United States DC Circuit

In a facial challenge to the constitutionality of Title I of the Sarbanes-Oxley Act, asserting that it violates the Appointments Clause and separation of powers because it does not permit adequate presidential control of the Public Company Accounting Oversight Board, summary judgment for defendants is affirmed where: 1) Sarbanes-Oxley does not encroach upon the appointment power because, in view of the Securities and Exchange Commission's (SEC) comprehensive control of the Board, Board members are subject to direction and supervision of the SEC and thus are inferior officers not required to be appointed by the President; and 2) the for-cause limitations on the SEC's power to remove Board members and the President's power to remove Commissioners do not strip the President of sufficient power to influence the Board, and thus do not contravene separation of powers.

Appellate Information

• Argued 04/15/2008
• Decided 08/22/2008
• Published 08/22/2008

Judges

• Before:  ROGERS, BROWN and KAVANAUGH, Circuit Judges.

Court

• United States DC Circuit

Counsel

• For Appellant:
  
• Michael A. Carvin argued the cause for appellants.   With him on the briefs were Viet D. Dinh, Sam Kazman, Hans F. Bader, Christian G. Vergonis, and Kenneth W. Starr., Elizabeth Gallaway and William P. Pendley were on the brief for amicus curiae Mountain States Legal Foundation., Daniel J. Popeo, Paul D. Kamenar, Helgi C. Walker, and Thomas R. McCarthy were on the brief for amicus curiae Washington Legal Foundation in support of appellants., Richard H. Pildes was on the brief for amici curiae G. Bradford Cook, et al.


• For Appellees:
  
• Jeffrey A. Lamken argued the cause for appellees Public Company Accounting Oversight Board, et al.   With him on the brief were Joe Robert Caldwell Jr. and James R. Doty., Mark B. Stern, Attorney, U.S. Department of Justice, argued the cause for appellee United States of America.   With him on the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, Mark R. Freeman, Attorney, Brian G. Cartwright, General Counsel, Securities & Exchange Commission, Andrew N. Vollmer, Deputy General Counsel, Jacob H. Stillman, Solicitor, and John W. Avery, Special Counsel.  Robert J. Katerberg, Attorney, U.S. Department of Justice, and R. Craig Lawrence, Assistant U.S. Attorney, entered appearances., Ira M. Millstein, Gregory S. Coleman, and Christian J. Ward were on the brief for amicus curiae Council of Institutional Investors in support of appellees.