Joe Fleming v. AGRI

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 15, 2019 Decided February 16, 2021
Reargued April 17, 2020

No. 17-1246

JOE FLEMING, INDIVIDUALLY, AND AS JOE FLEMING STABLES,
PETITIONER

v.

UNITED STATES DEPARTMENT OF AGRICULTURE,
RESPONDENT

Consolidated with 17-1249, 17-1250

On Petitions for Review from Orders of the
United States Department of Agriculture

David Broiles argued the cause for petitioners. With him
on the brief was Karin Cagle.

Ilya Shapiro was on the brief for amicus curiae Cato
Institute in support of petitioners.

Michael Pepson and R. James Valvo, III were on the brief
for amicus curiae Americans for Prosperity Foundation in
support of petitioners.
 2
Aditya Dynar was on the brief for amicus curiae The New
Civil Liberties Alliance in support of petitioners.

Hashim M. Mooppan, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for respondent.
With him on the brief were Mark R. Freeman, Mark B. Stern,
Joshua M. Salzman, Daniel Aguilar, and Amanda L. Mundell,
Attorneys.

Pratik A. Shah, appointed by the court, argued the cause as
amicus curiae. With him on the briefs were Z.W. Julius Chen,
and Rachel Bayefsky.

Alan B. Morrison and Richard J. Pierce, Jr. were on the
brief for amici curiae Alan B. Morrison et al., in support of
appointed amicus curiae.

Robert J. Lesnick was on the brief for amicus curiae The
Federal Administrative Law Judges Conference in support of
appointed amicus curiae.

Danette L. Walker (Mincey) was on the brief for amicus
curiae Association of Administrative Law Judges in support of
appointed amicus curiae.

Marilyn Dixon Zahm was on the brief for amicus curiae
SSA ALJ Collective in support of appointed amicus curiae.

Before: SRINIVASAN, Chief Judge, and KATSAS and RAO,
Circuit Judges.

Opinion for the Court filed by Chief Judge SRINIVASAN.

Opinion concurring in part and dissenting in part filed by
Circuit Judge RAO.
 3

SRINIVASAN, Chief Judge: The petitions for review in
these cases ask us to set aside decisions of the Department of
Agriculture imposing sanctions on petitioners for violating the
Horse Protection Act, 15 U.S.C. § 1821 et seq. After the
petitions for review were filed, the Supreme Court decided
Lucia v. SEC, 138 S. Ct. 2044 (2018), holding that the SEC’s
administrative law judges (ALJs) had not been appointed in
compliance with the Appointments Clause, U.S. Const. art. II,
§ 2, cl. 2. In light of Lucia, the government agrees with
petitioners that the ALJ who presided over petitioners’ cases
was improperly appointed. The government moves for vacatur
of the challenged orders and remand for new proceedings
before constitutionally appointed ALJs.

Petitioners, however, oppose the government’s motion,
urging us first to address a number of additional challenges
they advance. While we consider and reject one of those
additional claims, we cannot consider another of the arguments
because petitioners failed to present it before the agency, and
we decline to consider the remaining ones in the present
posture. We therefore grant the petitions for review and
remand these cases so that petitioners may have new
administrative hearings before validly appointed ALJs.

I.

A.

The Horse Protection Act, 15 U.S.C. § 1821 et seq.,
imposes penalties on persons who enter a “sore” horse into
shows or auctions. “Soring” refers to the practice of
intentionally injuring a horse’s forelimbs so that it will quickly
lift its feet as a result of the pain, inducing it to walk with a
high-stepping gait considered desirable for shows and
 4
exhibitions. See Thornton v. USDA, 715 F.2d 1508, 1510 (11th
Cir. 1983). The Horse Protection Act forbids the practice of
soring in order to prevent animal cruelty and protect the
industry. See id. Any person who knowingly shows or exhibits
a sore horse faces criminal and civil penalties, including
temporary disqualification from shows and exhibitions. 15
U.S.C. § 1825(a)(1), (b)(1), (c).

The Department of Agriculture enforces the Horse
Protection Act. The Department begins enforcement
proceedings under the Act (and other statutes it administers) by
filing an administrative complaint against suspected violators.
See 7 C.F.R. §§ 1.131, 1.133(b)(1). The proceeding is then
assigned to an ALJ within the agency. Id. § 1.132. A
respondent served with a complaint has twenty days to file an
answer. Id. § 1.136(a). If no answer is filed, the ALJ may enter
a default order. See id. §§ 1.136(c), 1.139. If an answer is filed,
the ALJ holds a hearing and issues a decision. Id. §§ 1.141,
1.142.

Parties can appeal the ALJ’s decision to a Department
officer known as the Judicial Officer. Id. § 1.145(a). The
Judicial Officer, exercising authority delegated by the
Secretary of Agriculture, acts as the agency’s final adjudicator.
Id. § 2.35(a). The Judicial Officer reviews the record and the
parties’ briefs, presides over any oral argument, and issues a
final decision for the Department. Id. §§ 1.145, 2.35(a). By
regulation, only decisions of the Judicial Officer are “final for
purposes of judicial review.” Id. §§ 1.139, 1.142(c)(4).

B.

In 2017, the Department filed an administrative complaint
against petitioners Jarrett Bradley, Joe Fleming, and Sam
Perkins, alleging that each of them had entered sored horses
 5
into competition in violation of the Horse Protection Act. No
petitioner filed a timely answer to the complaint against him,
and the agency moved for default orders in each case.
Petitioners then filed objections to the motions for default.
Among petitioners’ arguments, they contended that the
presiding ALJ qualified as an “Officer[] of the United States”
for purposes of the Constitution’s Appointments Clause, U.S.
Const. art. II, § 2, cl. 2, and had not been appointed in
compliance with the Clause. Without addressing that
argument, the ALJ entered the requested default orders,
assessing civil monetary penalties and temporarily
disqualifying petitioners from participating in horse shows or
exhibitions.

Petitioners appealed to the Judicial Officer, renewing their
contention that the ALJ had been improperly appointed.
Petitioners additionally argued that the Judicial Officer’s own
appointment was invalid under the Appointments Clause. The
Judicial Officer declined to rule on the Appointments Clause
challenge to the ALJ, finding that it “should be raised in an
appropriate United States Court of Appeals.” Joe Fleming,
76 Agric. Dec. 532, 535 (2017). With regard to the
constitutionality of his own appointment, the Judicial Officer
concluded that he had been lawfully appointed. Id. at 538.
After rejecting petitioners’ remaining arguments, the Judicial
Officer affirmed the default orders. Petitioners then sought
review in our court.

C.

While the petitions for review were pending, the Supreme
Court decided Lucia v. SEC, 138 S. Ct. 2044 (2018). Lucia
considered whether ALJs working in the Securities and
Exchange Commission had been appointed in violation of the
Appointments Clause. Id. at 2051. For purposes of the Clause,
 6
federal workers fall into three categories: (i) principal officers,
who must be appointed by the President with the advice and
consent of the Senate; (ii) inferior officers, who can be
appointed by the President, the head of a department, or a court
of law; and (iii) non-officer employees, whose appointments
are unaddressed (and thus unconstrained) by the Clause. See
id. at 2051 & n.3. Lucia held that the ALJ in that case was an
officer rather than an employee, and that his appointment was
invalid because he had not been appointed by the President, a
department head, or a court of law. Id. at 2055. The Court
vacated the ALJ’s order and remanded for proceedings before
a properly appointed ALJ. Id. at 2055.

After Lucia, the government conceded that the ALJ who
had decided petitioners’ cases was, as petitioners argued, an
inferior officer who had been improperly appointed. The
government thus moved our court to impose the same remedy
ordered in Lucia: vacatur of the challenged orders and remand
for new hearings before a different, properly appointed ALJ.

Petitioners, however, oppose the government’s motion,
urging us to address a number of additional arguments before
any remand. Specifically, petitioners argue, as they did before
the Judicial Officer, that (i) the Judicial Officer, appointed as
an inferior officer, is in fact a principal officer; (ii) the
Department’s ALJs also are principal officers, not just inferior
officers as is now conceded by the government; and (iii) the
Department lacked authority under the Horse Protection Act to
disqualify petitioners from entering horses in shows and
exhibitions. Petitioners also advance a new argument they
have not previously raised: the Department’s ALJs enjoy dual
layers of “for-cause” protection against their removal, 5 U.S.C.
§§ 1202(d), 7521, and those dual layers of protection
unconstitutionally constrain the President’s removal power
 7
under the Supreme Court’s decision in Free Enterprise Fund v.
PCAOB, 561 U.S. 477, 492 (2010).

The government argues that we should decline to address
petitioners’ additional arguments and should do no more than
grant them relief based on Lucia. With regard to petitioners’
new argument that the dual layers of for-cause-removal
protections for ALJs are unconstitutional under Free
Enterprise, the government contends that we cannot consider
the argument because petitioners failed to raise it before the
agency. If we were to reach the merits of that issue, the
government submits that we should adopt a narrowing
construction of one of the applicable layers of removal
protections, see 5 U.S.C. § 7521, to avoid serious constitutional
concerns. Petitioners, for their part, urge us to reject the
government’s proposed narrowing construction and declare the
dual for-cause-removal protections unconstitutional.

Thus, no party takes the position that the dual protections
would be valid under Free Enterprise without adopting the
government’s narrowing construction. Yet Free Enterprise left
open whether its holding applies to the dual layers of for-cause
protections for ALJs. See Free Enterprise Fund, 561 U.S. at
507 n.10; see also Lucia, 138 S. Ct. at 2060–61 (Breyer, J.,
concurring in the judgment in part and dissenting in part). To
ensure full consideration of that issue, we requested
supplemental briefing from the parties and appointed an amicus
curiae to argue that the dual layers of for-cause protections for
the Department’s ALJs are constitutional even if the
government’s narrowing construction were rejected. * In the
supplemental briefing, the government reiterated and

*
The court thanks court-appointed amicus curiae Pratik A.
Shah, aided by Z.W. Julius Chen and Rachel Bayefsky, for their
assistance in presenting this case.
 8
elaborated on its view that petitioners’ forfeiture of that issue
before the agency means that we cannot consider it.

We are ultimately persuaded by the government’s position
in that regard: petitioners did not raise the dual for-cause-
removal issue before the agency, and we are powerless to
excuse the forfeiture. We also decline to address the other
additional arguments petitioners ask us to consider, except we
reject their contention that the Department’s ALJs are principal
officers. Petitioners of course remain free to raise any of the
unaddressed arguments in the proceedings on remand.

II.

We begin with petitioners’ argument that the dual layers
of for-cause-removal protections for the Department’s ALJs
unconstitutionally limit the President’s removal power under
Free Enterprise. As the government has maintained from the
outset, petitioners did not raise that issue before the ALJ or the
Judicial Officer. The argument thus was forfeited before the
agency. Petitioners ask us to excuse the forfeiture and address
the argument because it presents a structural constitutional
objection. See, e.g., Freytag v. Commissioner, 501 U.S. 868,
878–79 (1991). We have no power to do so. Petitioners’
argument is subject to a mandatory, non-excusable, issue-
exhaustion requirement imposed by statute, and we therefore
cannot consider the claim.

By way of overview, our analysis proceeds as follows.
The statute governing judicial review of the Department’s
adjudications expressly requires exhaustion of “all
administrative appeal procedures established by the [agency].”
7 U.S.C. § 6912(e). That provision imposes a mandatory
exhaustion rule, such that a court cannot excuse a party’s
failure to exhaust, no matter the reason. And one of the
 9
“administrative appeal procedures” the Secretary has
established is a requirement to raise each issue in an appeal
before the Judicial Officer. The upshot is that the statute and
regulatory procedures require litigants to exhaust issues before
the agency and forbid us from excusing any failure to do so.
We thus lack the power to consider petitioners’ unexhausted
argument that, under Free Enterprise, the Department’s ALJs
are unduly insulated from the President’s authority to remove
them from office.

