Whether courts have discretion to apply a precedential Appointments Clause decision in pending cases where the issue was not raised in the opening appellate brief, and if so, under what circumstances

QUESTION PRESENTED The Constitution requires that Officers of the United States be appointed with the “Advice and Consent of the Senate.” U.S. Const. art. II, § 2, cl. 2. This Court has enforced that mandate vigorously, to the point of exercising discretion to hear otherwise forfeited Appointments Clause challenges. See, e.g., Freytag v. Comm ’r, 501 U.S. 868 (1991). But the Court has not defined the bounds of that discretion or whether such challenges may be forfeited at all. As Justice Scalia observed in Freytag, the lower courts “remain without guidance as to whether [an Appointments Clause] forfeiture must, or even may, be disregarded.” Jd. at 893 (Scalia, J., concurring). Without that guidance, the lower courts have followed different paths, with the Federal Circuit recently striking out in a unique direction. In Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), the court held that the appointment of Administrative Patent Judges violated the Appointments Clause, but then categorically refused to apply that holding in pending cases where the issue had not been raised in the opening appellate brief, even those (like this one) where the briefing had not concluded. That approach, which eschews any discretion, is inconsistent with the decisions of this Court and other circuits, as well as common sense. The question presented is: Following a precedential decision sustaining an Appointments Clause challenge, does a court have discretion to apply the decision in pending cases where it has not already been raised, and if so, under what circumstances should it exercise that discretion?