Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel

Constitutional Concerns Presented by Proposed
Orderly Liquidation Authority Panel
The Orderly Liquidation Authority Panel that would be authorized by section 202 of the
Committee Print of the Restoring American Financial Stability Act of 2010 would
have independent jurisdiction to determine the statutory permissibility of petitions
issued by the Secretary of the Treasury to appoint the Federal Deposit Insurance Cor-
poration as receiver for certain systemically important financial companies that are in
default or in danger of default. If this Panel—a bankruptcy court tribunal composed of
three judges from the U.S. Bankruptcy Court for the District of Delaware who are ap-
pointed by the Chief Judge of that court—were deemed to be a part of the Executive
Branch, its exercise of this jurisdiction would raise both Appointments Clause and
separation of powers concerns.
If the Panel instead were deemed to be a part of the Judicial Branch, the Appointments
Clause concerns would be mitigated, if not resolved, but the separation of powers con-
cerns would be heightened.
The Panel could be located within the Judicial Branch while addressing both the Ap-
pointments Clause and separation of powers concerns if Congress were to vest juris-
diction to review receivership petitions in an Article III court, with that court author-
ized to refer such petitions to the Panel and to withdraw referrals under appropriate
circumstances, or if the Panel were to consist of Article III judges rather than bank-
ruptcy judges. This structure, however, would likely prevent the Panel from adjudicat-
ing petitions where the financial company consents to the appointment of the FDIC as
receiver and thus does not present a justiciable case or controversy.
April 19, 2010
LETTER OPINION FOR THE ASSISTANT SECRETARY
FOR FINANCIAL INSTITUTIONS
DEPARTMENT OF THE TREASURY
This letter is to convey our constitutional concerns regarding the Or-
derly Liquidation Authority Panel (“Panel”) that would be authorized by
section 202 of the Committee Print (“Print”) of the Restoring American
Financial Stability Act of 2010 (“Act”). See S. Comm. on Banking,
Housing, and Urban Affairs, Restoring American Financial Stability Act
of 2010, 111th Cong. § 202 (Comm. Print 2010). As a bankruptcy court
tribunal with independent jurisdiction to determine the statutory permissi-
bility of petitions issued by the Secretary of the Treasury (“Secretary”)
under section 202 of the Act, the Panel would constitute an unusual type
of hybrid adjudicatory entity that defies ready categorization. Congress’s
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
establishment of such an entity, however it is categorized, would be of
uncertain constitutionality because it would blur the lines between adju-
dications conducted by judges who enjoy the Article III protections of
irreducible salary and life tenure and adjudications conducted by judges
who lack those protections. The level of this uncertainty would vary to
some extent, however, depending on which branch of government the
Panel is determined to be located in for constitutional purposes. In our
view, a court might characterize the Panel as residing in either the Execu-
tive Branch or the Judicial Branch. A determination that the Panel resides
in the Executive Branch would present a relatively lower risk that the
Panel violates the separation of powers, but would also render the current
method of appointing the Panel’s judges questionable under the Appoint-
ments Clause of the Constitution, U.S. Const. art. II, § 2, cl. 2. A determi-
nation that the Panel resides in the Judicial Branch would mitigate, if not
resolve, these Appointments Clause concerns, but would in turn heighten
the potential threat to judicial integrity—and the separation of powers
concerns—presented by the Panel’s structure.
After setting forth the statutory background, we consider the Appoint-
ments Clause and separation of powers issues that the Print raises, analyz-
ing these issues separately depending on whether the Panel is determined
to be located for constitutional purposes in the Executive Branch or the
Judicial Branch. We then describe how the Panel could be structured to
resolve these issues while still locating it within the Judicial Branch, but
note that the Panel, even as restructured, would likely lack authority to
consider one class of petitions filed by the Secretary under section 202—
namely, those that concern financial companies that have consented to the
appointment of the Federal Deposit Insurance Corporation (“FDIC”) as
their receiver—because such petitions may well not give rise to a justicia-
ble “Case[]” or “Controvers[y]” within the meaning of Article III of the
Constitution, U.S. Const. art. III, § 2, cl. 1.
I.
The Print would require the Secretary to appoint the FDIC as receiver
for certain systemically important financial companies that are in de-
fault or in danger of default, and would establish a comprehensive set
of procedures to govern the making of such appointments. Print §§ 202,
127
34 Op. O.L.C. 126 (2010)
203. Specifically, the Print would direct the Secretary, upon receiving a
written recommendation regarding a company from the FDIC and the
Board of Governors of the Federal Reserve System, to determine
whether the company meets the statutory requirements for FDIC re-
ceivership. Id. § 203(a), (b). If the Secretary determines that the com-
pany qualifies for receivership, he must petition the Panel for an order
authorizing the appointment of the FDIC as receiver, and this petition
must be accompanied by notice to the FDIC and the subject company.
Id. §§ 202(b)(1)(A)(i), 203(b). The Print would establish the Panel within
the U.S. Bankruptcy Court for the District of Delaware, and would direct
that it be composed of three judges from that court appointed by the
Chief Judge of the court. Id. § 202(a)(1), (2). The Panel would have
“original and exclusive jurisdiction of proceedings to consider petitions
by the Secretary,” id. § 202(a)(3), and would be charged with “estab-
lish[ing] such rules and procedures as may be necessary to ensure the
orderly conduct of [its] proceedings,” id. § 202(c)(1).
Within twenty-four hours of receiving a petition, the Panel would be
required to issue a “final” determination regarding whether “substantial
evidence” supports the Secretary’s determination that “the covered finan-
cial company is in default or in danger of default.” Id. § 202(b)(1)(A)(iii),
(B). If the Panel determines that there is substantial evidence for the
Secretary’s determination, it would have to “issue an order immediately
authorizing the Secretary to appoint the [FDIC] as receiver of the . . .
company.” Id. § 202(b)(1)(A)(iv). If the Panel determines that there is
not substantial evidence for the Secretary’s determination, it would have
to provide the Secretary with a written statement of the Panel’s reasons
for so determining and afford the Secretary an opportunity to amend and
refile the petition. Id. Before the Panel could issue its final determi-
nation, it would have to provide the covered financial company notice
and a hearing at which the company “may oppose the petition.” Id.
