Thursday, September 04, 2008

CAFC hears DBC, parallel case to Translogic on appointments issue

An "easy" way out to avoid the problem may be to rule that the time to challenge the administrative judges was at the time of the Board hearing, and not well after the Board hearing. The CAFC could simply say that it is "too late" to make this constitutional appeal for the first time with the CAFC. The issue was not properly preserved.

Separately, the government's case on the de facto officer doctrine looks weak. And, can the de facto officer doctrine be applied retroactively by statute?

How easily can the CAFC make this problem go away?


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