First, section 6912(e) establishes a mandatory exhaustion
requirement, leaving courts with no room to excuse a party’s
failure to exhaust. As the Supreme Court has recently made
clear, “courts have a role in creating exceptions” to a statutory
exhaustion provision “only if Congress wants them to.” Ross
v. Blake, 136 S. Ct. 1850, 1857 (2016). “For that reason,
mandatory exhaustion statutes . . . establish mandatory
exhaustion regimes, foreclosing judicial discretion” to excuse
the failure to exhaust, id., even under “standard administrative-
law exceptions” such as futility or hardship, id. at 1858 n.2.
Although judge-made exceptions of that kind are available in
the case of a judge-made exhaustion obligation, when an
exhaustion requirement is imposed by statute, the only question
is whether Congress intended any “limits on a [litigant’s]
obligation to exhaust.” Id. at 1856.

Congress did not intend any such limits under section
6912(e). The Supreme Court’s decision in Ross makes that
clear. Ross considered the Prison Litigation Reform Act’s
exhaustion requirement, which provides in relevant part that
“[n]o action shall be brought with respect to prison
conditions . . . by a prisoner . . . until such administrative
remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). The Court concluded that the statute’s “mandatory
language means a court may not excuse a failure to exhaust.”
 10
Ross, 136 S. Ct. at 1856. The sole exception, the Court noted,
would be if a prisoner could show, per the terms of the statute
itself, that administrative remedies were not “available.” Id. at
1858–59.

The language of section 6912(e) is equally mandatory and
equally “rigorous.” Id. at 1857. Just as section 1997e(a) states
that “[n]o action shall be brought . . . until” administrative
remedies are exhausted, section 6912(e) provides that, “before
[a] person may bring an action,” she “shall exhaust all
administrative appeal procedures established by the Secretary.”
If section 1997e(a) admits of no exception (other than the
textual qualifier that remedies must be “available”), then
section 6912(e) too admits of no exception. Indeed, we have
already stated that “the language of [section] 6912(e) is very
similar to” section 1997e(a). Munsell v. USDA, 509 F.3d 572,
580 (D.C. Cir. 2007). In Munsell, we held that section 6912(e)
imposes a “mandatory, but nonjurisdictional [exhaustion]
requirement,” id. at 581, including for “constitutional claims,”
id. at 592. Although we had no occasion to decide whether
section 6912(e)’s exhaustion rule could be subject to any court-
made exception, see id. at 579, the answer must be no after
Ross.

According to petitioners, Munsell’s statement that section
6912(e) is “nonjurisdictional” means that courts retain the
ability to excuse a failure to exhaust. That is incorrect. The
Supreme Court’s intervening decision in Ross clarified that
even nonjurisdictional exhaustion requirements—such as
sections 1997e(a) or 6912(e)—forbid judges from excusing
non-exhaustion. To be clear, there is still a material difference
between jurisdictional exhaustion requirements and
nonjurisdictional, mandatory requirements. A court must
enforce a jurisdictional requirement even if no party raises the
failure to exhaust. See Union Pac. R.R. Co. v. Bhd. of
 11
Locomotive Eng’rs, 558 U.S. 67, 82 (2009). By contrast, a
nonjurisdictional, mandatory exhaustion requirement functions
as an affirmative defense, and thus can be waived or forfeited
by the government’s failure to raise it. See id.; Jones v. Bock,
549 U.S. 199, 212 (2007). But if the government raises the
exhaustion requirement, the court must enforce it. That is the
case here.

Petitioners also claim that Munsell recognized a futility
exception to section 6912(e)’s exhaustion mandate. In
disposing of the appellant’s claim in Munsell, the court stated
that, because “the complaint and affidavits [could not]
reasonably be construed to indicate that it would have been
futile for Munsell . . . to pursue their administrative appeals on
their constitutional claims . . . , [Munsell’s] failure to exhaust
their administrative remedies is dispositive.” 509 F.3d at 592.
That statement, however, only assumed the existence of a
futility exception without deciding the matter, and offered no
reasoning or precedent justifying the assumption. See id.
Elsewhere in the opinion, the court stated that it had no “need
[to] decide whether the ‘well established exemptions’ to
nonjurisdictional exhaustion requirements apply to § 6912(e).”
Id. at 579 (quoting Woodford v. Ngo, 548 U.S. 81, 126 (2006)
(Breyer, J., concurring in the judgment)). Munsell thus does
not stand in the way of our conclusion that section 6912(e)
leaves no latitude for judges to excuse non-exhaustion. And
Ross compels that conclusion.

Second, section 6912(e)’s non-excusable exhaustion
requirement includes a requirement to raise an issue before the
Judicial Officer in order to preserve it for judicial review. In
Woodford v. Ngo, 548 U.S. 81 (2006), the Supreme Court held
that section 1997e(a) (the exhaustion provision considered in
Ross) requires “proper exhaustion”—i.e., “using all steps that
the agency holds out, and doing so properly (so that the agency
 12
addresses the issue on the merits).” Id. at 90 (internal quotation
marks omitted). The Court explained: “Proper exhaustion
demands compliance with an agency’s deadlines and other
critical procedural rules because no adjudicative system can
function effectively without imposing some orderly structure
on the course of its proceedings.” Id. at 90–91. The Court
specifically contemplated that agency issue-preservation rules
fit within the requirements for “proper exhaustion,” reasoning
that “courts should not topple over administrative decisions
unless the administrative body not only has erred, but has erred
against objection made at the time appropriate under its
practice.” Id. at 90 (internal quotation marks omitted); see id.
(proper exhaustion enables an agency to “address[] the issue on
the merits”). Again, we find no basis for distinguishing section
1997e(a), which requires exhausting “such administrative
remedies as are available,” from the statute at issue here, which
requires exhausting “administrative appeal procedures.” If
anything, the case for proper exhaustion is even stronger with
section 6912(e), which does not require that administrative
appeal procedures be “available.”

Several Department regulations, considered in
combination, establish the requirement to preserve individual
issues before the Judicial Officer. Cf. Sims v. Apfel, 530 U.S.
103, 108 (2000) (“[I]t is common for an agency’s regulations
to require issue exhaustion in administrative appeals.”). To
begin with, 7 C.F.R. § 1.145(a) requires that “[e]ach issue set
forth in the appeal petition [to the Judicial Officer] and the
arguments regarding each issue . . . shall be plainly and
concisely stated.” Section 1.145(b) then allows other parties to
the proceeding to raise “any relevant issue . . . not presented in
the appeal petition.” Id. § 1.145(b). And section 1.145(e)
states that the “[a]rgument to be heard on appeal, whether oral
or on brief, shall be limited to the issues raised in the appeal or
in the response to the appeal.” Id. § 1.145(e). The regulations
 13
link those requirements for proper exhaustion to judicial review
by conditioning “judicial review” on bringing an appeal before
the Judicial Officer. Id. §§ 1.139, 1.142(c)(4).

Together, those regulations require that all arguments be
timely presented to the Judicial Officer, and they empower her
to impose forfeiture as to arguments not timely presented.
Thus, if a party raises a new issue at oral argument before the
Judicial Officer, she may rule against the party on forfeiture
grounds, even if the forfeited argument makes clear that the
ALJ’s decision is erroneous.

Our consideration of unpreserved issues would frustrate
that scheme. In Woodford, the Supreme Court held that raising
issues in an untimely administrative appeal was not proper
exhaustion and thus did not preserve those issues for judicial
review. The forfeiture here is even more pronounced, for
petitioners never gave the Judicial Officer any opportunity to
consider the issue they now seek to press. On deferential
review under the APA, see 5 U.S.C. § 706, we could not
conclude that a decision by the Judicial Officer was arbitrary
and capricious in failing to identify, raise, and resolve sua
sponte an issue never presented to her. Put differently, “[i]f a
party flouts [agency] regulation[s] by failing to raise with the
[agency] an issue that the party asserts in court, the court
generally has no basis for ‘setting aside’ the [agency’s] order
(even assuming the administrative law judge erred).” Island
Creek Coal Co. v. Bryan, 937 F.3d 738, 750 (6th Cir. 2019)
(quoting 33 U.S.C. § 921(c)). Read against section 6912(e) and
the background rule of proper exhaustion, the Department’s
regulations thus required petitioners to exhaust specific issues
before the Judicial Officer as a prerequisite to judicial review.

Our court has interpreted similar sets of regulations to
require petitioners to “afford [an agency] an opportunity to pass
 14
on [a particular issue] before seeking judicial review.”
Vermont Dep’t of Pub. Serv. v. United States, 684 F.3d 149,
157 (D.C. Cir. 2012). In Vermont, we considered Nuclear
Regulatory Commission regulations obligating parties to
(i) petition for Commission review “before seeking judicial
review of an agency action” and (ii) provide a “concise
statement why in the petitioner’s view the [challenged] action
is erroneous.” Id. (citing 10 C.F.R. §§ 2.1212, 2.341(b)(2)(iii)).
Vermont relied on an earlier decision from our court,
Environmentel, LLC v. FCC, which had also interpreted
materially identical regulations to impose an issue-exhaustion
requirement. See 661 F.3d 80, 83–84 (D.C. Cir. 2011) (citing
47 C.F.R. § 1.115(a), 1.115(b)(1)). To the same effect, the
Supreme Court’s decision in Sims v. Apfel cited a rule requiring
petitioners to the Labor Benefits Review Board to “list[] the
specific issues to be considered on appeal” as a typical example
of “an agency’s regulations [that] require issue exhaustion in
administrative appeals.” 530 U.S. at 108 (quoting 20 C.F.R.
§ 802.211(a)). These precedents make clear that the
requirement in 7 C.F.R. § 1.145(a) to set forth “each issue . . .
plainly and concisely” in an appeal petition to the Judicial
Officer, together with the associated regulations enumerated
above, mandate issue exhaustion.

Summing up the above two points, section 6912(e)
requires parties to properly “exhaust all administrative appeal
procedures established by the Secretary,” and one such
“administrative appeal procedure” is a requirement that parties
raise an issue before the Judicial Officer. Section 6912(e) thus
incorporates the Department of Agriculture’s internal appeal
rules, which have included a requirement to raise individual
issues before the Judicial Officer since well before the statute’s
enactment.
 15
To be sure, 7 C.F.R. § 1.145(e) allows the Judicial Officer
to determine, sua sponte, “that additional issues should be
argued” to her even if not raised by the parties. But that
regulatory grant of discretion to the Judicial Officer does not
confer like authority on us. As explained, if the Judicial Officer
had rejected an argument on the ground that it was raised to her
out of time—thereby declining to exercise her discretion to
excuse a forfeiture—we could not set aside her decision as
arbitrary just because we found the forfeited argument
persuasive on the merits. And we certainly could not conclude
that the Judicial Officer acted arbitrarily in failing to identify
and consider an issue never presented to her. As a result, the
fact that the Judicial Officer could have considered the dual for-
cause-removal issue below, despite petitioners’ failure to raise
it, does not mean that we can similarly choose to address it.

It follows that we have no discretion to excuse petitioners’
failure to raise before the agency their dual for-cause-removal
claim. The statute leaves no room for us to disregard
petitioners’ noncompliance with its mandatory obligation to
exhaust the agency’s administrative-appeal procedures,
including the regulations’ issue-exhaustion requirement.
Petitioners, though, can press their unexhausted claim in the
proceedings before the agency on remand.

