Volume 98

By Harold J. Krent

In the upcoming term, the Supreme Court will hear argument in Cochran v. SEC, in which the en banc Fifth Circuit departed from its sister circuits 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 finality and implied preclusion 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. 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 militate holding off judicial review until the administrative agency concludes its proceeding.

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