§ 202(b)(1)(A)(iii).
After the Panel has issued its final determination, both the Secretary
and the covered financial company (through its board of directors)
would be authorized to appeal that determination to the U.S. Court of
Appeals for the Third Circuit, although the Third Circuit would have
jurisdiction over appeals by the company only if the company “did not
acquiesce or consent to the appointment of a receiver by the Secretary.”
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
Id. § 202(b)(2)(A)(i), (ii). Review by the court of appeals would “be
limited to whether the determination of the Secretary that a covered
financial company is in default or in danger of default is supported by
substantial evidence.” Id. § 202(b)(2)(A)(iv). Once the Third Circuit
has ruled, the Secretary or the company (through its board of directors)
would be authorized to petition the Supreme Court to review that ruling.
See id. § 202(b)(2)(B).
II.
The Panel appears to be a novel type of government entity. It would be
located by statute within the U.S. Bankruptcy Court for the District of
Delaware, Print § 202(a)(1); would be composed of bankruptcy judges
appointed by the Chief Judge of that court, id. § 202(a)(1), (2); and would
be charged with rendering final decisions regarding the Secretary’s au-
thority under the Act to appoint the FDIC as receiver of troubled financial
companies, id. § 202(b)(1)(A)(iii), (B). We are not aware of any precedent
for Congress creating an entity of precisely this type, i.e., one (a) located
within a tribunal that is by statute part of the federal judiciary, see 28
U.S.C. § 151 (2006) (describing bankruptcy courts as “unit[s] of the
district court”); (b) composed of non-Article III judges appointed to the
entity by an officer located by statute in the Judicial Branch, see id.
§ 152(a)(1) (describing bankruptcy judges as “judicial officers of the
United States district court”); infra note 1; and (c) vested with independ-
ent jurisdiction to render final, binding decisions regarding an executive
agency’s exercise of its statutory authority. And while “constitutional
principles of separated powers are not violated . . . by mere anomaly or
innovation,” Mistretta v. United States, 488 U.S. 361, 385 (1989), this
unconventional structure does, in our view, raise constitutional concerns.
The nature of these concerns differs somewhat, however, depending on
whether the Panel is properly conceived of as residing for constitutional
purposes within the Executive Branch or the Judicial Branch. Because
the relevant judicial precedents do not afford definitive guidance with
respect to locating the Panel in either branch, we consider separately the
distinct constitutional concerns raised by each possibility.
129
34 Op. O.L.C. 126 (2010)
A.
There is an argument that the Print establishes the Panel within the Ex-
ecutive Branch for constitutional purposes, on the theory that the Execu-
tive Branch is the most plausible location for a non-Article III tribunal
charged with adjudicating the permissibility of Executive Branch action
affecting private rights. Cf. Freytag v. Comm’r, 501 U.S. 868, 909 (1991)
(Scalia, J., concurring in part and concurring in the judgment, joined by
O’Connor, Kennedy, and Souter, JJ.) (arguing that “[legislative] tribunals,
like any other administrative board, exercise the executive power, not
the judicial power of the United States”). 1 Further supporting this conclu-
sion is the fact that the creation of such an Executive Branch tribunal
would not be clearly inconsistent with constitutional limitations on the
legislative assignment of adjudicative functions to non-Article III courts,
although there are aspects of the Panel’s structure that give us some pause
in this regard.
The Supreme Court has explained that Congress has “wide discretion to
assign the task of adjudication in cases arising under federal law to [non-
Article III] legislative tribunals,” Freytag, 501 U.S. at 889, and that “the
constitutionality of a given congressional delegation of adjudicative
functions to [such a tribunal] must be assessed by reference to the purpos-
es underlying the requirements of Article III,” CFTC v. Schor, 478 U.S.
833, 847 (1986). “[I]n reviewing Article III challenges” to the establish-
ment of non-Article III courts, the Supreme Court weighs “a number of
factors, none of which [it] has . . . deemed determinative, with an eye to
the practical effect that the congressional action will have on the consti-
tutionally assigned role of the federal judiciary.” Id. at 851. Among the
factors the Court has focused on “are the extent to which the ‘essential
attributes of judicial power’ are reserved to Article III courts, and, con-
versely, the extent to which the non-Article III forum exercises the range
1 The Panel—like the bankruptcy courts—would not constitute an Article III court,
because the bankruptcy judges who would serve on the Panel do not enjoy the constitu-
tional protections—life tenure and an irreducible compensation—that Article III judges
must possess. See U.S. Const. art. III, § 1; 28 U.S.C. § 152(a)(1) (bankruptcy judges
appointed to fourteen-year terms); id. § 152(e) (authorizing removal of bankruptcy
judges); see generally N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50,
60–61 (1982) (plurality op.).
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
of jurisdiction and powers normally vested only in Article III courts, the
origins and importance of the right to be adjudicated, and the concerns
that drove Congress to depart from the requirements of Article III.” Id.Here, the Panel would have the narrow function of adjudicating the
statutory permissibility of a single type of action undertaken by the Secre-
tary—albeit one with potentially significant consequences for the subject
financial company—and the government would be a party to the proceed-
ings. In addition, the Panel’s decisions would be subject to review by
Article III courts, even though that review would not be de novo. Given
these circumstances, Article III would not appear to categorically bar the
vesting of such a relatively limited adjudicatory function in a tribunal
such as the Panel whose members do not enjoy the constitutional protec-
tions afforded Article III judges. See id. at 853–54 (“‘[W]hen Congress
selects a quasi-judicial method of resolving matters that could be conclu-
sively determined by the Executive and Legislative Branches, the danger
of encroaching on the judicial powers is less than when private rights,
which are normally within the purview of the judiciary, are relegated as
an initial matter to administrative adjudication.” (quoting Thomas v.