Our dissenting colleague agrees that, insofar as the
agency’s regulations require issue exhaustion, the statute
incorporates that requirement as a mandatory one. Dissenting
Op. 6. In her view, however, the regulations do not establish
an issue-exhaustion requirement. But the pertinent regulations,
as explained, see pp. 13–14, supra, are materially
indistinguishable from ones held by our court to require issue
exhaustion. See Vermont, 684 F.3d at 157; Environmentel, 661
F.3d at 84; see also Sims, 530 U.S. at 108 (citing 20 C.F.R.
§ 802.211(a)).
 16

Our colleague further submits that we should forgo
requiring issue exhaustion for either of two reasons: (i) the
unexhausted dual for-cause-removal claim involves a
structural constitutional issue, or (ii) judicial estoppel
principles weigh against enforcing issue exhaustion in the
circumstances of this case. Dissenting Op. 10–16. The statute
and incorporated regulations, however, do not contemplate any
exception to the mandatory issue-exhaustion requirement for
either of those reasons. And there is no “judicial discretion” to
consider an unexhausted claim when facing a “mandatory
exhaustion regime[].” Ross, 136 S. Ct. at 1857. As a result,
even if the Supreme Court elected as a matter of judicial
discretion to consider an unpreserved structural constitutional
claim in Freytag v. Commissioner, 501 U.S. at 878–79, the
kind of discretion exercised in Freytag is unavailable when, as
here, a statute establishes a mandatory issue-exhaustion
requirement. No such exhaustion requirement was considered
in Freytag. And while our court considered an unexhausted
separation-of-powers issue in Noel Canning v. National Labor
Relations Board, 705 F.3d 490 (D.C. Cir. 2013), we did so
pursuant to an exception contained in the terms of the statutory
exhaustion requirement itself, id. at 497, not by forging our
own exception as a matter of judicial discretion.

With respect to judicial estoppel, because it too is a
creature of judicial discretion, see Moses v. Howard Univ.
Hosp., 606 F.3d 789, 797 (D.C. Cir. 2020), we doubt it can
overcome a statute’s mandatory exhaustion obligation. In any
event, our colleague’s basis for applying judicial estoppel falls
short. In her view, because a Department representative argued
before the Judicial Officer that he lacked authority to decide
constitutional challenges, the Department should be estopped
from contending that petitioners should have raised their dual
for-cause-removal claim to the Officer. Dissenting Op. 12–13.
 17
But while a Department representative did argue to the Judicial
Officer that he lacked authority to decide constitutional claims,
the representative also clarified that constitutional claims
needed to be raised before the Officer to preserve them for
judicial review. Dep’t Resp. to Pet. Admin. Appeal, J.A. 247.
And in any event, the Judicial Officer denied the suggestion
that he lacked any authority to decide constitutional claims: he
considered (and rejected) a structural constitutional claim that
his appointment had been inconsistent with the Appointments
Clause. Joe Fleming, 76 Agric. Dec. at 538. Perhaps for that
reason, petitioners have not raised judicial estoppel as a basis
for us to reach the merits of their unexhausted dual for-cause-
removal claim.

We finally address our colleague’s suggestion that, if the
statute in fact incorporates an issue-exhaustion requirement, we
would be obligated to dismiss the petitions for review in their
entirety rather than only decline to consider the unexhausted
claim. Dissenting Op. 10. That notion appears to rest on the
language of the statute, which calls for exhaustion “before the
person may bring an action in . . . court.” 7 U.S.C. § 6912(e).
There is no reason to think, though, that a failure to exhaust as
to one claim precludes judicial review of any and all claims
(including ones for which the exhaustion requirement has been
met). For instance, in Environmentel, the relevant regulation
similarly required exhaustion as a “condition precedent to
judicial review of any [agency] action.” 661 F.3d at 84
(quoting 47 C.F.R. § 1.115(k)). And while we declined to
consider two issues that had not been properly exhausted, we
did not then dismiss the petition for review in its entirety:
instead, we otherwise reviewed the challenged order and
sustained it. Id. at 85–86. Here, we likewise cannot consider
petitioners’ unexhausted dual for-cause-removal claim, but we
remain free to consider any claims they properly exhausted in
the agency proceedings.
 18

III.

Petitioners preserved the remainder of their claims before
the agency, but they fare no better in terms of obtaining
additional relief from our court at this time.

Petitioners first argue that the Department’s ALJs are
principal officers, and that the steps the Secretary of
Agriculture has taken to redress the Lucia problem—namely,
ratifying ALJs’ appointments and administering new oaths of
office, Trimble, 77 Agric. Dec. 15, 17 (2018)—are insufficient
to allow any ALJ to hear petitioners’ case on remand. We
disagree. The ALJs are inferior officers who can be appointed
by department heads like the Secretary.

An officer of the United States is “inferior” for purposes
of the Appointments Clause if her “work is directed and
supervised at some level by” principal officers. Edmond v.
United States, 520 U.S. 651, 663 (1997). Under Edmond,
courts examine three factors in applying that test: (i) whether
the officer is subject to supervision and oversight by a principal
officer; (ii) whether the officer is subject to removal by a
principal officer; and (iii) whether the officer has final
decisionmaking authority. See id. at 664; Intercollegiate
Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1339
(D.C. Cir. 2012).

Applying those factors, we have little difficulty classifying
the Department’s ALJs as inferior officers. Although the ALJs
are not removable at will by a principal officer, the analysis
hardly ends there, see, e.g., Morrison v. Olson, 487 U.S. 654,
671–72 (1988), and the other factors point decidedly in favor
of inferior-officer status. The Department’s ALJs are subject
to substantial oversight by the Secretary. The ALJs must
 19
follow the Secretary’s procedural and substantive regulations,
as in Edmond. See 520 U.S. at 664 (relying on principal
officer’s “administrative oversight” over Court of Criminal
Appeals Judges given his “responsibility to prescribe uniform
rules of procedure” and “formulate policies” for the Court
(internal quotation marks omitted)). And the ALJs’ decisions
may be appealed to the Judicial Officer, whom the Secretary
can remove at will. See 7 U.S.C. § 2204-2; 7 C.F.R. §§ 1.132,
2.12.

Petitioners contend that the Judicial Officer’s appellate
review is insufficient to demonstrate the ALJs’ inferior-officer
status unless the Judicial Officer is a principal officer, because,
petitioners say, an inferior officer’s decisions must be subject
to review by a principal officer. We do not decide whether the
Judicial Officer is a principal officer (see below), but we reject
petitioners’ argument regardless. It is inconsistent with
Intercollegiate, which found the officers at issue to be inferior
even though they could make significant decisions without
review by another officer. 684 F.3d at 1341–42. Moreover,
the Secretary (a principal officer) has considerable influence
over whether an ALJ’s decision becomes the final decision of
the agency. For one thing, the Secretary may, at his election,
step in and act as final appeals officer in any case. See 7 C.F.R.
§ 2.12. For another, the Secretary may remove the Judicial
Officer at will, providing the Secretary “a powerful tool for
control,” Edmond, 520 U.S. at 664. Indeed, the Supreme Court
has suggested that an officer who may be removed at will by
another officer is the latter’s “alter ego” for constitutional
purposes. See Free Enter. Fund v. PCAOB, 537 F.3d 667, 686
& n.1 (D.C. Cir. 2008) (Kavanaugh, J., dissenting) (collecting
cases), aff’d in part, rev’d in part and remanded, 561 U.S. 477
(2010). In short, the Department’s ALJs are inferior officers.
 20
Petitioners separately make two other arguments. We
decline to consider either of them at this stage.

First, petitioners contend that the Judicial Officer is an
improperly appointed principal officer. There is no cause for
us to address that issue because the government represents that
the current Judicial Officer will be recused from these cases on
remand due to her prior service as the ALJ who entered the
underlying default orders against petitioners. If a different ALJ
rules against petitioners on remand and they wish to appeal, the
government assures us that their appeals will be heard by the
Secretary or another officer with properly delegated authority,
not the Judicial Officer. On that understanding, we see no need
to address petitioners’ challenge to the Judicial Officer’s
appointment.

Petitioners also advance a statutory argument, contending
that the agency lacks authority under the Horse Protection Act
to disqualify them from events and impose civil fines in the
same proceeding. We have no reason to address that argument
at this stage as it does not bear on the lawfulness of the
administrative process petitioners will undergo on remand. As
with any of their other unresolved claims, petitioners can press
it in the remaining proceedings.

* * * * *

For the foregoing reasons, we grant the petitions for
review, vacate the underlying orders, and remand to the agency
for further proceedings consistent with this opinion.

