Corporate Governance

FEF v. PCAOB: Off to the Supreme Court

By J. Robert Brown

As expected, plaintiffs have filed a cert petition in the PCAOB case.  Reading it over, one would think this the single most important case of constitutional magnitude in a lifetime.  In fact, it largely turns on whether Congress can limit the removal authority of persons within independent agencies.  The practice is relatively common.  As the PCAOB noted in its brief opposing rehearing en banc:

• The Inspector General of the Postal Service is an inferior officer. See 5 U.S.C. App. 3 § 8G(f );About the USPS OIG, at http://www.uspsoig.gov/about.htm. But he is removable only for cause by the Governors of the Postal Service, who in turn are removable only for cause. 39 U.S.C. § 202(a)(1), (e)(3). Likewise, the Chief Actuary of the Social Security Administration is an inferior officer. See 42 U.S.C. § 902(c)(1); Office of the Chief Actuary, at http://www.ssa.gov/ OACT/actuaries/organization.html. He too is removable only for cause, and the Commissioner to whom he reports is removable only for cause. 42 U.S.C. § 902(a)(3), (c)(1). Finally, many independent agencies have administrative law judges (ALJs) who are subject to for-cause removal protections. Although some are mere employees, others are clearly inferior officers. ALJs in the Federal Mine Safety and Health Review Commission, for example, are inferior officers because their decisions are final rather than recommendatory and are subject only to limited review. See 30 U.S.C. § 823(d)(1), (2)(A)(ii)(I); Landry, 204 F.3d at 1133-34. All of those ALJs, however, are removable only for cause by officers who in turn are removable only for cause. 30 U.S.C. § 823(b)(1), (2) (incorporating 5 U.S.C. § 7521); 5 U.S.C. § 1202(d). (ALJs cannot be distinguished on the grounds that agencies can choose whether to use them, and that their decisions are subject to agency review. See 537 F.3d at 699 n.8 (Kavanaugh, J., dissenting). 

Plaintiffs' brief is once again written in an unfortunately non-gender neutral manner.  Mary Schapiro, the incoming chair of the SEC, would no doubt be surprised to learn on page 17 that "he serves as Chairman 'at the pleasure of the President.'"  She would likewise be surprised to hear that, in creating the PCAOB,  Congress denied the Chairman "his traditional statutory authority to 'appoint and supervise'" members of the body.  And this is not the only example.  On this basis alone the petition deserves to be denied.

We will wait for the government's response before venturing a prediction on the merits.

The petition is posted on the DU Corporate Governance web site.

Full post as published by The Race to the Bottom on January 07, 2009 (boomark / email).