Union Carbide Agric. Prods. Co., 473 U.S. 568, 589 (1985) (internal
quotation marks omitted))); cf. N. Pipeline Constr. Co. v. Marathon Pipe
Line Co., 458 U.S. 50, 67–68 (1982) (plurality opinion) (describing as
subject to adjudication in Article I tribunals “matters arising between the
Government and persons subject to its authority in connection with the
performance of the constitutional functions of the executive or legislative
departments” and “historically [subject to] determin[ation] exclusively by
those departments” (internal quotation marks and citations omitted)).
We are somewhat troubled, however, by the fact that the Panel, unlike
the other non-Article III tribunals of which we are aware, would be loc-
ated in an Article III court’s adjunct tribunal—namely, the Bankruptcy
Court for the District of Delaware—and composed of non-Article III
judges of that adjunct who would continue to serve in that capacity. See
Print § 202(a)(1), (2); In re Kilen, 129 B.R. 538, 542 (Bankr. N.D. Ill.
1991); supra p. 128. Although the Supreme Court has stated that “Con-
gress may authorize a federal judge, in an individual capacity, to perform
an executive function without violating the separation of powers,” it also
has suggested that “the function of resolving administrative claims”
cannot “be assigned to a court, or to judges acting as part of a court.”
131
34 Op. O.L.C. 126 (2010)
Mistretta, 488 U.S. at 404; cf. Letter for Edward P. Boland, Chairman,
Permanent Select Committee on Intelligence, U.S. House of Representa-
tives, from John M. Harmon, Assistant Attorney General, Office of Legal
Counsel, at 2 n.1 (Apr. 18, 1978) (“Harmon Memo”) (noting that Supreme
Court has raised concerns “over the assignment of Article III judges to
non-Article III tribunals” (citing Glidden Co. v. Zdanok, 370 U.S. 530,
540, 561 (1962), Ex parte Bakelite Corp., 279 U.S. 438, 460 (1929))).
Whether the service of bankruptcy judges on the Panel and the Panel’s
placement in a bankruptcy court would transgress this apparent limitation
on congressional authority to assign administrative power to “courts” and
“judges” is not entirely clear. But we believe that, were the Panel deemed
to be located in the Executive Branch, those aspects of its structure would
give rise to uncertainty regarding its constitutionality because they would
create at least some risk of the Panel “undermin[ing] the integrity of the
Judicial Branch.” Mistretta, 488 U.S. at 404.
An even clearer source of constitutional concern, were the Panel deter-
mined to be located within the Executive Branch, would be the possibility
that the Print’s method of appointing judges to serve on the Panel is
inconsistent with the Appointments Clause. The Appointments Clause
provides that:
[The President] . . . shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States, whose Appointments are not herein
otherwise provided for, and which shall be established by Law; but
the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of
Law, or in the Heads of Departments.
U.S. Const. art. II, § 2, cl. 2. Panel members would have been appointed
as bankruptcy judges by the U.S. Court of Appeals for the Third Circuit,
see Print § 202(a)(2); 28 U.S.C. § 152(a)(1), and would be appointed to
the Panel itself by the Chief Judge of the U.S. Bankruptcy Court for the
District of Delaware, see Print § 202(a)(1). Accordingly, if the Appoint-
ments Clause governs the means of appointing Panel members, they
would have to be inferior officers in order for their appointments to be
valid.
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
The judges serving on the Panel would issue final, binding decisions
controlling the Secretary’s authority to place private companies into
government receivership, and would appear to satisfy all of the other
relevant criteria necessary to qualify as constitutional officers within the
meaning of the Appointments Clause. See The Constitutional Separation
of Powers Between the President and Congress, 20 Op. O.L.C. 124, 148
(1996) (explaining that “[a]n appointee (1) to a position of employment
(2) within the federal government (3) that carries significant authority
pursuant to the laws of the United States is required to be an ‘Officer of
the United States,’” and must be appointed in conformity with the Ap-
pointments Clause); see also Buckley v. Valeo, 424 U.S. 1, 125–26 (1976)
(per curiam); cf. Freytag, 501 U.S. at 881–82 (special trial judges charged
with assisting U.S. Tax Court judges are officers of the United States).
Accordingly, the critical question concerns whether the Panel members
would properly be characterized as principal officers, in which case they
would have to be appointed by the President with the advice and consent
of the Senate, or inferior officers, in which case they could be appointed,
as the Print provides, by the Chief Judge of the U.S. Bankruptcy Court
for the District of Delaware, who would appear to qualify as a “Court[] of
Law” within the meaning of the Appointments Clause. Cf. Freytag, 501
U.S. at 888–92 (Chief Judge of Tax Court is “Court[] of Law” for purpos-
es of Appointments Clause).
The Supreme Court has “not set forth an exclusive criterion for distin-
guishing between principal and inferior officers for Appointments Clause
purposes.” Edmond v. United States, 520 U.S. 651, 661 (1997). In Morri-
son v. Olson, 487 U.S. 654 (1998), the Court considered four factors in
holding that an independent counsel authorized by the Ethics in Govern-
ment Act of 1978, 28 U.S.C. §§ 591–599, was an inferior officer: (a) the
independent counsel was subject to removal by a higher Executive Branch
official (the Attorney General), (b) she performed only limited duties,
(c) her jurisdiction was narrow, and (d) her tenure was limited. Id. at 671–
72. The Court later characterized these factors as not “definitive,” holding
in Edmond that civilians appointed by the Secretary of Transportation to
serve as judges on the Coast Guard Court of Criminal Appeals (“Court of
Criminal Appeals”) were inferior officers. 520 U.S. at 653, 661–66.