So ordered.
 RAO, Circuit Judge, concurring in part and dissenting in
part: This appeal raises an important structural constitutional
question, namely whether administrative law judges, who are
Executive Branch officers exercising significant executive
power, can be insulated from the Chief Executive with two
layers of for-cause removal protection. The Constitution and
decisions of the Supreme Court provide a clear answer: such a
double layer of independence contravenes the separation of
powers and undermines the democratic accountability
promoted by vesting all executive power in the President.
Rather than reach this question, the majority goes to great
lengths to avoid it. In the majority’s view, this court is barred
from considering petitioners’ challenge until the agency
considers it first—despite the fact the agency has steadfastly
maintained it cannot consider structural constitutional
challenges until we reach them first. The court refuses to act
before the agency, while the agency refuses to act before the
court—trapping petitioners in an administrative-judicial hall of
mirrors. It would be one thing if the governing statute or
regulations compelled this result. They do not. It abdicates our
judicial responsibility to duck a properly presented and serious
constitutional challenge to the structure of administrative
adjudication. I would therefore reach the merits of the
petitioners’ challenge and hold the tenure protections for
administrative law judges unconstitutional.
I.
The proceedings in this case arose under the Horse
Protection Act, a statute administered by the U.S. Department
of Agriculture (“USDA” or “Department”) that is designed to
protect show horses from abusive trainers. See 15 U.S.C.
§§ 1821–1831. To impose civil penalties under the Act, the
USDA must first provide the accused with “notice and
opportunity for a hearing before the Secretary.” 15 U.S.C.
§ 1825(b)(1). The Secretary is not, however, required to
personally preside over each proceeding. Instead, agencies may
 2
“appoint as many administrative law judges [“ALJs”] as are
necessary” to conduct the hearings required by statute. 5 U.S.C.
§ 3105. Once appointed by the Secretary, an ALJ has a high
degree of independence protected by two layers of for-cause
removal restrictions. The Secretary may remove an ALJ “only
for good cause established and determined by the Merit
Systems Protection Board [“MSPB”].” 5 U.S.C. § 7521(a).
And the members of the MSPB are removable by the President
“only for inefficiency, neglect of duty, or malfeasance in
office.” 5 U.S.C. § 1202(d).
In the case before us, the USDA filed complaints alleging
that petitioners “sored” Tennessee walking horses. Soring is a
practice that involves deliberately injuring horses to force them
to adopt a particular gait. The petitioners failed to answer the
complaints in time, so the ALJ entered default orders imposing
monetary sanctions and disqualifying the petitioners from
horse competitions for several years. The petitioners proceeded
to exhaust the available review procedures by appealing the
orders to the Judicial Officer—an official who performs
regulatory functions on behalf of the Secretary and reviews
orders issued by the agency’s ALJs. See 7 U.S.C. § 2204-2; 7
C.F.R. § 1.145. While the petitioners presented several
constitutional challenges to the appointment of the ALJ and the
Judicial Officer, they did not object to the ALJ’s removal
protections. The Judicial Officer, however, categorically
refused to consider any constitutional challenges to the ALJ
until a court addressed the merits of those challenges first. The
Judicial Officer then affirmed the ALJ’s orders.
The petitioners filed an appeal in this court. The appeal
was held in abeyance pending the Supreme Court’s resolution
of Lucia v. SEC, which held that the ALJs of the Securities and
Exchange Commission (“SEC”) are officers of the United
States who must be appointed in accordance with the
Appointments Clause. 138 S. Ct. 2044, 2055 (2018). See also
 3
U.S. Const. art. II, § 2. No party disputes that under Lucia,
ALJs of the USDA are officers of the United States, and I agree
with the majority that these ALJs are inferior officers who must
be appointed by the President or the head of a department. Maj.
Op. 3 (remanding for “new administrative hearings before
validly appointed ALJs”). It follows that the ALJ presiding
below, who was hired by agency staff, was not constitutionally
appointed.
In addition to the Appointments Clause question resolved
by Lucia, the petitioners raise several other structural
constitutional challenges before this court. Most important for
our purposes, they argue that the two layers of for-cause tenure
protection insulating ALJs from removal are unconstitutional
under Free Enterprise Fund v. Public Company Accounting
Oversight Board. See 561 U.S. 477, 498 (2010) (holding that it
unconstitutionally infringes the President’s executive power to
insulate the Public Company Accounting Oversight Board
(“PCAOB”) with two layers of tenure protection). The USDA
asks that we vacate and remand in light of the Lucia error and
decline to reach the removal power issue; the petitioners, on the
other hand, ask that we decide the question rather than remand
to a decisionmaker who would still lack the constitutional
authority to preside. The agency maintains that petitioners
failed to exhaust their challenge to the removal protections
before the agency and should be barred from raising it in this
appeal. On the merits, the government’s only defense of the
ALJ’s double layer of tenure protections is that the term “good
cause” can be construed broadly to avoid the constitutional
question and to allow for a measure of presidential control that
satisfies constitutional requirements.
After the parties briefed and argued the additional
questions raised by the petitioners, this panel appointed an
amicus to defend the position that, assuming we reject the
government’s construction of the “good cause” standard set out
 4
in 5 U.S.C. § 7521(a), the double layer of for-cause protection
is “nonetheless not ‘incompatible with the Constitution’s
separation of powers’ as applied to administrative law judges
within the Department of Agriculture.” Order at 1, Fleming v.
Dept. of Agric., No. 17-1246 (D.C. Cir. Dec. 6, 2019) (quoting
Free Enterprise Fund, 561 U.S. at 498). The court ordered a
new round of briefing, again heard oral argument, and has
received more than forty supplemental filings.
The majority now bends over backward to avoid the
constitutional challenge to the ALJ removal protections. For
the reasons discussed below, I would reach the question and
hold the double layer of for-cause removal protection
unconstitutional.
II.
Petitioners failed to raise their constitutional challenge to
the ALJ’s independence before the agency. The majority holds
that the petitioners may not raise their challenge to the double
for-cause removal protections on appeal until they have
exhausted the issue by presenting it to the agency. I disagree:
no statute, nor any regulation, mandates issue exhaustion. The
relevant statute, 7 U.S.C. § 6912(e), requires that parties
exhaust all available procedures, but nothing in its text requires
that a party exhaust specific issues by presenting them to the
agency. And the relevant regulation, 7 C.F.R. § 1.145, does not
bar the petitioners’ challenge because it similarly does not
mandate issue exhaustion. Moreover, in light of the importance
of judicial review of structural constitutional issues, our
precedents strongly favor, if not require, reaching such issues
even when not exhausted before an agency. Finally, the USDA
should be estopped from raising its exhaustion argument.
Before the agency’s adjudicators, the USDA successfully
argued that constitutional challenges to the ALJ must first be
decided by the courts. The agency should not now be able to
argue the opposite, namely that this constitutional issue must
 5
first be decided by the agency. Exhaustion is simply not
required here and therefore I would reach petitioners’
substantial constitutional challenge to the ALJ removal
protections.
A.
The USDA’s exhaustion statute provides that “a person
shall exhaust all administrative appeal procedures established
by the Secretary or required by law before the person may bring
an action in a court of competent jurisdiction against … the
Department.” 7 U.S.C. § 6912(e). Two aspects of this statute
are particularly salient. First, we have held “that 7 U.S.C.
§ 6912(e) does not impose a jurisdictional exhaustion
requirement” because it does “not contain the type of sweeping
and direct language that would indicate a jurisdictional bar.”
Munsell v. Dep’t of Agric., 509 F.3d 572, 575, 580 (D.C. Cir.
2007) (quoting Ali v. Dist. of Columbia, 278 F.3d 1, 5–6 (D.C.
Cir. 2002)). Second, Section 6912(e) does not directly require
parties to exhaust specific issues by presenting them to an
agency before raising them in court—the statute requires only
that a party exhaust available “appeal procedures.”
This language reflects a well-established distinction in
administrative law between issue exhaustion, which requires
that a party raise specific arguments, and exhaustion of
remedies, which requires that a party seek review after
exhausting the available agency procedures. Sims v. Apfel, 530
U.S. 103, 107 (2000). Section 6912(e) provides only for
exhaustion of remedies, which is in sharp contrast to numerous
statutes in which Congress has explicitly required a party to
exhaust issues before an agency as a prerequisite to bringing a
claim in court.1 Section 6912(e) imposes no freestanding issue

1
See, e.g., 15 U.S.C. § 717r(b) (“No objection to the order of the
[Federal Energy Regulatory] Commission shall be considered by the
court unless such objection shall have been urged before the
 6
exhaustion requirement for petitioners to present their removal
challenge to the agency.
Because the statute alone cannot support issue exhaustion,
the majority must maintain that the statute bars our review by
“incorporat[ing]” issue-exhaustion requirements found in the
agency’s regulations. Maj. Op. 14. I agree with the majority
that issue exhaustion could be required under Section 6912(e),
but only if the agency’s regulations require such exhaustion.
See Woodford v. Ngo, 548 U.S. 81, 90 (2006) (holding that a
statutory exhaustion requirement similar to Section 6912(e)
requires “compliance with an agency’s deadlines and other
critical procedural rules”); Island Creek v. Bryan, 937 F.3d
738, 747 (6th Cir. 2019) (explaining that under a similar
statute, issue exhaustion is required only if “an agency’s rules
so require”); see also Sims, 530 U.S. at 113 (O’Connor, J.,
concurring in part) (emphasizing that issue exhaustion is
required when “a specific … regulation requir[es]” it, but not
when a regulation “affirmatively suggest[s] that specific issues
need not be raised”). The Department cannot prevail on
exhaustion because its regulations do not mandate issue
exhaustion.
The majority maintains that 7 C.F.R. § 1.145 requires that
parties appeal specific issues to the Judicial Officer. Maj. Op.
8, 11–12. The plain meaning of this regulation, however, does

Commission in the application for rehearing unless there is
reasonable ground for failure so to do.”); see also 29 U.S.C. § 160(e)
(“No objection that has not been urged before the [National Labor
Relations] Board, its member, agent, or agency, shall be considered
by the court, unless the failure or neglect to urge such objection shall
be excused because of extraordinary circumstances.”); 30 U.S.C.
§ 816(a) (“No objection that has not been urged before the [Federal
Mine Safety and Health Review] Commission shall be considered by
the court, unless the failure or neglect to urge such objection shall be
excused because of extraordinary circumstances.”).
 7
not include issue exhaustion as a requirement for raising issues
on judicial appeal. Rather, it establishes a series of ministerial
requirements for administrative appeals to the Judicial Officer.
The majority primarily relies on 7 C.F.R. § 1.145(e), which
states that “[a]rgument to be heard on appeal, whether oral or
on brief, shall be limited to the issues raised in the appeal or in
the response to the appeal, except … if the Judicial Officer
determines that additional issues should be argued.” 7 C.F.R.
§ 1.145(e). Section 1.145(e) is entirely silent with respect to
judicial review—it states only that the “[s]cope of argument”
before the Judicial Officer will be limited to issues raised on
the parties’ appeal to the Judicial Officer. Moreover, Section
1.145(e) does not require issue exhaustion, because it explicitly
provides that the Judicial Officer may allow unraised issues to
be argued.
Other subparts of the regulation impose various procedural
rules for the administrative appeal, but no exhaustion
requirement. For instance, Section 1.145(a) requires that
“[e]ach issue set forth in the appeal petition [to the Judicial
Officer] and the arguments regarding each issue … shall be
plainly and concisely stated.” 7 C.F.R. § 1.145(a). Section
1.145(b) provides for the timing and details of the response to
the petition. The other provisions address such requirements as
the format and timing of oral argument; appeals submitted for
decision on the briefs; transmittal of briefs; and transcription of
testimony. 7 C.F.R. § 1.145(c), (d), (h). The regulation simply
does not create a mandatory issue exhaustion requirement, and
the majority’s contrary conclusion cannot be supported by the
plain meaning of the regulation. Put another way, nothing in
the regulation forecloses this court from excusing a failure to
exhaust or from applying standard exceptions to exhaustion.
Cf. Ross v. Blake, 136 S. Ct. 1850, 1858 n.2 (2016) (noting that
some statutory exhaustion provisions “might be best read to
give judges the leeway to create exceptions or to … incorporate
 8
standard administrative-law exceptions” and that “[t]he
question in all cases is one of statutory construction”).
The majority largely ignores the non-mandatory terms in
which 7 C.F.R. § 1.145(e) is written and instead emphasizes
that the regulations “empower” the Judicial Officer “to impose
forfeiture.” Maj. Op. 13. Yet the majority fails to explain why
such a power would be an “appeal procedure[]” that requires
exhaustion under Section 6912(e). Like courts, agency
adjudicators have the power to reject arguments that are not
raised. See, e.g., In re Laurel Baye Healthcare of Lake Lanier,
352 NLRB 179 at *1 n.2 (2008), vacated on other grounds,
Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, 564 F.3d
469 (D.C. Cir. 2009) (“The respondent waived this argument
by failing to raise it before the [administrative law] judge.”).
Nonetheless, the Supreme Court has concluded some agency
regulations “do not require issue exhaustion.” Sims, 530 U.S.
at 108. Thus, it is not enough that the agency has the power to
rely on forfeiture. The majority must demonstrate that the
agency’s regulations require parties to affirmatively raise each
argument they wish to preserve for judicial review. 7 C.F.R.
§ 1.145 does not. Instead the regulation explicitly states that a
party may prevail on an argument regardless of whether it was
raised.
The cases the majority relies upon cannot support its claim
that the USDA’s regulation requires issue exhaustion. Maj. Op.
13–14. For instance, unlike this case, Environmentel, LLC v.
FCC, 661 F.3d 80 (D.C. Cir. 2011), involved a statute with a
mandatory issue exhaustion requirement. See 47 U.S.C.
§ 405(a) (“The filing of a petition for reconsideration” shall be
“a condition precedent to judicial review … where the party
seeking such review … relies on questions of fact or law upon
which the Commission, or designated authority within the
Commission, has been afforded no opportunity to pass.”). In
light of the explicit statutory exhaustion requirement, the court
 9
easily concluded that “the full FCC must have the opportunity
to review all cases and all aspects of those cases before parties
may exercise their statutory right to appeal to this Court.”
Environmentel, 661 F.3d at 84.
Nor can the majority rely on Vermont Department of
Public Service v. United States, because the court in that case
did not hold that the regulations at issue imposed mandatory
exhaustion. 684 F.3d 149 (D.C. Cir. 2012). Rather, it analyzed
the issue under judge-made exhaustion doctrines, which give
the court discretion to excuse failure to exhaust. See id. at 159
(Although a court “may, in its discretion, excuse exhaustion,”
the court “find[s] no such exculpatory circumstances here.”)
(quoting Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247
(D.C. Cir. 2004)) (cleaned up).2 It is the majority, then, that
departs from precedent by disclaiming our discretion to excuse
failures to exhaust.
Furthermore, when an agency’s regulations are the basis
for issue exhaustion, rather than the statute itself, arguments
must be raised before the agency in the manner “appropriate
under [the agency’s] practice.” Woodford, 548 U.S. at 90
(quoting United States v. L.A. Tucker Truck Lines, Inc., 344
U.S. 33, 37 (1952)) (emphasis omitted). In light of the USDA’s
stated policy not to consider structural constitutional
challenges to ALJ decisionmaking authority absent a court
ruling, 7 C.F.R. § 1.145 cannot require exhaustion of this issue.
See J.A. 372–74. Where, as here, an agency chooses not to
consider a certain class of claims, the agency’s procedures

