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98 Ind. L.J. Supp. 1 (2023)

handle is hein.journals/spplmntinlj98 and id is 1 raw text is: SITUATING STRUCTURAL CHALLENGES TO AGENCY AUTHORITY WITHIN THE FRAMEWORK OF THE FINALITY PRINCIPLE HAROLD J. KRENT* INTRODUCTION In the upcoming term, the Supreme Court will hear argument in Cochran v. SEC,1 in which the en banc Fifth Circuit departed from its sister circuits2 to hold that federal courts may entertain constitutional challenges to administrative agency structure even when administrative proceedings are pending. On the one hand, the cognate doctrines of finality3 and implied preclusion4 would lead courts to stay their hands and await the outcome of the administrative proceeding to determine whether their intervention is needed. On the other, forcing the litigant to raise the structural claim before an administrative entity that has no power to declare itself unconstitutional seems futile and a waste of the litigant's resources. In this Essay, I argue that Cochran was wrongly decided, critiquing that court's reasoning as well as academic support for its stance.5 To stake out that position, I compare judicial review of challenges to agency legitimacy to that of appellate review over analogous challenges in federal district court to the authority of non- Article III judicial officials. Even when litigants challenge the propriety of federal district court orders requiring arbitration or appointment of masters and magistrates, no appeal as of right is allowed. Congress, rather, has directed that all claims be raised together on appeal after a final judgment has been entered. I conclude that the concerns for finality and efficiency that underlie the final judgment rule strongly * Professor of Law, Chicago-Kent College of Law. I would like to thank Bryan Lammon for comments on an earlier draft and Hannah Auten for her research assistance. 1. 20 F.4th 194 (5th Cir. 2021) (en banc). The case is consolidated with Axon Enter, Inc. v. F.T.C, 986 F.3d 1173 (9th Cir. 2021). 2. See, e.g., Bebo v. SEC, 799 F.3d 765, 768 (7th Cir. 2015); Bennett v. SEC, 844 F.3d 174, 177 (4th Cir. 2016); Hill v. SEC, 825 F.3d 1236, 1239-40 (11th Cir. 2016); Jarkesy v. SEC, 803 F.3d 9, 14 (D.C. Cir. 2015); Tilton v. SEC, 824 F.3d 276, 278-79 (2d Cir. 2016); Gibson v. SEC, 795 Fed. App'x. 753 (1ith Cir. 2019). 3. 5 U.S.C. § 704. See, e.g., F.T.C v. Standard Oil Co., 449 U.S. 232 (1980). Although the Administrative Procedure Act does not require exhaustion of remedies, see Darby v. Cisneros, 509 U.S. 137 (1993), the doctrine is similar. See, e.g., McCarthy v. Madigan, 503 U.S. 140 (1992). 4. See, e.g., Block v. Cmty. Nutrition Inst., 467 U.S. 340 (1984). 5. For an argument defending Cochran, see Linda D. Jellum, The SEC's Fight to Stop District Courts from Declaring Its Hearings Unconstitutional, (forthcoming Texas L. Rev. 2022), https://ssrn.com/abstract=4041454. The article focuses on application of the Thunder Basin factors, see infra, text accompanying note 35, which viewed in isolation, plausibly supports the court. The wider context and deeply embedded norm of delaying review of nonfinal orders is not considered. See also Adam M. Katz, Note, Eventual Judicial Review, 118 COLUM. L. REv. 1139 (2018) (arguing in favor of judicial review of comparable challenges to agency structure).

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