In Edmond, the Court acknowledged that judges on the Court of Crimi-
nal Appeals were not limited in “tenure” or “jurisdiction” as those terms
133
34 Op. O.L.C. 126 (2010)
were used in Morrison. Id. at 661. But the Edmond Court nonetheless
deemed them inferior officers because their work was subject to supervi-
sion by the Judge Advocate General of the Coast Guard (who controlled
administrative matters) and the executive-controlled Court of Appeals for
the Armed Forces (which could reverse the lower tribunal’s decisions and
prevent any final order from being issued). See id. at 664–65. The Court
summarized its approach when it stated that “we think it evident that
‘inferior officers’ are officers whose work is directed and supervised at
some level by others who were appointed by Presidential nomination with
the advice and consent of the Senate.” Id. at 663. In the course of its
analysis, the Edmond Court rejected the argument that the judges on the
Court of Criminal Appeals were akin to judges on the Tax Court (a non-
Article III court), whom the petitioners argued were principal officers
under the Court’s decision in Freytag, 501 U.S. 868. Expressly declining
to confirm this reading of Freytag, the Edmond Court noted “two signifi-
cant distinctions between Tax Court judges and Court of Criminal Ap-
peals judges” that explained why the latter were “inferior” officers even
if the former were not. Edmond, 520 U.S. at 665. First, decisions of the
Tax Court are not appealable to any higher Executive Branch tribunal, but
only to Article III courts; and second, “there is no officer comparable to a
Judge Advocate General who supervises the work of the Tax Court, with
power to determine its procedural rules, to remove any judge without
cause, and to order any decision submitted for review.” Id. at 665–66.
Morrison and Edmond indicate that if the Panel is deemed to be an Ex-
ecutive Branch tribunal, its members could well be principal officers for
purposes of the Appointments Clause. If so, they could only be appointed
by the President with the advice and consent of the Senate. Most im-
portantly, the decisions of the Panel, unlike the decisions issued by the
Court of Criminal Appeals, would not be reviewable by any superior
Executive Branch tribunal or official, but rather would be appealable only
to Article III courts—the Third Circuit followed by the Supreme Court.
Print § 202(b)(2)(A), (B). Moreover, Panel judges would not be subject
to removal from the Panel by any higher Executive Branch official—a
factor that the Court deemed significant in both Edmond and Morrison.
See Edmond, 520 U.S. at 664 (“It is conceded by the parties that the Judge
Advocate General may also remove a Court of Criminal Appeals judge
from his judicial assignment without cause. The power to remove officers,
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
we have recognized, is a powerful tool for control.”); Morrison, 487 U.S.
at 671 (observing that “appellant is subject to removal by a higher Execu-
tive Branch official”). 2 Indeed, the Act makes no express provision for
the removal of judges from the Panel. The authority of the Chief Judge
of the U.S. Bankruptcy Court for the District of Delaware to appoint
judges to the Panel does imply that the Chief Judge may also remove
them, see Keim v. United States, 177 U.S. 290, 293 (1900) (“In the ab-
sence of specific provision to the contrary, the power of removal from
office is incident to the power of appointment.”), but the circumstances
in which he would be able to do so are not clear. 3
B.
Alternatively, there is an argument for locating the Panel within the
Judicial Branch for constitutional purposes. As noted, the Print would
2 It could be argued that one factor identified in Morrison—limited jurisdiction—
weighs in favor of deeming the Panel’s judges inferior officers. 487 U.S. at 672. In a
sense, the Panel does have a relatively narrow jurisdiction, since it is charged solely with
reviewing the Secretary’s petitions for the appointment of the FDIC as receiver under the
Act. However, unlike the independent counsel in Morrison, who was responsible for
handling only a single investigation, see id. at 672, the Panel could be responsible for
reviewing numerous petitions, indicating a broader jurisdiction.
3 Were the Panel to be located in the Executive Branch, there would be the additional
constitutional question whether the separation of powers permits the appointment and
removal of the members of such an Executive Branch tribunal by judicial officers. Cf.
Morrison, 487 U.S. at 675–76 (statute providing for interbranch appointments constitu-
tionally impermissible where it would “impair the constitutional functions assigned to one
of the branches” or “if there [i]s some incongruity between the functions normally
performed by the [appointing] courts and the performance of their duty to appoint”
(internal quotation marks omitted)); id. at 682–83 (construing termination provisions of
the Ethics in Government Act not to give the Special Division of the U.S. Court of
Appeals for the D.C. Circuit “anything approaching the power to remove the counsel
while an investigation or court proceeding is still underway,” and noting that “this power
is vested solely in the Attorney General,” in concluding that “the Special Division’s
power to terminate does not pose a sufficient threat of judicial intrusion into matters that
are more properly within the Executive’s authority to require that the Act be invalidated
as inconsistent with Article III”); cf. also Freytag, 501 U.S. at 891 (noting that Tax Court,
whose judges are appointed by the President, with the advice and consent of the Senate,
and who are removable by the President for inefficiency, neglect of duty, or malfeasance
in office, “remains independent of the Executive and Legislative Branches,” and “[i]ts
decisions are not subject to review by either the Congress or the President”).
135
34 Op. O.L.C. 126 (2010)
structure the Panel as a tribunal composed of bankruptcy judges appointed
by the Chief Judge of the U.S. Bankruptcy Court for the District of Dela-
ware, and would locate the Panel within that court, thus perhaps suggest-
ing an intent on the part of its drafters to place the Panel in the same
branch of government as the bankruptcy courts. Bankruptcy courts may
well reside in the Judicial Branch as a constitutional matter. Cf. United
States v. Rowland, 789 F.2d 1169, 1171 (5th Cir. 1986) (characterizing
bankruptcy courts as part of Judicial Branch); In re 1900 M Rest. Assocs.,
Inc., 319 B.R. 302, 316 (Bankr. D.D.C. 2005) (same); In re Sharon Steel
Corp., 100 B.R. 767, 775 (Bankr. W.D. Pa. 1989) (same). The statute
designating the bankruptcy courts characterizes them as “unit[s] of the
district court,” 28 U.S.C. § 151, and another statutory provision character-
izes bankruptcy judges “as judicial officers of the United States district
court,” id. § 152(a)(1). Bankruptcy judges are also both appointed by
and subject to removal by judicial officers. Id. § 152(a)(1), (e). And,
finally, bankruptcy judges function as judicial “adjuncts” of the district
courts, qualifying for this status because in resolving proceedings arising
under the Bankruptcy Code, see title 11, U.S. Code, they act solely by
referral from—and under the supervision of—the district courts, which
have original jurisdiction over bankruptcy cases and proceedings, 28
U.S.C. § 1334 (2006). See Kilen, 129 B.R. at 542; cf. United States v.