2
The majority’s reliance on dicta in Sims also does not support
reading 7 C.F.R. § 1.145(e) to require exhaustion. Maj. Op. 14. In
Sims, the Court merely mentioned a different regulatory provision,
20 C.F.R. § 802.211(a), in passing as an example of issue exhaustion.
530 U.S. at 108. But Sims did not have occasion to interpret that
regulation or the one at issue in this case.
 10
cannot be said to require that parties exhaust those claims. To
require exhaustion in such a case as a prerequisite for judicial
review would be inconsistent with the underlying justifications
for issue exhaustion, namely, giving the agency the chance to
correct its mistakes and making judicial review more efficient.
Woodford, 548 U.S. at 89.
Finally, the majority is unwilling to accept the full
consequences of its conclusion regarding issue exhaustion.
Section 6912(e) imposes a mandatory exhaustion of remedies
requirement—the failure to exhaust “appeal procedures” bars a
judicial action against the Department. See 7 U.S.C. § 6912(e)
(“[A] person shall exhaust all administrative appeal procedures
… before the person may bring an action in a court of
competent jurisdiction.”). Under the majority’s determination
that the agency’s appeal procedures have not been exhausted,
petitioners should be barred from bringing this entire “action,”
not merely the unexhausted claim. See Maj. Op. 17. The
majority cannot explain how the plain meaning of the statute
allows petitioners to maintain part of their suit despite failing
to exhaust the regulatory appeal procedures. The majority finds
the statute unyielding—but then carves out exceptions to reach
some, but not all, of petitioners’ constitutional claims.
B.
The majority’s resolution also cannot be squared with the
Supreme Court’s repeated determination that structural
constitutional challenges are an exception to general principles
of exhaustion.3 The failure to raise such important issues before

3
The majority notably does not rely on judge-made exhaustion
doctrines, which may be available “even in the absence of a statute
or regulation.” Sims, 530 U.S. at 109. By forcing issue exhaustion
into a statute and regulation that do not require it, the majority avoids
having to determine whether the exceptions for structural
constitutional issues are available. Ross, 136 S. Ct. at 1857 (noting
 11
an agency does not bar our review. Challenges to the double
layer of for-cause removal protection go to the constitutional
legitimacy and accountability of agency adjudication. See Free
Enterprise Fund, 561 U.S. at 496 (explaining that a double for-
cause removal limitation “impair[s]” the President’s “ability to
execute the laws by holding his subordinates accountable for
their conduct”) (cleaned up). Because petitioners’ claim here is
a structural constitutional challenge, it can “be considered on
appeal whether or not [it was] ruled upon below.” Freytag v.
Comm’r, 501 U.S. 868, 879 (1991); see also Glidden Co. v.
Zdanok, 370 U.S. 530, 536 (1962) (noting “the strong interest
of the federal judiciary in maintaining the constitutional plan
of separation of powers”). As in Freytag, “we are faced with a
constitutional challenge that is neither frivolous nor
disingenuous,” and the problem with two layers of for-cause
removal protection “goes to the validity” of the ALJ
adjudication in this case. 501 U.S. at 879.
Similarly, petitioners’ challenge “implicate[s]
fundamental separation of powers concerns.” Noel Canning v.
NLRB, 705 F.3d 490, 497 (D.C. Cir. 2013), aff’d, 573 U.S. 513
(2014). In Noel Canning, this court excused exhaustion and
reached the constitutional question, id. at 496–98, even though
the Supreme Court had previously held that the relevant statute
imposes a jurisdictional exhaustion requirement that deprives
“the Court of Appeals [of] jurisdiction to review objections that
were not urged before the Board,” Woelke & Romero Framing,
Inc. v. NLRB, 456 U.S. 645, 666 (1982). Moreover, in PHH
Corporation v. CFPB, the en banc court explained that “we
cannot avoid the constitutional question” regarding the
removal protections for the Director of the Consumer Financial

that judge-made exhaustion requirements “remain amenable to
judge-made exceptions”); see also Maj. Op. 9 (“[E]xceptions of that
kind are available in the case of a judge-made exhaustion
obligation.”).
 12
Protection Bureau (“CFPB”), because a remand to the CFPB
for further action “necessitate[d] a decision on the
constitutionality of the Director’s for-cause removal
protection.” 881 F.3d 75, 83 (D.C. Cir. 2018) (en banc),
abrogated by Seila Law v. CFPB, 140 S. Ct. 2183 (2020).
Our cases reinforce the importance of resolving
constitutional questions in the circumstances of this case, in
which petitioners have raised serious structural constitutional
claims regarding the accountability of the ALJ adjudicating
their case. The issues are pure questions of law that will not
benefit from further development by the agency. Moreover, the
majority’s remedy requires a remand to the agency, which
means that like in PHH we cannot avoid petitioners’
constitutional claims about the adjudicator they will face on
remand. Therefore, it is both necessary and appropriate for us
to reach petitioners’ constitutional challenge to the ALJ’s
double layer of for-cause removal protection.
C.
Although I think neither the statute nor the regulations
require issue exhaustion, even assuming with the majority that
USDA’s regulations create a mandatory issue exhaustion
requirement, the agency should be estopped from prevailing on
its exhaustion argument before this court. In this case, the
petitioners are subject to regulatory requirements written,
enforced, and adjudicated by the USDA; but the USDA insisted
throughout the proceedings that constitutional claims must be
brought first in this court. Now the agency says constitutional
claims must be brought first before the agency. I would not
allow the agency to duck and weave its way out of meaningful
judicial review.
In an attempt to persuade the Judicial Officer not to reach
several constitutional challenges to the ALJ’s authority
(challenges unrelated to the removal question now at issue), the
 13
USDA argued below that its Rules of Practice—which include
7 C.F.R. § 1.145—do not apply to constitutional objections.
The agency cited 7 C.F.R. § 1.131, which provides that the
USDA’s Rules of Practice apply only to “adjudicatory
proceedings” arising under several dozen specifically
enumerated statutes. According to the Department’s brief
before the Department’s Judicial Officer, constitutional
objections are not subject to the Rules of Practice because they
do not arise under any of the enumerated statutes. The
Department’s position could not have been clearer: “[A]
constitutional challenge against the ALJs and the Judicial
Officer is not part of an ‘adjudicatory proceeding’ governed by
the Rules of Practice.” J.A. 247. Moreover, the Department
maintained that “[t]he Department’s ALJs and the Judicial
Officer should continue to preside over administrative
proceedings … unless and until there is a final determination
by the federal courts that they lack the authority to do so.” J.A.
243.
Indeed, the Judicial Officer adopted this exact reasoning
and language, ruling that “administrative law judges should
continue to preside over administrative proceedings … unless
and until there is a final determination by the federal courts that
they lack the authority to do so.” J.A. 372. After successfully
making its argument below, the Department does a 180 and
argues to this court—and the majority agrees—that the
agency’s regulations require parties to exhaust structural
constitutional challenges before the agency.
The government should be estopped from raising its
exhaustion argument. As the majority and I agree, Section 6912
is a mandatory, but non-jurisdictional, exhaustion of remedies
requirement. For us to enforce such a requirement, it must be
raised by a party. Maj. Op. 10–11. But the government should
not be permitted to raise its exhaustion argument. Judicial
estoppel of the agency’s exhaustion argument is appropriate to
 14
prevent the agency “from prevailing in one phase of a case on
an argument and then relying on a contradictory argument to
prevail in another phase.” New Hampshire v. Maine, 532 U.S.
742, 749 (2001) (citation omitted); see also Temple Univ.
Hosp., Inc. v. NLRB, 929 F.3d 729, 734 (D.C. Cir. 2019)
(“[M]ost circuits have applied judicial estoppel in cases where
the first proceeding was before an agency … and no circuit has
declined to do so.”) (citations omitted). Since all agree that
there is no jurisdictional exhaustion requirement the court must
enforce sua sponte, even a mandatory exhaustion requirement
does not prohibit us from reaching the merits when the
government is estopped from invoking exhaustion. Contrary to
the majority’s contention, Maj. Op. 16, judicial estoppel is
precisely the kind of exception that even a mandatory
exhaustion statute contemplates because such a statute requires
exhaustion to be properly invoked by a party.
Judicial estoppel “is an equitable doctrine invoked by a
court at its discretion.” Moses v. Howard Univ. Hosp., 606 F.3d
789, 797 (D.C. Cir. 2010) (quoting Maine, 532 U.S. at 750).
“[T]he circumstances under which judicial estoppel may
appropriately be invoked are … not reducible to any general
formulation of principle,” Maine, 532 U.S. at 750 (citation
omitted), but courts often consider three factors: (1) whether
the later position is “clearly inconsistent” with the earlier
position; (2) “whether the party has succeeded in persuading a
court to accept that party’s earlier position”; and (3) “whether
the party seeking to assert an inconsistent position would
derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped.” Id. at 750–51 (cleaned up).
These three factors are not “inflexible prerequisites or an
exhaustive formula,” and other “considerations may inform the
doctrine’s application.” Id. at 751.
The circumstances here amply meet these factors. First,
the agency’s position before this court that petitioners should
 15
have exhausted their ALJ removal argument before the agency
is “clearly inconsistent” with its initial position that such
structural constitutional questions must be first raised in court.
J.A. 247. Second, the agency ultimately succeeded in
persuading the Judicial Officer to decline to hear petitioners’
constitutional challenge to the ALJ, and instead to proclaim
that “challenges to the constitutionality of the [ALJs] and the
administrative process should be raised in an appropriate
United States Court of Appeals.” J.A. 372. Finally, the agency
would “derive an unfair advantage” if it is allowed to benefit
from its change of position.4 Maine, 532 U.S. at 751. Shifting
interpretations of agency regulations always carry the risk of
“creat[ing] unfair surprise or upset[ing] reliance interests.”
Kisor v. Wilkie, 139 S. Ct. 2400, 2421 (2019); see also Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016)
(emphasizing the danger of unsettling reliance interests when
an agency reverses position).
It would be contrary to basic principles of fairness to
permit the government to prevail before this court by invoking
conflicting interpretations of a regulation at different phases of
the same litigation. 5 Our equitable discretion would be well

4
In a similar context, the Sixth Circuit invoked judicial estoppel and
permitted a suit to go forward in the district court because an agency
had previously prevailed by convincing the MSPB that the suit could
go forward only in the district court. Valentine-Johnson v. Roche,
386 F.3d 800, 809–11 (6th Cir. 2004). The court refused to let the
agency “ma[k]e a 180-degree change in its position” by arguing that
the suit could not proceed in district court because the plaintiff had
failed to exhaust her administrative remedies. Id. at 810.
5
After the agency argued that the Rules of Practice do not apply to
constitutional arguments, it commented that parties should
nonetheless preserve such arguments. J.A. 247 (“[I]t is well settled
that constitutional issues should be raised in administrative
proceedings, thereby preserving them for appeal.”). These two
 16
exercised to hold agencies to their word, rather than encourage
them to formulate and then reformulate their legal positions to
conveniently support their litigating needs.
* * *
The majority approves the USDA’s bait-and-switch,
remanding petitioners’ claims to the USDA without resolving
the serious constitutional challenge to the ALJ’s independence.
After years of litigation, the petitioners, having already
exhausted the agency’s procedures once, must now return to
make their constitutional arguments to an agency that has
announced it will not consider constitutional arguments.
Straining to avoid judicial decision, the majority places a
substantial burden on petitioners, horse trainers who have the
temerity to challenge the constitutionality of government
procedures.
When Congress requires issue exhaustion before an
administrative agency, we must stay our hand. In this case,
however, nothing in the relevant statute or regulation requires
exhaustion. We should reach petitioners’ structural
constitutional claims even though they were not raised below.
Freytag, 501 U.S. at 878–79. Rather than send petitioners to
argue before a decisionmaker who lacks the constitutional
authority to preside, I would proceed to the merits.

