed at will by the attorney general.

[00:32:11] Speaker 05:
But the director has no authority to remove the administrative patent judges at will.

[00:32:17] Speaker 05:
So that type of restraint,

[00:32:19] Speaker 05:
on the presidential appointee's ability to review is problematic.

[00:32:24] Speaker 05:
And just quickly, Arthrex 2, the discussion there was about limitations of the Vacancy Act, a statute.

[00:32:31] Speaker 05:
The language in question said that the statute made the authority non-delegable or the regulation did.

[00:32:38] Speaker 05:
It's not the article 2.

[00:32:40] Speaker 05:
The language that they're citing to does not address the Article 2 problem.

[00:32:48] Speaker 02:
And that concludes our session for this afternoon.