Raddatz, 447 U.S. 667 (1980) (approving use of magistrates as adjuncts to
Article III courts).
If the Panel were determined to be located in the Judicial Branch, the
Appointments Clause analysis might differ, such that the Panel members
could be deemed inferior rather than principal officers. This conclusion
is far from certain, however, as the Supreme Court’s precedents do not
clearly establish how to ascertain the status of non-Executive Branch
officers under the Appointments Clause. Nevertheless, decisions address-
ing the status of Executive Branch officers suggest that a relevant consid-
eration in determining the status of any officer is whether there is some
level of direction and supervision by superior officers within that officer’s
branch. Cf. Edmond, 520 U.S. at 663 (“‘inferior officers’ are officers
whose work is directed and supervised at some level by others who were
appointed by Presidential nomination with the advice and consent of the
Senate”); id. at 662 (“Generally speaking, the term ‘inferior officer’
connotes a relationship with some higher ranking officer or officers below
136
Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
the President.”). Here, the Panel members would be “directed and super-
vised at some level,” id. at 663, by superior officers within the Judicial
Branch—namely, the Chief Judge of the U.S. Bankruptcy Court for the
District of Delaware, who may be able to remove them from their Panel
positions, see supra p. 135, and the Judicial Council of the Third Circuit,
which could remove them from their positions as bankruptcy judges under
certain circumstances, see 28 U.S.C. § 152(e). Moreover, the Third Cir-
cuit and the Supreme Court would be authorized to exercise appellate
review over the Panel’s decisions. Print § 202(b)(2)(A), (B). Thus, even
though the Panel members might be deemed principal officers if located
within the Executive Branch, due to the lack of higher-level Executive
Branch supervision, there is an argument that they should be deemed
inferior officers if located in the Judicial Branch, due to the supervision
to which they would be subject by Judicial Branch officers. Cf. Landry v.
FDIC, 204 F.3d 1125, 1143 (D.C. Cir. 2000) (noting that “it has long
been settled that federal magistrates are ‘inferior Officers’ under Article
II”). 4
But even if Appointments Clause concerns might be diminished by a
determination that the Panel is located within the Judicial Branch for
constitutional purposes, such a determination would heighten the sepa-
ration of powers concerns presented by the Panel’s hybrid structure. Al-
though the Panel would carry out an adjudicative function—deciding
whether particular petitions by the Secretary for the appointment of the
FDIC as receiver satisfy the relevant statutory criteria—its status as a
non-Article III court would mean that it could not exercise Article III
judicial power. See N. Pipeline Constr. Co., 458 U.S. at 59 (“The judicial
power of the United States must be exercised by courts having the attrib-
utes prescribed in Art. III.”). As a general matter, Congress may delegate
to the Judicial Branch functions that do not constitute the exercise of
Article III judicial power only if those additional functions “do not trench
upon the prerogatives of another Branch and . . . are appropriate to the
central mission of the Judiciary.” Mistretta, 488 U.S. at 388. For example,
4 This conclusion should not be taken as expressing a view on the status under the Ap-
pointments Clause of district judges, who of course enjoy life tenure, U.S. Const. art. III,
§ 1, and thus are not removable except by impeachment. See Weiss v. United States, 510
U.S. 163, 191 (1994) (Souter, J., concurring) (stating view that district court judges are
principal officers).
137
34 Op. O.L.C. 126 (2010)
Congress may assign authority other than Article III judicial power to
adjuncts of Article III courts, as it has done with respect to magistrate
judges and bankruptcy judges. See, e.g., Raddatz, 447 U.S. 667. In addi-
tion, the Supreme Court has approved Congress’s creation within the
Judicial Branch of certain entities charged with exercising rulemaking and
administrative functions, including the U.S. Sentencing Commission, the
Judicial Councils, the Judicial Conference of the United States, the Ad-
ministrative Office of the United States Courts, and the Rules Advisory
Committees. See Mistretta, 488 U.S. at 386–89.
We are not aware of any precedent, however, for Congress’s creation
within the Judicial Branch of a tribunal, like the Panel, composed of non-
Article III judges and possessing the independent jurisdiction—outside of
the control or supervision of any Article III court—to make binding, final
decisions regarding the Executive’s exercise of statutory authority. Such
a Panel could not be characterized as an adjunct of an Article III court in
the way that bankruptcy judges and magistrate judges function as adjuncts
of the district courts. The Panel instead would have “exclusive and origi-
nal” jurisdiction to determine whether the Secretary’s petitions satisfy the
relevant statutory criteria, Print § 202(a)(3), and neither a district court
nor a court of appeals could withdraw the Panel’s jurisdiction. Moreover,
the Third Circuit and the Supreme Court could exercise only limited
appellate review of the Panel’s decisions. See id. § 202(b)(2)(A), (B).
Thus, the Panel’s functions would not appear to “be limited in such a way
that ‘the essential attributes’ of judicial power are retained in [some
overseeing] Art. III court.” N. Pipeline Constr. Co., 458 U.S. at 81 (quot-
ing Crowell v. Benson, 285 U.S. 22, 51 (1932)).
