Developing the Duffy Defect: Identifying Which Government Workers Are Constitutionally Required to Be Appointed

Article excerpt

I. Introduction

In 2007, a brief article by Professor John Duffy questioned the constitutionality of the appointment method for Administrative Patent Judges. (1) Duffy argued that Administrative Patent Judges were at least inferior officers under the Appointments Clause due to the substantial power they held--and with that contention, questioned the validity of eight years of Board of Patent Appeals and Interferences determinations. (2) The article made such an impact that Congress enacted a statutory patch to correct the issue. (3) But the spark didn't die there--a series of articles followed "The Duffy Defect," (4) questioning the applicability of the Appointments Clause to a range of government actors, from Bankruptcy Judges to the Pay Czar. (5) The impact of Duffy's article reached courtrooms as well, prompting an Appointments Clause challenge in Tucker v. Commissioner (6) In the United States Tax Court, Tucker argued that Appeals Officers or their managers within the Internal Revenue Service (IRS) are inferior officers of the United States because they provide statutorily required Collection Due Process (CDP) hearings. (7) In 2010, the IRS Office of Appeals received over 49,000 CDP hearing requests to determine whether it would move forward with proposed liens or levies on delinquent taxes, and that number increases each year. (8) A determination that CDP conductors are officers could halt compelled tax collection until appropriate personnel are appointed. Even more concerning, such a holding could compel the same result for similarly situated personnel in other federal agencies. A prime example is the Social Security Administration, which received 408,314 requests for benefit-determination hearings in the six months ending in March 2011. (9)

The Appointments Clause requires that officers of the United States be appointed by one of its specified methods. Principal officers must be appointed by the President with the advice and consent of the Senate. (10) With statutory permission, inferior officers may be appointed directly by the President alone, the Courts of Law, or Heads of Departments. (11) But the Constitution provides little guidance on the characteristics that define an officer. In one of the most thorough opinions to address the distinction between constitutional officers and mere employees, the Tax Court rejected Tucker's arguments, ruling that neither Appeals Officers nor their managers are officers in the constitutional sense and therefore need not be appointed. (12) The court first found the position of Appeals Officer was not "established by Law." (13) The court then found that IRS agents were mere employees because their decisions were not the "last word" of the agency. (14) The court further determined that the statutes establishing CDP hearings assigned those duties to the entire Office of Appeals, rather than to the named position of Appeals Officer, thus precluding the application of the Appointments Clause. (15) The Tax Court concluded that finding Appeals Officers to be constitutional officers would be an inappropriate singling out, because a myriad of other administrative government actors who perform similar duties were not appointed. (16) This Article concludes that, in so holding, the Tax Court provides Congress with a blueprint on how to circumvent the Appointments Clause. (17)

The Tax Court decision is on appeal to the Court of Appeals for the District of Columbia Circuit. (18) But even if Tucker settles his appellate case, the spark ignited by Duffy's article suggests that this issue will resurface, in and out of the tax context, and in every circuit. This Article goes beyond Duffy's brief analysis to explore the officer-versus-employee distinction that Tucker highlighted and that is bound to become a common challenge to agency action. Duffy looked at the question for patent judges, but this Article sets forth a broader framework that can be applied to any government personnel. …


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