Arthrex Argument Being Added to Briefs

As detailed back in December, the government has sought en banc rehearing in Arthrex. In its petition, the government revisited the bases for the Court’s October decision and encouraged the Court to also grant rehearing in the Polaris dispute so that the court might address forfeiture in Arthrex and reach the remaining issues in Polaris (which is distinguished in the petition as having seasonably argued the issue before the agency).

In its Reply of last week, the government once again focuses on forfeiture, arguing that raising an Appointments Clause issue on appeal is too late.  To emphasize the issue, the Reply lists all of the newly filed appeals raising the issue for the first time.
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Gov’t Questions Fundamental Aspects of Court Decision

As promised, the government has now sought en banc rehearing in Arthrex. In its petition, the government revisits the bases for the Court’s October decision and encourages the Court to also grant rehearing in the Polaris dispute so that the court might address forfeiture in Arthrex and reach the remaining issues in Polaris (which is distinguished in the petition as having seasonably argued the issue before the agency)

I think it is safe to predict the CAFC takes this one up.


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