To be sure, as we have explained, although the Panel’s location within
an adjunct to an Article III court and its composition of non-Article III
judges in active service on that adjunct raise some constitutional concerns,
we do not believe that the Constitution bars Congress from statutorily
vesting the underlying adjudicative function in an Executive Branch
tribunal of some kind. See supra pp. 130–131. But for a Judicial Branch
tribunal to be comprised as this one is would raise special constitutional
concerns and, in our view, pose a serious “threat[]” to “the institutional
integrity of [that branch].” Mistretta, 488 U.S. at 383 (internal quotation
marks omitted). Specifically, although Article III’s structural protections
do not bar federal courts from using non-Article III judicial officers “to
138
Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
support judicial functions, as long as a[n Article III] judicial officer
retains and exercises ultimate responsibility,” United States v. Johnson,
48 F.3d 806, 809 (4th Cir. 1995), Article III may prevent the “elevat[ion]”
of non-Article III judicial officers from “adjunct [status] to the functional
equivalent of an Article III judge,” Thomas v. Arn, 474 U.S. 140, 154
(1985). This risk would be heightened by the service of bankruptcy judges
on the Panel because such service would involve those non-Article III
judges exercising authority both as adjuncts to an Article III court and
under a source of jurisdiction independent of any Article III court. See
supra pp. 131–132.
The purposes underlying Article III’s guarantees of undiminished com-
pensation and lifetime tenure to federal judges would afford the structural
reasons for a possible separation of powers-based objection to the Panel
were it located within the Judicial Branch. Those guarantees “protect the
role of the independent judiciary within the constitutional scheme of
tripartite government and assure impartial adjudication in federal courts.”
Union Carbide, 473 U.S. 582–83. By creating the Panel within the Judi-
cial Branch and designating non-Article III officers who also function as
judicial adjuncts to serve on it, Congress would be enabling the Panel to
draw on the “reputation for impartiality and nonpartisanship” so critical
to the legitimacy of Article III courts and the non-Article III officers who
support them as adjuncts. Mistretta, 488 U.S. at 407. But the Panel mem-
bers would lack the very Article III protections designed to insulate Ar-
ticle III judges from political pressures on their decisionmaking. And
the Panel, by virtue of its independent statutory jurisdiction, would be
free of the “‘total control and jurisdiction’” of an Article III court that the
Supreme Court has suggested is necessary to ensure that the actions of
judicial adjuncts (such as magistrate judges and bankruptcy judges) are
consistent with the separation of powers. Peretz v. United States, 501 U.S.
923, 937 (1991) (quoting Raddatz, 447 U.S. at 681). The resulting blur-
ring of the lines between judicial functions and other governmental func-
tions—i.e., between the actions of tribunals subject to Article III’s protec-
tions, either directly or by virtue of adjunct status, and the actions of a
tribunal such as the Panel that is not so protected—might be thought to
pose a particular threat to the integrity of the Judicial Branch. Cf. Pace-
maker Diagnostic Clinic of Am., Inc. v. Instromedix, Inc., 725 F.2d 537,
544 (9th Cir. 1984) (en banc) (Kennedy, J.) (identifying possibility that
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34 Op. O.L.C. 126 (2010)
Congress’s provision for reference of court cases to a magistrate may
threaten “the integrity of the judiciary” by “invad[ing] the power of a
coordinate branch or permitting an improper abdication of that branch’s
central authority”).
On this view, the Panel would be different in kind from both judicial
adjuncts and those entities exercising rulemaking and administrative
powers of a non-Article III nature that the Supreme Court has to this point
allowed to be placed in the Judicial Branch. Because the Panel would
exercise independent adjudicative authority of a type not given to those
adjuncts and other Judicial Branch entities, it would raise separation of
powers concerns they do not. Indeed, in concluding that the placement of
the Sentencing Commission within the Judicial Branch was consistent
with the separation of powers, the Mistretta Court expressly noted that the
Commission lacked the power to “bind or regulate the primary conduct of
the public,” 488 U.S. at 396—a power that the Panel would possess by
virtue of its control over the Secretary’s petition authority. See 20 Op.
O.L.C. at 168 n.116 (noting that “questions would arise under current
constitutional doctrine as to the legitimacy . . . of an Article III non-
judicial entity ‘bind[ing] or regulat[ing] the primary conduct of the pub-
lic’” (quoting Mistretta, 488 U.S. at 396)). Thus, by creating an entity
within the Judiciary that looks and functions like a court or a judicial
adjunct, but that is composed of members who are not subject to either
Article III’s guarantees of independence or the supervision of an Article
III court, the Print would appear to risk eroding the Judiciary’s reputation
for neutrality. Ultimately, Congress’s exercise of the authority to create
such tribunals could threaten the Judicial Branch with the “‘emascula-
ti[on]’” against which the Supreme Court has warned. Peretz, 501 U.S. at
937 (quoting Schor, 478 U.S. at 850). 5
5 The majority opinion in Freytag, although touching on related themes, does not es-
tablish the constitutionality of placing an entity such as the Panel within the Judicial
Branch. In Freytag, the Court held that the special trial judges who assist Tax Court
judges are inferior officers and can be appointed by the Chief Judge of the Tax Court.
Like the Panel, the Tax Court is a non-Article III tribunal charged by Congress with
making decisions regarding “matters that involve the application of legal standards to
facts and [that] affect private interests.” Union Carbide, 473 U.S. at 583. In determining
that the Tax Court is a “Court[] of Law” within the meaning of the Appointments Clause,
the Court did describe the Tax Court as “exercis[ing] judicial, rather than executive,
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
These concerns could be addressed by making the Panel, still composed
of bankruptcy judges, a true adjunct of an Article III court, with the rela-
tionship between the two tribunals structured in a manner similar to the
relationship between the district courts and the bankruptcy courts under
current law. This modification would require at a minimum vesting juris-
diction to review receivership petitions in an Article III court, with that
court authorized to refer such petitions to the Panel and to withdraw
referrals under appropriate circumstances. Such an adjunct structure
would ensure that the Panel members are subject to sufficient supervision
to constitute inferior officers, and thus properly appointed by a “Court[]
of Law.” And such a structure would also guard against the possible threat
to the integrity of the Article III judiciary that would arise from vesting
binding adjudicative authority in a bankruptcy court tribunal that lacks the
essential attributes of an Article III court and does not function as an
adjunct to such a court. The constitutional concerns we have identified
could also be addressed by providing for the service on the Panel of
Article III judges rather than bankruptcy judges. The Panel members
would then be appointed by the President with the advice and consent of
the Senate, thereby satisfying the Appointments Clause, see Shoemaker v.