propositions are consistent: regardless of whether 7 C.F.R.
§ 1.145(e) applies, judge-made exhaustion rules may require that
parties present constitutional issues to an agency before raising them
in court, at least as a general matter. See Sims, 530 U.S. at 109. Thus,
one stray statement encouraging parties to preserve constitutional
arguments for judicial review does not nullify the agency’s plain and
unambiguous statement that a “constitutional challenge against the
ALJs … is not … governed by the Rules of Practice.” J.A. 247.
Having clearly stated that position below, the agency should be
precluded from arguing the precise opposite on appeal.
 17
III.
Under the text, structure, and original meaning of the
Constitution, as well as Supreme Court precedent, it is
unconstitutional to insulate Agriculture ALJs with two layers
of removal protection.6
A.
The Constitution vests the executive power in a single
person, the President. U.S. Const. art. II, § 1; see also Seila
Law, 140 S. Ct. at 2197 (“The entire ‘executive Power’ belongs
to the President alone.”). The powers vested in the President
and the unitary structure of the Executive Branch mean that the
President must control execution of the laws. In order to “take
care that the Laws be faithfully executed,” U.S. Const. art. II,
§ 3, the President must be able to direct his subordinates in how
the laws will be executed. Because “removal at will” is “the
most direct method of presidential control,” Seila Law, 140
S. Ct. at 2204, “the Constitution gives the President ‘the
authority to remove those who assist him in carrying out his
duties,’” id. at 2191 (quoting Free Enterprise Fund, 561 U.S.
at 513–14). Placing the removal power squarely in the
President’s hands preserves “the chain of dependence,” such
that “the lowest officers, the middle grade, and the highest, will
depend, as they ought, on the President, and the President on
the community.” 1 Annals of Cong. 518 (1789) (statement of
J. Madison).
This chain of dependence promotes democratic
accountability by ensuring the President is “a single object for
the jealousy and watchfulness of the people.” The Federalist

6
Petitioners do not challenge the constitutionality of a single layer
of for-cause removal protection, so I do not address this issue. See
Petitioners Supp. Br. 35 (urging this court to hold that “the USDA
ALJs’ dual-level-tenure-protection contravenes separation of
powers”).
 18
No. 70, at 479 (Alexander Hamilton) (Cooke ed. 1961).
Moreover, the removal power reinforces the independence of
the Executive—the absence of such control “would undermine
the separate and coordinate nature of the executive branch.”
Neomi Rao, Removal: Necessary and Sufficient for
Presidential Control, 65 Ala. L. Rev. 1205, 1228 (2014). While
the President can and must rely on subordinates, the power to
remove those subordinates is a “structural protection[] against
abuse of power” that is “critical to preserving liberty.” Bowsher
v. Synar, 478 U.S. 714, 730 (1986).
The President’s removal power derives from the text and
structure of the Constitution and “has long been confirmed by
history and precedent.” Seila Law, 140 S. Ct. at 2197.7 Debates
in the First Congress, the so-called Decision of 1789, made
clear that the President is vested with plenary removal power.
The view that “prevailed” in the First Congress “as most
consonant to the text of the Constitution” was that the Article
II executive power necessarily includes the power to remove
subordinate officers, because anything traditionally considered
to be part of the executive power “remained with the President”
unless “expressly taken away” by the Constitution. Letter from
James Madison to Thomas Jefferson (June 30, 1789).

7
See generally Saikrishna Prakash, The Essential Meaning of
Executive Power, 2003 U. Ill. L. Rev. 701, 796 n.556 (“Most
members of [the First] Congress recognized that forbidding removal
effectively would preclude presidential control of law execution and
destroy presidential accountability for that task.”); Steven G.
Calabresi & Saikrishna B. Prakash, The President’s Power to
Execute the Law, 104 Yale L.J. 541, 597 (1994) (“[S]tructural
reasons and a host of historical and textual arguments persuade us
that the President must also have a removal power so that he will be
able to maintain control over the personnel of the executive
branch.”).
 19
The Supreme Court has repeatedly returned to that original
meaning in recognizing that “[s]ince 1789, the Constitution has
been understood to empower the President to keep … officers
accountable—by removing them from office, if necessary.”
Free Enterprise Fund, 561 U.S. at 483; see also Bowsher, 478
U.S. at 723–24 (observing that the Decision of 1789 is
“weighty evidence” of the scope of the removal power)
(citation omitted); Myers v. United States, 272 U.S. 52, 111–36
(1926) (discussing the Decision of 1789 at length); Ex parte
Hennen, 38 U.S. 230, 259 (1839) (noting that the First
Congress’s understanding became the “settled and well
understood construction of the Constitution”). Consistent with
this original public meaning, the Supreme Court has
emphasized that the executive power vested in the President
includes nearly unfettered power to remove officers of the
Executive Branch.
Moreover, the Court has recognized only two judicially
created exceptions to the general constitutional requirement of
“the President’s unrestricted removal power.” Seila Law, 140
S. Ct. at 2192. These exceptions “represent what up to now
have been the outermost constitutional limits of permissible
congressional restrictions on the President’s removal power.”
Id. at 2199–2200 (quoting PHH Corp., 881 F.3d at 196
(Kavanaugh, J., dissenting)). First, the Court has held that
Congress may “create expert agencies led by a group of
principal officers removable by the President only for good
cause.” Id. at 2192 (citing Humphrey’s Executor v. United
States, 295 U.S. 602 (1935)). Second, the Court has held that
Congress may provide limited “tenure protections to certain
inferior officers with narrowly defined duties.” Id. (citing
Morrison v. Olson, 487 U.S. 654 (1988), United States v.
Perkins, 116 U.S. 483 (1886)). The Supreme Court recently
declined to elevate these exceptions “into a freestanding
invitation for Congress to impose additional restrictions on the
 20
President’s removal authority.” Seila Law, 140 S. Ct. at 2206
(cleaned up).
Of particular relevance to petitioners’ challenge is Free
Enterprise Fund, in which the Court explained that “Congress
cannot limit the President’s authority” by imposing “two levels
of protection from removal for those who nonetheless exercise
significant executive power.” 561 U.S. at 514. That case
involved members of the PCAOB, who could be removed by
the SEC only “for good cause shown.” 15 U.S.C. § 7211(e)(6).
Commissioners of the SEC, the Court assumed, could be
removed by the President only for “inefficiency, neglect of
duty, or malfeasance in office.” Free Enterprise Fund, 561
U.S. at 487 (quoting Humphrey’s Executor, 295 U.S. at 620).
Thus, two layers of for-cause removal protections insulated
members of the PCAOB from presidential control.
The Court held that this “novel structure does not merely
add to the Board’s independence, but transforms it.” Id. at 496.
“Without the ability to oversee the Board, or to attribute the
Board’s failings to those whom he can oversee, the President
is no longer the judge of the Board’s conduct. … He can neither
ensure that the laws are faithfully executed, nor be held
responsible for a Board member’s breach of faith.” Id.
Refusing to sanction innovative intrusions on the President’s
removal authority, the Court held that the independence created
by a double layer of tenure protection was unconstitutional.
The Constitution’s vesting of executive power in a single
President, the structure of separate and independent powers,
and longstanding Supreme Court precedent confirm that the
President has broad power to remove executive officers. The
Court has also reaffirmed that any judicially created exceptions
to the removal power must be construed narrowly in light of
the President’s constitutional responsibility to execute the law.
 21
B.
Under this framework, the “dual for-cause limitations on
the removal” of ALJs “contravene the Constitution’s
separation of powers.” Free Enterprise Fund, 561 U.S. at 492.
First, ALJs are officers of the United States. As the
government concedes and the majority agrees, this conclusion
follows from the Court’s decision in Lucia, because
Agriculture ALJs are materially indistinguishable from SEC
ALJs. For example, Agriculture ALJs have extensive control
over hearings, including the authority to issue subpoenas, take
and order depositions, admit or exclude evidence, and rule
upon motions. 7 C.F.R. § 1.144(c). The ALJ’s decision
becomes final absent an appeal. Id. § 1.142(c)(4), § 2.27(a)(1).
Agriculture ALJs also have career appointments, 5 C.F.R.
§ 930.204(a), pursuant to an authorizing statute, see 5 U.S.C.
§ 3105. Since Lucia, no appellate court has found that a
particular agency’s ALJs are not officers. See Jones Bros., Inc.
v. Sec’y of Labor, 898 F.3d 669, 679 (6th Cir. 2018) (extending
Lucia to apply to Social Security Administration ALJs). See
also U.S. Dep’t of Justice, Memorandum: Guidance on
Administrative Law Judges after Lucia v. SEC (S. Ct.) (2018)
at 2 (“[W]e conclude that all ALJs and similarly situated
administrative judges should be appointed as inferior officers
under the Appointments Clause.”). Following Lucia,
Agriculture ALJs are inferior Executive Branch officers.
Second, as “Officers of the United States,” ALJs exercise
the Article II executive power on behalf of the President. To be
sure, ALJs perform adjudicative functions and use adjudicatory
procedures to execute the law. See 7 C.F.R. § 1.141. Whatever
methods or functions are employed, however, officers of the
Executive Branch cannot exercise anything but executive
power:
 22
The [legislative power] is vested exclusively in
Congress, the [judicial power] in the “one
supreme Court” and “such inferior Courts as the
Congress may from time to time ordain and
establish.” Agencies make rules … and conduct
adjudications … and have done so since the
beginning of the Republic. These activities take
“legislative” and “judicial” forms, but they are
exercises of—indeed, under our constitutional
structure they must be exercises of—the
“executive Power.”
City of Arlington v. FCC, 569 U.S. 290, 304 n.4 (2013)
(citations omitted); see also Freytag, 501 U.S. at 912 (Scalia,
J., concurring in part) (“[T]he Tax Court, like the Internal
Revenue Service, the FCC, and the NLRB, exercises executive
power.”). 8 As Congress lacks the power to delegate to
Executive Branch officers either the legislative power,
Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 472
(2001), or the judicial power, Stern v. Marshall, 564 U.S. 462,
484 (2011), ALJs can exercise neither. See also Seila Law, 140
S. Ct. at 2216 (Thomas, J., concurring in part and dissenting in
part) (explaining that Congress cannot “create agencies that
straddle multiple branches of Government … [f]ree-floating

8
Justices of the Supreme Court who disagree about the permissible
restrictions on the President’s removal power agree that the heads of
independent agencies exercise executive power, even when they
adjudicate or enact regulations. See Free Enterprise Fund, 561 U.S.
at 514 (observing that PCAOB members with adjudicatory functions
“exercise significant executive power”); id. at 516 (Breyer, J.,
dissenting) (framing the question as the President’s power to dismiss
“executive Branch officials”); see also Seila Law, 140 S. Ct. at 2234
n.7 (Kagan, J., concurring in part and dissenting in part) (disagreeing
with the majority regarding the scope of the removal power but
noting that “today we view all the activities of administrative
agencies as exercises of the executive power”) (cleaned up).
 23
agencies simply do not comport with [the] constitutional
structure”).
Third, while “Congress may afford the officers of
[Executive Branch adjudicative bodies] a measure of
independence from other executive actors … they remain
Executive–Branch officers subject to presidential removal.”
Kuretski v. Comm’r, 755 F.3d 929, 944 (D.C. Cir. 2014). As
officers exercising the executive power, Agriculture ALJs must
be accountable to the President. To secure the requisite
constitutional accountability, officers must be in the chain of
command to the President, with control generally provided by
removal at will. See Seila Law, 140 S. Ct. at 2191.
Yet despite being Executive Branch officers wielding the
executive power on behalf of the President, Agriculture ALJs
are not subject to the President’s control, either directly or
through the Secretary of Agriculture. Congress insulated ALJs
with two layers of for-cause removal protection: an agency
may remove an ALJ “only for good cause established and
determined by the [MSPB],” 5 U.S.C. § 7521(a), and members
of the MSPB “may be removed by the President only for
inefficiency, neglect of duty, or malfeasance in office,” 5
U.S.C. § 1202(d).
ALJs have not always enjoyed such double layered
independence. Prior to 1946, ALJs enjoyed no tenure
protections at all and “were in a dependent status” vis-à-vis
their agency. Ramspeck v. Fed. Trial Exam’rs Conf., 345 U.S.
128, 130 (1953). The Administrative Procedure Act (“APA”)
in 1946 first provided that ALJs may be removed only for good
cause, a development designed to promote “independence and
tenure within the existing Civil Service system.” Id. at 132.
Congress ensured ALJs were “removable by the agency in
which they are employed only for good cause established and
determined by the Civil Service Commission.” Administrative
Procedure Act, Pub. L. No 79-404, § 11, 60 Stat. 237 (1946).
 24
The members of the Civil Service Commission, however, were
removable at will by the President. See 5 U.S.C. § 632 (1946)
(“The President may remove any Commissioner.”). So ALJs
were protected by a single for-cause removal restriction.
It was not until 1978 that Congress established the Merit
Systems Protection Board, the members of which can be
removed only for cause, to replace the Civil Service
Commission. See Civil Service Reform Act of 1978, Pub. L.
No. 95-454, § 1202(d), 92 Stat. 1111. These amendments also
placed ALJs within the control of the MSPB, creating the
double layer of for-cause removal protection. Thus, the double
layered independence for ALJs is a relatively recent
innovation. Cf. Seila Law, 140 S. Ct. at 2202 (“The CFPB’s
single-Director structure is an innovation with no foothold in
history or tradition.”).
When the two for-cause removal restrictions are
combined, neither the President nor the Secretary has any
meaningful power to remove ALJs from office—for any
reason, much less for “simple disagreement with [their]
policies or priorities.” Free Enterprise Fund, 561 U.S. at 502.
Because adjudication is the sole mechanism by which the
USDA can execute statutes like the Horse Protection Act, see
15 U.S.C. § 1825(b)(1), an ALJ’s double layer of independence
deprives the President of any effective control over
enforcement of such statutes. The two layers insulating
Agriculture ALJs from removal are materially identical to the
two layers that protected members of the PCAOB—an ALJ
may be removed only for cause by a Board whose members
may be removed only for cause.9 This is an unconstitutional
infringement of the President’s executive power.

