Posted by Jonathan Adler:
When One Federal Agency Sues Another:
http://volokh.com/archives/archive_2009_06_07-2009_06_13.shtml#1244832724
The U.S. Court of Appeals for the D.C. Circuit issued an interesting
opinion today in [1]Securities Exchange Commission v. Fair Labor
Standards Authority, a case in which one agency sued another. In
ruling for the government against the government, the opinion for the
court by Judge Brown begins:
This is the sort of dispute that could only arise between public
employees and a governmental agency. The Securities and Exchange
Commission (SEC or Agency) was eager to pay its employees more
money. The National Treasury Employees Union (NTEU or Union)
complains the SEC implemented the raises too quickly. The Federal
Labor Relations Authority (FLRA or Authority) agrees with the Union
and has ordered the SEC to provide back pay to atone for the
affront. Counterintuitive though it may be, we agree the FLRA has
properly resolved this odd controversy so we deny the petition for
review and grant the Authority�s crossapplication for enforcement.
The case features an interesting concurring opinion by Judge Kavanaugh
on which he wrote separately to "to point out the constitutional
oddity of a case pitting two agencies in the Executive Branch against
one another, and to explain why the Court can hear this dispute." He
explains:
The caption of this case � Securities and Exchange Commission v.
Federal Labor Relations Authority � illustrates an anomaly. Both
the SEC and the FLRA are agencies in the Executive Branch, yet one
is suing the other in an Article III court. This state of affairs
is in tension with the constitutional structure designed by the
Framers and set forth in the text of the Constitution. The
Constitution vests the �executive Power� in one President. And the
Constitution assigns the President the responsibility to �take Care
that the Laws be faithfully executed.� Because Article II provides
that a single President controls the Executive Branch, legal or
policy disputes between two Executive Branch agencies are typically
resolved by the President or his designee � without judicial
intervention. Moreover, because agencies involved in
intra-Executive Branch disputes are not adverse to one another
(rather, they are both subordinate parts of a single organization
headed by one CEO), such disputes do not appear to constitute a
case or controversy for purposes of Article III. In short, judicial
resolution of intra-Executive disputes is questionable under both
Article II and Article III.
This analysis is uncontroversial as applied to disputes between two
traditional Executive Branch agencies. No one plausibly thinks, for
example, that a federal court would resolve a dispute between the
Department of Justice and, say, the Department of Defense or the
Department of State. But the wrinkle is that this case involves a
so-called independent agency. Independent agencies are those
agencies whose heads cannot be removed by the President except for
cause and that therefore typically operate with some (undefined)
degree of substantive autonomy from the President in a kind of
extra-constitutional Fourth Branch. In Humphrey�s Executor v.
United States, the Supreme Court approved of independent agencies,
at least in certain circumstances. Consistent with the
post-Humphrey�s Executor understanding that Presidents cannot (or
at least do not) fully control independent agencies, and that an
independent agency therefore can be sufficiently adverse to a
traditional executive agency to create a justiciable case, the
Supreme Court and this Court have entertained suits between an
independent agency and a traditional executive agency, or as here
between two independent agencies.
Our ability to decide this case thus follows from Humphrey�s
Executor and accords with courts� previous handling of disputes
between an independent agency and a traditional executive agency
(or another independent agency). Because this case is justiciable
under the governing precedents and because the Court�s analysis of
the merits is persuasive, I join the opinion of the Court.
[citations omitted]
References
1. http://pacer.cadc.uscourts.gov/common/opinions/200906/08-1256-1185216.pdf
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