FEF v. PCAOB: The Board Wins

In a very brief and to the point opinion, Judge Robertson of the D.C. Circuit granted summary judgment in favor of the defendants, the PCAOB and US Government. While denying most of the Board’s motion to dismiss, the court ruled that the plaintiffs lacked standing to bring an Appointments Clause claim because they did not show that their injuries were in any way traceable to the fact that the members of the Board were appointed by the SEC as opposed to the President.

The analysis of the plaintiffs’ separation of powers claim can be best summed up by the first sentence of that section; “The Supreme Court has never held that the Constitution requires the President to maintain direct removal power over inferior officers.”

The non-delegation doctrine issue was similarly dispensed with. The court found that the principles by which the PCAOB is directed to conduct its regulation and rulemaking is “squarely within the bounds of modern non-delegation doctrine,” which only requires that the agency be provided with “intelligible principles” by which to regulate.

The opinion ended with a scathing criticism of the plaintiffs’ case, in which Judge Robertson blasted the plaintiffs for “presenting nothing but an hypothetical scenario of an over-zealous or rogue PCAOB investigator.”

The opinion can be found here in its entirety.