9
In Free Enterprise Fund, the Supreme Court explicitly stated that
it was “not address[ing]” the question of the constitutionality of
double layer removal protections for ALJs. 561 U.S. at 507 n.10
 25
While the Court has recognized that an inferior officer may
be insulated from removal in some circumstances, see Seila
Law, 140 S. Ct. at 2199 (citing Morrison, 487 U.S. at 662–63,
696–97), that narrow exception to the President’s removal
power does not extend to two layers of for-cause tenure
protection. A second layer of for-cause protection
“contravene[s] the Constitution’s separation of powers,”
because it results in officers who are “not accountable to the
President, and a President who is not responsible for” his
officers. Free Enterprise Fund, 561 U.S. at 492, 495.
Under the double tenure protection in Section 7521(a), the
Secretary cannot remove an ALJ who fails to follow the policy
directives of the agency—the “second layer matters precisely
when the President finds it necessary to have a subordinate
officer removed, and a statute prevents him from doing so.” Id.
at 497 n.4. This limitation on the President’s oversight of the
execution of the laws “subverts the President’s ability to ensure
that the laws are faithfully executed—as well as the public’s
ability to pass judgment on his efforts.” Id. at 498. Thus,
statutory insulation of ALJs with two layers of for-cause
removal protection impedes the President’s control over
execution of the laws and violates the Constitution’s structure
of separate and independent powers.
C.
The government and court-appointed amicus raise a
number of arguments in support of removal protections for

(emphasis added). The Court later said in Lucia that “[n]o court has
addressed th[e] question” of whether an ALJ’s tenure protections are
constitutional, explicitly leaving the question open once again. 138
S. Ct. at 2050 n.1. Court-appointed amicus is therefore mistaken in
asserting that the Court exempted ALJs from its holding in Free
Enterprise Fund. See Appointed Amicus Rep. Br. 2. The open
question is squarely presented in this case.
 26
Agriculture ALJs. They focus primarily on the ALJ’s
adjudicatory role and scope of responsibility, as well as the
Secretary’s remaining oversight powers. At root, these
arguments assume that ALJs are categorically different from
other Executive Branch officers. Yet such a principle is
incompatible with the Constitution and recent Supreme Court
decisions. As the Court recognized in Lucia, ALJs are
“officers” for the purposes of the Appointments Clause. 138
S. Ct. at 2049, 2054. They must therefore be “officers” for the
purposes of the President’s removal power. The principle of
“adjudicatory independence” pressed by amicus is explicitly
protected in the Constitution by the life tenure and irreducible
salaries guaranteed to Article III judges, see U.S. Const. art. III,
§ 1; however, any principle of adjudicatory independence for
ALJs must be understood in the context of executive power
exercised within the Executive Branch. In that context, the
President has the constitutional power and responsibility for
overseeing execution of the laws, a power generally backed by
the threat of removal. Any insulation Congress creates for
agency adjudication must be compatible with the
Constitution’s vesting of all executive power in the President.
Neither the government nor the court-appointed amicus
demonstrates how two layers of for-cause removal protections
for ALJs are compatible with the Constitution and the Supreme
Court’s precedents confirming the centrality of the President’s
removal authority to the separation of powers.
1.
Dodging the constitutional question, the government
insists that we can and must interpret the double for-cause
removal protection in Section 7521(a) to avoid running afoul
of Article II. To reach this result, the government maintains that
the “good cause” standard can be read to allow removal of
ALJs for “misconduct, poor performance, or failure to follow
lawful directions, but not for reasons that are invidious or
 27
otherwise improper in light of their adjudicatory function,” and
that such a reading would be sufficient to protect the
President’s executive power. Gov’t Supp. Br. 31.
The Supreme Court, however, has repeatedly declined to
read statutory removal restrictions contrary to their
conventional and longstanding meaning, a meaning that
includes a measure of independence from policy direction. As
the Court has explained, “removal restrictions set forth in the
statute mean what they say,” and for-cause provisions
generally do not permit removal based on “simple
disagreement with … policies or priorities.” Free Enterprise
Fund, 561 U.S. at 502. In Seila Law, the Court likewise rejected
constructions of “good cause” to allow for greater presidential
control, because “we take Congress at its word that it meant to
impose a meaningful restriction on the President’s removal
authority.” 140 S. Ct. at 2207; see also id. at 2206 (noting that
the government’s saving construction would conflict with
Humphrey’s Executor, which “implicitly rejected an
interpretation that would leave the President free to remove an
officer based on disagreements about agency policy”); Free
Enterprise Fund, 561 U.S. at 503 n.7 (finding the government’s
construction of good cause “implausibl[e]”); PHH Corp., 881
F.3d at 191 n.16 (Kavanaugh, J., dissenting) (“[F]or-cause
removal restrictions attached to independent agencies
ordinarily prohibit removal except in cases of inefficiency,
neglect of duty, or malfeasance.”).10

10
Moreover, the MSPB’s assessments of good cause in ALJ removal
proceedings are reviewed by the Federal Circuit, which, like the
Supreme Court, has maintained that the good cause standard does not
permit removal based only on policy disagreements. See Berlin v.
Dep’t of Labor, 772 F.3d 890, 894 (Fed. Cir. 2014) (holding that an
agency may not remove an ALJ if it would “constitute an improper
interference with the ALJ’s performance of his quasi-judicial
 28
The government also fails to provide any criteria for
separating what it considers “legitimate reasons” for removal
from the invidious ones. Gov’t Supp. Br. 32. Cf. Seila Law, 140
S. Ct. at 2206 (noting that the CFPB’s defenders failed to
articulate “any workable standard derived from the statutory
language” for their interpretation of good cause). The
government’s ahistorical and unconventional interpretation
would create substantial uncertainty about the degree of
permissible presidential control of ALJs and run afoul of the
separation of powers. Enforcing the President’s constitutional
power of removal through case-by-case statutory interpretation
would leave courts to make the ultimate assessment of “good
cause” for removal. Such a scheme would undermine the
President’s independent constitutional authority to ensure
faithful execution of the law by controlling and directing his
subordinates.
Thus, I would reject the government’s attempt to
reconstruct “good cause” removal protections in a manner
contrary to longstanding Supreme Court precedent. The double
for-cause removal protection is not amenable to an
interpretation that allows us to avoid the constitutional
question.
2.
The court-appointed amicus argues that two layers of for-
cause removal protection are constitutional because “removal
protections for Executive Branch officials with adjudicatory
roles have become firmly ensconced in constitutional law.”
Appointed Amicus Br. 7. This claim, however, relies on an
outdated distinction between adjudication and other executive