United States, 147 U.S. 282, 301 (1893) (officer can be assigned addition-
al duties “germane” to those the officer already performs without the need
for a separate appointment), and would retain the essential attributes of
Article III judges, thereby resolving the separation of powers concerns
identified above. 6
legislative, or administrative, power” and as “independent of the Executive and Legisla-
tive Branches.” Freytag, 501 U.S. at 890–91. The Freytag Court was not presented with
the question of which branch the Tax Court is located in for constitutional purposes,
however, and we do not read the majority opinion to resolve definitively that the Tax
Court is located in the Judicial Branch—let alone that its placement in the Judicial Branch
would be consistent with the separation of powers. We are particularly reluctant to read
the majority opinion as resolving this question in light of the persuasive four-justice
concurrence, which argued that all legislative tribunals “exercise the executive power, not
the judicial power of the United States” and that only adjudicative decisionmakers who
“possess life tenure and a permanent salary” may exercise the latter power. Id. at 909, 911
(Scalia, J., concurring, joined by O’Connor, Kennedy, and Souter, JJ.).
6 We do not address whether the brevity of the period the Print would allow for the
Panel to reach a final decision—twenty-four hours, Print § 202(b)(1)(A)(iii)—would raise
any constitutional concerns under the Due Process Clause or the separation of powers.
141
34 Op. O.L.C. 126 (2010)
III.
So long as the Panel is located within the Judicial Branch, however,
whether as an Article III court or as an adjunct to an Article III court,
there is considerable doubt whether the Panel could adjudicate petitions
filed by the Secretary concerning companies that have affirmatively
consented to the appointment of the FDIC as their receiver. Such petitions
likely would not give rise to a “Case[]” or “Controvers[y]” within the
meaning of Article III of the Constitution, U.S. Const. art. III, § 2, cl. 1.
Moreover, even in cases in which the company that is the subject of the
petition does not affirmatively consent to receivership but simply acqui-
esces by choosing not to appear before the Panel, there is some question
whether the “case or controversy” requirement would be met.
Service of Article III judges on the Panel would appear to render the
Panel an “inferior Court[]” under Article III. Id. art. III, § 1; see also id.
art. I, § 8, cl. 9 (authorizing Congress “[t]o constitute Tribunals inferior to
the supreme Court”); Harmon Memo at 1–2 (tribunal composed of Article
III judges designated by a judicial officer constitutes Article III court).
Because “Article III of the Constitution limits federal-court jurisdiction to
‘Cases’ and ‘Controversies,’” Massachusetts v. EPA, 549 U.S. 497, 516
(2007), the jurisdiction of a Panel composed of Article III judges would
be so limited as well. The “case or controversy” requirement also likely
would apply to the Panel were it structured simply as an adjunct to an
Article III court, because in that case the Act presumably would render
the Panel’s jurisdiction completely derivative of the jurisdiction possessed
by the Article III court. Cf. Kilen, 129 B.R. at 543 (holding that “[i]n
establishing the bankruptcy courts of the United States, Congress assigned
to those courts the resolution of certain disputes that otherwise could be
resolved by the Article III district court,” that “[b]y definition . . . those
disputes must involve cases or controversies or Congress could not have
assigned them initially to the district court to resolve,” and that, therefore,
“by statute . . . bankruptcy courts are limited to resolving disputes involv-
ing actual cases or controversies”).
See Miller v. French, 530 U.S. 327, 349–50 (2000) (reserving the question whether Cong-
ress’s imposition of a very brief period for resolution of a case before an Article III court
could violate due process or the separation of powers).
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
As the Supreme Court has explained, “[a] justiciable controversy is . . .
distinguished from a difference or dispute of a hypothetical or abstract
character; from one that is academic or moot. . . . The controversy must
be definite and concrete, touching the legal relations of parties having
adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,
240 (1937) (internal citations omitted). Thus, “judicial power . . . is the
right to determine actual controversies arising between adverse litigants.”
Muskrat v. United States, 219 U.S. 346, 361 (1911). “It is an essential
prerequisite of a case or controversy to have at least two genuinely ad-
verse parties, for otherwise there is no need for adjudication.” Harmon
Memo at 5.
Many Panel proceedings would present the degree of adverseness nec-
essary to satisfy the “case or controversy” requirement. Companies sub-
ject to a petition would be afforded notice and an opportunity to appear
before the Panel. Print § 202(b)(1)(A)(i), (iii). If a company appears and
challenges the petition, that would create sufficient adverseness. Even if a
company chooses not to appear, the Panel proceeding might still satisfy
the requisites of Article III so long as the company does not affirmatively
indicate its consent to the receivership, although the question is a close
and uncertain one. If a company did affirmatively accept the receivership,
however, that acceptance likely would undermine the adverseness needed
to make jurisdiction proper under Article III.
As this Office has previously stated, although “the usual case or con-
troversy involves the presence of the adverse parties and an opportunity
for them to present arguments to the court, . . . this is not an absolutely
necessary requirement.” Harmon Memo at 5. In Pope v. United States,
323 U.S. 1 (1944), for example, the Supreme Court held that a contrac-
tor’s suit against the government seeking payment for prior work was
justiciable even though Congress had by statute essentially “consented to
judgment in an amount to be ascertained by reference to [certain] speci-
fied data” and the government had not contested the suit. Id. at 11. The
Court stated that “[w]hen a plaintiff brings suit to enforce a legal obliga-
tion it is not any the less a case or controversy upon which a court pos-
sessing the federal judicial power may rightly give judgment, because the
plaintiff’s claim is uncontested or incontestable.” Id. Moreover, federal
courts may “participate in the issuance of search warrants and review
applications for wiretaps, both of which may require a court to consider
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34 Op. O.L.C. 126 (2010)
the nature and scope of criminal investigations on the basis of evidence
or affidavits submitted in an ex parte proceeding.” Morrison, 487 U.S. at
681 n.20 (internal citations omitted); see also Harmon Memo at 3 (mech-
anism for review by Article III judges of ex parte government applica-
tions for electronic surveillance warrants satisfies “case or controversy”
requirement). Federal courts also may adjudicate ex parte petitions for
naturalization under the Immigration and Nationality Act, even though in
most such cases the United States does not appear as an adverse party
and, as a result, there are no conflicting positions for the court to resolve.
