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 ...
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