functions”) (citing Brennan v. Dep’t of Health & Human Servs., 787
F.2d 1559, 1563 (Fed. Cir. 1986)).
 29
functions in order to justify restrictions on the President’s
removal power.
While Humphrey’s Executor upheld removal restrictions
for a so-called independent agency exercising “quasi-
legislative” and “quasi-judicial” functions, 295 U.S. at 629
(1935) (cleaned up), the Supreme Court has repudiated this
reasoning. In Morrison v. Olson, for example, the Supreme
Court explicitly departed from its earlier reliance “on the terms
‘quasi-legislative’ and ‘quasi-judicial’ to distinguish the
officials involved”:
[T]he determination of whether the Constitution
allows Congress to impose a “good cause”-type
restriction on the President’s power to remove
an official cannot be made to turn on whether or
not that official is classified as “purely
executive.” The analysis contained in our
removal cases is designed … to ensure that
Congress does not interfere with the President’s
exercise of the “executive power” and his
constitutionally appointed duty to “take care
that the laws be faithfully executed” under
Article II.
487 U.S. at 689–90. Whatever an official’s functions may be,
“the real question is whether the removal restrictions are of
such a nature that they impede the President’s ability to
perform his constitutional duty.” Id. at 691; see also Seila Law,
140 S. Ct. at 2216 (Thomas, J., concurring in part and
dissenting in part) (explaining that “the Court’s premise [in
Humphrey’s Executor] was entirely wrong” because “[t]he
Constitution does not permit the creation of officers exercising
‘quasi-legislative’ and ‘quasi-judicial powers’ in ‘quasi-
legislative’ and ‘quasi-judicial agencies’”).
 30
In line with this reasoning, the Court has invalidated for-
cause removal limitations for executive officers who perform
judicial functions. It struck down the double layer of removal
protection for members of the PCAOB because they were
executive officers, despite their judicial functions. See Free
Enterprise Fund, 561 U.S. at 498. Similarly, the Court
invalidated the removal restrictions for the Director of the
CFPB, irrespective of his adjudicatory functions. Seila Law,
140 S. Ct. at 2193 (detailing the CFPB’s “extensive
adjudicatory authority”).
Admittedly, the ALJs at issue here have only adjudicatory
functions, whereas the CFPB Director and the members of the
PCAOB performed adjudicatory as well as other functions. See
Appointed Amicus Br. 4; Appointed Amicus Rep. Br. 12. Yet
this makes no constitutional difference. The Court has
emphasized that officers exercise the executive power,
irrespective of what functions they perform. See Freytag, 501
U.S. at 901, 907 (Scalia, J., concurring in part) (contending that
the Tax Court, despite having exclusively adjudicatory
functions, is an executive “department,” the head of which is
“answerable to the President”). Moreover, even if some for-
cause limitations on removal of ALJs may fit under the
exception for inferior officers in Morrison, a question not
presented here, the arguments raised by amicus regarding
“adjudicatory independence” cannot justify a double layer of
removal protection, which the Supreme Court specifically held
unconstitutional in Free Enterprise Fund.
The cases reinforce that regardless of their particular
functions—adjudication, rulemaking, prosecution, etc.—
officers within the Executive Branch exercise the executive
power. The President or someone directly accountable to him
must have the power to control officers executing the law, and
ALJs are no exception.
 31
3.
The court-appointed amicus also argues that two layers of
for-cause removal protection are acceptable because
Agriculture ALJs “do not wield expansive enforcement or
policymaking powers.” Appointed Amicus Br. 24. This
argument just reframes the previous argument—namely,
because ALJs are not exercising traditional executive
functions, they may be insulated from the President’s control.
Even on functionalist grounds, however, amicus is mistaken.
As the Supreme Court noted in Lucia, ALJ adjudication is
an enforcement power. 138 S. Ct. at 2049 (explaining that ALJ
adjudication is simply “one way” agencies “enforce the
nation’s … laws”). In enforcing the law, ALJs play a
substantial role in formulating an agency’s policy. While ALJs
cannot promulgate department-wide regulations, they
nonetheless “determine, on a case-by-case basis, the policy of
an executive branch agency.” Sec’y of Educ. Rev. of ALJ
Decisions, 15 Op. O.L.C. 8, 15 (1991). Moreover, as the Court
has recognized, ALJs have “significant discretion” when
exercising their “important functions.” Lucia, 138 S. Ct. at
2053 (citing Freytag, 501 U.S. at 882).
In particular, the Horse Protection Act requires ALJs, who
act on behalf of the Secretary, to make discretionary decisions
that necessarily implicate policy determinations. For instance,
in determining the size of a monetary penalty, Agriculture
ALJs must weigh subjective factors such as the “nature,
circumstances, extent, and gravity of the” offense at issue. 15
U.S.C. § 1825(b)(1). The ALJs must then evaluate the
accused’s “degree of culpability, any history of prior offenses,
ability to pay, [the punishment’s] effect on ability to continue
to do business, and such other matters as justice may require.”
Id. The ALJs also have broad discretion to disqualify horse
trainers from their occupation. Id. § 1825(c). Because ALJs
have such wide discretion to determine violations of the law
 32
and craft penalties—penalties that the Department may have to
defend in court as appropriate and legal executions of the law—
their deliberations necessarily include sensitive policy
decisions. Contrary to amicus’ representations, such
policymaking discretion, in which an officer must choose
between a range of lawful options, is an exercise of executive
power and therefore must be subject to the President’s control.
At bottom, however, the Constitution does not separate
functions, but powers. Amicus’ arguments thus fail for a
fundamental reason. ALJs are executive officers exercising an
aspect of the executive power vested in the President. Yet an
ALJ’s discretion is insulated from the supervision of both the
President and the Secretary of Agriculture. If the Secretary
disagrees with an ALJ’s policy preferences—for instance, if he
thinks the ALJ routinely imposes overly harsh, or insufficiently
harsh, penalties—the double layer of for-cause removal
protection means that the Secretary has virtually no power to
remove the ALJ and replace him with an officer willing to carry
out the administration’s policy preferences. Indeed, according
to the court-appointed amicus, one of the primary benefits of
tenure protections is to block the Secretary from removing “an
ALJ for failure to render a decision favoring the agency’s
policy positions.” Appointed Amicus Br. 16. This naturally
raises the question, whose policy positions should the ALJ
promote if not the agency for which he works?
No one questions that ALJs have an obligation to follow
the law, but discretionary decisions implicating agency policy
cannot be doubly insulated from democratic control without
transgressing the vesting of executive power in the President
and the Constitution’s careful separation of powers.
4.
The court-appointed amicus also minimizes the
independence of Agriculture ALJs by focusing on the
 33
Secretary’s other oversight tools. First, the amicus notes that
because the Secretary has the statutory authority to preside over
each case himself, he need not use ALJs in the first place. See
15 U.S.C. § 1825(b)(1). Second, the Secretary has the power to
review ALJ decisions de novo—a responsibility he has
delegated to the agency’s Judicial Officer. See 7 U.S.C.
§ 2204-2; 7 C.F.R. § 1.145.
These oversight mechanisms cannot compensate for the
loss of control that follows from the double restraints on the
removal power. Amicus’ arguments minimizing the
importance of ALJ authority and independence cannot be
reconciled with Lucia, which held that ALJs are “officers” of
the United States, meaning that by definition they exercise
significant authority under the laws of the United States.
Specifically, the Court concluded that ALJs in the SEC wield
“significant authority” in executing the law even though the
Commissioners, like the Secretary, are free to review and
reverse decisions by ALJs. Lucia, 138 S. Ct. at 2052–54. The
Court emphasized the fact that an ALJ’s decision can become
final if the “SEC declines review,” an important “last-word
capacity.” Id. at 2054. The same is true of decisions rendered
by Agriculture ALJs. See 7 C.F.R. § 2.27(a)(1) (providing that
“decisions shall become final” unless appealed to the
Secretary). ALJs wield meaningful, independent power despite
existing forms of oversight.
The decisions of Agriculture ALJs may be countermanded
by other officers, but that is not sufficient to place ALJs within
the chain of command to the President. De novo review by the
Secretary or Judicial Officer cannot replace control through the
removal power. As the Supreme Court recognized in Free
Enterprise Fund, “[b]road power over Board functions is not
equivalent to the power to remove Board members.” 561 U.S.
at 504. The constitutionally required control cannot be
exercised through micromanaging the ALJ’s activities, or even
 34
by promulgating regulations to govern or limit the ALJ’s
discretion. Id. Control over subordinates can be practically
exercised in a variety of ways, but the removal power is the
necessary constitutional minimum because it recognizes that
the President sets the policies of the Executive Branch and
remains accountable to the people for ensuring that his officers
follow those policies. See, e.g., Myers, 272 U.S. at 117
(concluding that the removal power is “essential to the
execution of the laws”); id. at 245 (Brandeis, J., dissenting)
(concluding that the “ability to remove a subordinate executive
officer” is “essential [to] effective government”).
Removal creates the proper chain of command. Proper
supervision of ALJs cannot mean that the Secretary of
Agriculture must adjudicate or review every case under the
Horse Protection Act and countless other statutes. “[T]he
various ‘bureaucratic minutiae’ a President might use to corral
agency personnel [are] no substitute for at will removal.” Seila
Law, 140 S. Ct. at 2207 (quoting Free Enterprise Fund, 561
U.S. at 500); see also Bowsher, 478 U.S. at 726 (“Once an
officer is appointed, it is only the authority that can remove him
… that he must fear and, in the performance of his functions,
obey.”) (cleaned up). While the Secretary has some
mechanisms to oversee the ALJs, such limited checks cannot
provide the essential democratic accountability that follows
from being removable at will.
5.
Finally, the court-appointed amicus argues that
“[d]isposing of safeguards for ALJ adjudicatory independence
would raise serious due process concerns.” Appointed Amicus
Br. 17. The scope of due process protections, however, must be
understood in light of the particular context of Executive
Branch adjudication. Outside Article III courts, the balancing
test in Mathews v. Eldridge governs “what process is due.” 424
U.S. 319, 349 (1976). The Supreme Court has explained that
 35
“due process is flexible and calls for such procedural
protections as the particular situation demands.” Morrisey v.
Brewer, 408 U.S. 471, 481 (1972); see also UDC Chairs
Chapter, Am. Ass’n of Univ. Profs. v. Bd. of Trustees of Univ.
of Dist. of Columbia, 56 F.3d 1469, 1472 (D.C. Cir. 1995)
(quoting Morrisey, 408 U.S. at 483); William Baude,
Adjudication Outside Article III, 133 Harv. L. Rev 1511, 1521
(2020) (explaining that “[b]oth judicial and executive bodies
can engage in the procedure of adjudication, but they do so
pursuant to different kinds of power”). As amicus properly
recognizes, “the requirements of due process in administrative
adjudication are not identical to those applicable to Article III
judges.” Appointed Amicus Br. 18.
Whatever the scope of such administrative due process
requirements, they are not undermined through adjudication by
a politically accountable officer. Administrative adjudication
has historically been undertaken by heads of agencies and
administrative law judges who were removable at will. In this
case, Congress vested the power to adjudicate cases under the
Horse Protection Act in the Secretary of Agriculture, who is of
course removable at will by the President. Amicus defends the
ALJ removal protections by relying on the fact that the
Secretary can lawfully preside over USDA hearings. Yet if the
Secretary can preside, it cannot violate due process for the
presiding ALJ to also be subject to removal at will (or to be
protected by only one layer of for-cause removal protection).
Furthermore, prior to the APA’s enactment, the removal and
promotion of administrative adjudicators were “determined by
the ratings given them by the agency.” Ramspeck, 345 U.S. at
130. The lack of adjudicatory independence prior to the APA,
however, posed no constitutional problems. See Marcello v.
Bonds, 349 U.S. 302, 311 (1955) (holding that it does not
violate due process to have an adjudicator who is “subject to
the supervision and control of officials in the Immigration
Service charged with investigative and prosecuting
 36
functions”). Even after the APA’s enactment, three decades
elapsed before ALJs were afforded a double layer of for-cause
protection from removal.
Generalized claims of due process for administrative
adjudication cannot overcome the constitutional requirement
that the President must have the power to control officers who
execute the law and to remove them if necessary. That principle
applies with equal force to ALJs who execute the law through
adjudication.
* * *
The law is clear: “[T]ext, first principles, the First
Congress’s decision in 1789, [and precedent] all establish that
the President’s removal power is the rule, not the exception.”
Seila Law, 140 S. Ct. at 2206. The double layer of for-cause
removal protection insulating the Agriculture ALJs violates the
Constitution’s separation of powers. Officers executing the law
must be accountable to the President and, through this chain of
command, to the people. I would therefore hold 5 U.S.C.
§ 7521(a) unconstitutional as applied to ALJs within the
USDA.
IV.
The final issue is remedial—how much of the statute to
hold unconstitutional and what relief to provide to the
petitioners. When holding a statute unconstitutional, we should
“refrain from invalidating more of the statute than is
necessary.” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684
(1987) (citation omitted); see also Seila Law, 140 S. Ct. at 2209
(finding the statute’s “provisions are capable of functioning
independently,” and therefore invalidating only the removal
restrictions while leaving the rest of the statute intact); id.
(explaining that without the removal restrictions, “the
constitutional violation would disappear”).
 37
Because petitioners challenged only the constitutionality
of two layers of removal protection, I would go no further than
to invalidate one of the for-cause removal limits. The most
straightforward way to accomplish this result is to hold the
statute unconstitutional insofar as it requires the MSPB to
determine whether there is good cause to remove the ALJ—the
provision stating that cause will be “established and determined
by the [MSPB] on the record after opportunity for hearing
before the Board.” 5 U.S.C. § 7521(a). This would leave one
layer of for-cause protection—the Secretary alone would be
responsible for determining whether there is good cause to
remove an ALJ. This holding would cure the constitutional
defect identified by Free Enterprise Fund because it eliminates
the double for-cause framework insulating an executive officer
from oversight.11
Section 7521(a) is unconstitutional as applied to the
Agriculture ALJs, and therefore the orders against the
petitioners must be vacated. Remand to the agency for further
proceedings must be to a properly appointed ALJ, as the
majority holds, and also to an ALJ not subject to a double layer
of for-cause removal protection.12

11
I do not address the constitutionality of any other language in
Section 7521(a), including whether it is constitutional for the statute
to provide that the Secretary may remove an ALJ “only for cause”—
i.e., whether a single layer of for-cause removal protection is
constitutional.
12
One potential complication with a remand is that if the Secretary
removes an ALJ, the ALJ could seek judicial review in the U.S. Court
of Federal Claims. 28 U.S.C. § 1491(a). That court’s decisions are
reviewed by the Federal Circuit, see 28 U.S.C. § 1295(a)(3), which,
in turn, is not bound by this court’s precedents and could reach a
different conclusion about the lawfulness of Section 7521(a). For
practical purposes, then, ALJs could remain protected by the dual
layer despite a decision from this court holding such a scheme
 38
* * *
The majority allows the government to argue before the
agency that constitutional questions should be left to the courts
and then argue before this court that constitutional questions
should be left to the agency. We should not allow the agency
to have its cake and eat it too. The petitioners properly
presented their constitutional challenge to this court, and no
rule of law requires that the argument be presented to the
agency first. In the wake of Seila Law, Free Enterprise Fund,
and Lucia, there can be no doubt that Agriculture ALJs enjoy
an unconstitutional degree of freedom from oversight.
Insulating ALJs with two layers of tenure protection dissipates
the executive power and runs afoul of separation of powers.
Petitioners should not have to relitigate their claims before an
agency adjudicator who lacks the requisite constitutional
accountability. I respectfully dissent.

unconstitutional. This issue was not briefed by the parties, and it is
unnecessary to opine on such hypotheticals here.