Morrison v. Olson

22 Analyses of this case by attorneys

  1. Supreme Court Invalidates Restriction on President’s Power to Remove the CFPB Director

    WilmerHaleReginald BrownJuly 6, 2020

    First, Humphrey’s Executorv. United States, 295 U.S. 602 (1935), concerned members of a multimember body “who were balanced along partisan lines and served staggered terms” and performed only “quasi-legislative” and “quasi-judicial” functions. Second, Morrison v. Olson, 487 U.S. 654 (1988), protected an inferior officer who had no policymaking authority.The Chief Justice framed the question before the Court as whether “to extend” these separation-of-powers precedents to “a new configuration” involving an independent agency headed by a single director insulated from removal by the President.

  2. Courts Should Finally Rule That the False Claims Act Qui Tam Provisions Are Unconstitutional

    Akin Gump Strauss Hauer & Feld LLPMarch 15, 2024

    41 (6th Cir. 1994); U.S. ex rel. Kelly v. Boeing Co., 9 F.3d 743, 753-759 (9th Cir. 1993); U.S. ex rel. Kreindler & Kreindler v. United Techs. Corp., 985 F.2d 1148, 1155 (2d Cir. 1993).3Universal Health Servs. v. U.S. ex rel. Escobar, 579 U.S. 176, 182 (2016); Cook Cnty. v. U.S. ex rel. Chandler, 538 U.S. 119, 130 (2003); Vt. Agency of Natural Res. v. U.S. ex rel. Stevens, 529 U. S. 765, 784 (2000).4See 31 U.S.C. § 3730(b)(4).5Id. § 3730(c)(2)(C). Note, however, that DOJ cannot remove the relator from the action entirely.6Id. § 3730(c)(3) (“If the Government elects not to proceed with the action, the person who initiates the action shall have the right to conduct the action.”).7Id.8Id. §§ 3730(c)(2)(A)-(B).9Act of March 2, 1863, Ch. 67, 12 Stat. 696.10CONG. GLOBE, 37th Cong., 3d Sess. 956 (1863).11520 U.S. 939, 949 (1997).12S. REP. NO. 345, 99th Cong., 2d Sess. 4–8 (July 28, 1986), reprinted in 1986 U.S.C.C.A.N. 5266, 5269, 5273.13Id.14U.S. Const. art. II, §§ 1, 3.15Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting).16U.S. Const. art. II, § 2, cl. 2.17The Supreme Court later held in Cochise Consultancy, Inc. v. United States ex rel. Hunt, 139 S. Ct. 1507, 1514 (2019) that “a private relator is not an ‘official of the United States.’”18Buckley v. Valeo, 424 U.S. 1, 140 (1976).19Memorandum from Michael Granston, Dir., Commercial Lit. Branch, Fraud Div., Factors for Evaluating Dismissal Pursuant to 31 U.S.C. 3730(c)(2)(A) (Jan. 10, 2018); see also Memorandum Op. for the Att’y Gen. from William P. Barr, Assistant Att’y Gen., Off. of Legal Couns., Constitutionality of the Qui Tam Provisions of the False Claims Act 207-08, 217-18 (Jul. 18, 1989) (observing that a “relator is empowered to prosecute the government’s claim even when the Attorney General has determined there is no valid claim or that pursuing the suit is not in the interests of the United States” and citing to United States ex rel. Hyatt v. Northrop Corp., No. CV 87-6892 KN (Jrx), 1989 U.S. Dist. LEXIS 18940 (C.D.

  3. Challenge to False Claims Act Qui Tam Provisions Fails in an Initial Attempt to Revive Long-Dormant Arguments as to Constitutionality Under Article II

    Mintz - Health Care ViewpointsDecember 9, 2023

    United States Constitution.Exactech first contended that the FCA violates the Appointments Clause, which vests executive power exclusively in the President and the Executive Branch. The District Court rejected this argument, reasoning that qui tam relators are not officers under the Appointments Clause because their authorization to litigate under the FCA is not permanent. Rather, relators’ positions are “temporary and exist only for the duration of a particular lawsuit; by no means can that constitute a permanent position.” Additionally, the District Court noted that the FCA restricts relators’ powers during the course of the litigation, reserving the government’s rights to intervene, monitor and limit discovery, and settle the action without the relators’ consent.Exactech additionally argued that the FCA violates the Take Care Clause, which directs the President to “take Care that the Laws be faithfully executed.” Exactech relied on the Supreme Court’s decision in Morrison v. Olson, 487 U.S. 654 (1988), which affirmed the constitutionality of the Ethics and Government Act. That statute authorized the appointment of an independent counsel, who could federally prosecute high-ranking government officials, subject to certain limitations, absent from the FCA, which Exactech asserted needed to be present for the FCA to be constitutional. The District Court distinguished the FCA from the Ethics and Government Act, noting that relators, unlike special prosecutors, are civil litigants with limited power. The District Court reasoned that relators “do not possess the criminal investigatory or prosecutorial powers of the independent counsel in Morrison.” The Court concluded that the FCA allows the executive branch to maintain sufficient control of relators to satisfy Article II, and that any failure to exercise that power does not invalidate the statute under the Take Care Clause.The District Court also pointed to the long-standing history of qui tam lawsuits in the United States to support the

