An administrative agency lacks jurisdiction to decide a constitutional challenge that asks it to act contrary to its statutory provisions. See, e.g., Riggin v. Off. of Senate Fair Emp. Pracs., 61 F.3d 1563, 1565 (Fed. Cir. 1995). The question then is: when and where should a party raise such a constitutional challenge? The Federal Circuit recently answered this question in Security People, Inc. v. Iancu, 971 F.3d 1355, 1360–61 (Fed. Cir. 2020)—holding that a constitutional challenge regarding the Patent Trial and Appeal Board’s (PTAB) ability to retroactively invalidate a patent in inter partes review (IPR) proceedings as provided in the statute must be raised immediately following finality of that the IPR decision, not in a separate action under the Administrative Procedures Act (APA).
In Security People, the appellant’s patent was invalidated in a prior IPR proceeding conducted by the PTAB.1 The appellant appealed the PTAB’s decision to the Federal Circuit, raising only the patentability issues that were the subject of the IPR proceeding. The Federal Circuit affirmed. Thereafter, the appellant filed a separate district court action against the USPTO under the APA “seek[ing] a declaratory judgment that the retroactive application of an inter partes review proceeding to cancel claims of its patent violated its constitutional rights, namely its Fifth Amendment due process right.”2 Sec. People, 971 F.3d at 1358. The USPTO successfully moved to dismiss the district court’s action for lack of subject matter jurisdiction given the statutorily exclusive “broad Federal Circuit review” of PTAB decisions, which precluded any such review by a district court.
On appeal, the appellant made two main arguments: (1) because a retroactivity challenge required factual findings and the PTAB was precluded from adjudicating the constitutionality of its retroactively applicable decisions, the facts required to prove retroactivity could only have been presented for the first time, and then impermissibly so, on appeal; and (2) its as-applied constitutional challenge was not yet ripe until the USPTO cancelled its patent claims, which did not happen until after the Federal Circuit affirmed the PTAB’s decision, and that it had to exhaust the non-constitutional claims raised in that appeal before raising its constitutional challenge.
The Federal Circuit rejected both arguments. The court first reiterated its statutory authority to review constitutional questions. Sec. People, ...