See Tutun v. United States, 270 U.S. 568, 577 (1926); Harmon Memo at
6. As we have observed, all of the above proceedings satisfy the Article
III requirement of adverseness because, “while they may formally take
place ex parte, they also implicate a potentially adverse party competent
to challenge the result of the proceedings either in that forum or at a later
date.” Memorandum for Sheryl L. Walter, Office of Legislative Affairs,
from Robert Delahunty, Special Counsel, Office of Legal Counsel, Re:
Draft Bill Entitled the “Identity Theft Victim Assistance Act of 2001” at 3
(Feb. 6, 2001). For example, as the Court noted in Tutun with respect to
naturalization proceedings, “[t]he United States is always a possible ad-
verse party” to a claim for citizenship. 270 U.S. at 577.
Whether a financial company subject to a petition that chooses not to
appear before the Panel might be said to be “a possible adverse party” in
this sense is not clear. The Print deprives the Third Circuit of jurisdiction
over company appeals if the company “acquiesce[d] or consent[ed] to the
appointment of a receiver by the Secretary.” Print § 202(b)(2)(A)(ii).
And it appears that such a company would be statutorily foreclosed from
attacking a receivership order in any collateral proceeding. See Print
§ 202(a)(3) (granting Panel “original and exclusive jurisdiction of pro-
ceedings to consider petitions by the Secretary”). 7 One could argue that
7 In a case involving an ex parte proceeding under 12 U.S.C. § 192, which requires the
Comptroller of the Currency and the FDIC to obtain judicial approval before selling the
assets of a failed bank, the U.S. Court of Appeals for the Seventh Circuit indicated (but
did not decide) that the possible availability of a subsequent opportunity to challenge the
outcome of the proceeding could be relevant to whether that proceeding constitutes a
justiciable case or controversy. See FDIC v. Bank One, Waukesha, 881 F.2d 390, 394
(1989). We do not discern any obvious way, however, in which the outcome of a Panel
proceeding could be challenged in a later proceeding. See Print § 202(a)(3).
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Constitutional Concerns Presented by Proposed Orderly Liquidation Authority Panel
even more so than a naturalization proceeding, a Panel proceeding—on
which would turn the government’s assumption of control of significant
amounts of private property—would present sufficient inherent adverse-
ness between the legal interests of the government and a private party to
satisfy Article III, even if the private party does not appear to protect its
interests. But we are not confident that we understand sufficiently the
economic circumstances that would give rise to a petition, or the manner
in which the compressed time frame for Panel consideration of a petition
would unfold in practice, to deem such an argument persuasive.
Whatever the answer in the case of a company that simply failed to
appear before the Panel, a proceeding concerning a financial company
that had affirmatively consented to its placement in FDIC receivership
would seem to lack the adverseness necessary to support the jurisdiction
of an Article III tribunal. Such a company would not have interests that
are “present[ly] or possibl[y] adverse” to those of the government. Musk-
rat, 219 U.S. at 357. Accordingly, a Panel proceeding concerning such a
consenting company likely would not present “the honest and actual
antagonistic assertion of rights” necessary to “safeguard . . . the integrity
of the judicial process.” United States v. Johnson, 319 U.S. 302, 305
(1943) (internal quotation marks omitted). Indeed, Panel consideration of
a petition concerning such a company would seem to raise the same sorts
of concerns as an advisory opinion, requiring “legal judgment upon
issues which remain unfocused because they are not pressed before the
Court with that clear concreteness provided when a question emerges
precisely framed and necessary for decision from a clash of adversary
argument.” United States v. Fruehauf, 365 U.S. 146, 157 (1961). There-
fore, we are concerned that a Panel proceeding concerning a consenting
company would not qualify as a justiciable “case or controversy.” See,
e.g., Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47, 47–48
(1971) (case dismissed based on lack of case or controversy where both
sides argued that an anti-busing law was constitutional, thus “con-
front[ing]” the Court “with the anomaly that both litigants desire precise-
ly the same result”); Brown v. Watkins Motor Lines, Inc., 596 F.2d 129(5th Cir. 1979) (court lacked jurisdiction to reduce attorney’s fee to
which plaintiff’s attorney and victorious plaintiff had agreed where no
party was challenging the fee). And although the Court held in Pope that
a contractor’s statutorily authorized suit was justiciable even though the
145
34 Op. O.L.C. 126 (2010)
government had essentially “consented to judgment,” that decision is
readily distinguishable. 323 U.S. at 11. Unlike the contractor’s suit, “in
which the existence, validity and extent of the [government’s] obligation,
the existence of the data, and the correctness of the computation [could]
be put at issue,” id., a Panel proceeding involving a company that has
consented to receivership would present no issues still open for dispute
between the parties. 8
DAVID J. BARRON
Acting Assistant Attorney General
Office of Legal Counsel
8 Citing the Supreme Court’s decision in Ullmann v. United States, 350 U.S. 422(1956), the Harmon Memo observed that “the Court has held the process of issuing an
order conferring immunity to be a judicial function,” even though “there might be no
adverse interests before the court [in such a proceeding]” because “all parties involved
may actually want immunity conferred.” Harmon Memo at 6; see also Morrison, 487 U.S.
at 681 n.20 (noting role of federal courts in “compelling the testimony of witnesses”).
Although Ullmann did hold that Article III permits a court to compel a witness’s testimo-
ny, the witness in the case affirmatively contested the government’s application for a
court order and indeed was convicted of contempt when he continued to refuse to testify
after the order was issued. See Ullmann, 350 U.S. at 425, 434.
146