  4. Fifth Circuit Bombshell on SEC ALJs Raises Questions about DEA ALJs

    Cadwalader, Wickersham & Taft LLPKeith GerverJune 1, 2022

    See 21 U.S.C. §824(c)(4) (“Proceedings to deny, revoke, or suspend shall be conducted pursuant to this section in accordance with subchapter II of chapter 5 of title 5. Such proceedings shall be independent of, and not in lieu of, criminal prosecutions or other proceedings under this subchapter or any other law of the United States.”).See 5 U.S.C. §7521(a) (permitting employment actions against ALJ’s “by the agency in which the administrative law judge is employed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.”).See Morrison v. Olson, 487 U.S. 654, 663 (1988) (upholding the constitutionality of independent counsel who were appointed by a special court, wielded the full powers of a prosecutor, and were removable by the Attorney General only for good cause); Humphrey’s Ex’r v. United States, 295 U.S. 602, 629 (1935) (noting that that the Constitution does not give the President ‘illimitable power of removal’ over the officers of independent agencies). 561 U.S. 477, 492 (2010).

  5. Reading Arthrex’s Tea Leaves – Three Exchanges at the Oral Argument That May Hint at the Fate of Patent Judges

    Foley & Lardner LLPDaniel SheltonMarch 29, 2021

    What’s Next for Arthrex?Now that the Court has heard oral argument in the case, a decision should come in the next couple of months.1Arthrex Oral Trans. at 37.2Id. at 42.3Morrison v. Olson, 487 U.S. 654 (1988).4Arthrex Oral Trans. at 37.5Id. at 36.6Id. at 29.7Id.8Id. at 40-41.

  6. Arthrex: Supreme Court Asks “Who’s The Boss?”

    Jones DayGregory CastaniasMarch 5, 2021

    Justices Thomas, Alito, Kagan, Gorsuch, and Kavanaugh also had specific questions about whether the Director actually possessed substantial control over PTAB judges.In these questions, the Justices repeatedly raised issues related to two prior Appointments Clause cases. One was the independent-counsel case, Morrison v. Olson, where the Court—over an influential but lone dissent from Justice Scalia, upheld the role of an independent counsel who experienced very little oversight and had significant authority to prosecute but, the Court held, was a properly appointed inferior officer. 487 U.S. 654 (1988). Justice Scalia thought that the independent counsel statute was such an obvious violation of the Appointments Clause’s assignment of appointment powers to the President that unlike most legislative-branch incursions into executive power, which are “clad, so to speak, in sheep’s clothing,” the violation of separation-of-powers principles there was so open and obvious: “But this wolf comes as a wolf.”

  7. U.S. v. Arthrex: Supreme Court Oral Argument

    McDonnell Boehnen Hulbert & Berghoff LLPKevin NoonanMarch 4, 2021

    Justice Alito asked a "what if" question: if Congress passed a law granting a deputy solicitor general to have "final and unreviewable authority" to decide if the government will appeal with regard to a particular statute, and the SG or Attorney General can decide which DSG will make the decision, would this be constitutional? Mr. Stewart said it is "a close call," citing Morrison v. Olson, 487 U.S. 654 (1988), for the consequence of the DSG having authority limited to a narrow category of cases, and that the SG could specify the "substantive standards" that would cabin the DSG's decisions, which would make APJs inferior officers. But he distinguished this case on the basis that here an APJ's decisions are reviewable.

  8. Supreme Court Saves CFPB, But Subjects Its Director to Removal at the Will of the President | Insights

    Holland & Knight LLPKwamina Thomas WillifordJuly 10, 2020

    The first exception was recognized by the Supreme Court in Humphrey's Executor v. United States, 295 U. S. 602 (1935), a case in which the court considered limitations on the President's power to remove Federal Trade Commission (FTC) commissioners and held that "Congress could create expert agencies led by a group of principal officers removable by the President only for good cause." The second exception was recognized in Morrison v. Olson, 487 U. S. 654 (1988), a case in which the court considered limitations on the President's power to remove an independent counsel and held that "Congress could provide tenure protections to certain inferior officers with narrowly defined duties."The court found that the exception recognized in Humphrey's Executor, a case in which the court limited its holding to "officers of the kind here under consideration," 295 U.S. at 632, did not apply to the CFPB for three primary reasons.

  9. Seila Law LLC v. Consumer Financial Protection Bureau: Has the Supreme Court Tamed or Empowered the CFPB?

    Cadwalader, Wickersham & Taft LLPJuly 6, 2020

    Seila Law, Slip Op. at 15. Second, in United States v. Perkins, 116 U.S. 483 (1886), and Morrison v. Olson, 487 U.S. 654 (1988), the Court permitted removal protections for certain inferior officers with narrow duties, such as an independent counsel appointed to investigate and prosecute specific crimes.Seila Law, Slip Op. at 23.Id. at 18.Id. at 31.Id. at 32–36 (emphasis in original).Id. at 3.Id. at 30.Id. at 31.

  10. Supreme Court Invalidates Restriction on President’s Power to Remove the CFPB Director

    WilmerHaleJuly 2, 2020

    First, Humphrey’s Executorv. United States, 295 U.S. 602 (1935), concerned members of a multimember body “who were balanced along partisan lines and served staggered terms” and performed only “quasi-legislative” and “quasi-judicial” functions. Second, Morrison v. Olson, 487 U.S. 654 (1988), protected an inferior officer who had no policymaking authority. The Chief Justice framed the question before the Court as whether “to extend” these separation-of-powers precedents to “a new configuration” involving an independent agency headed by a single director insulated from removal by the President.