Reconciling Objections to Adjudications Before Agencies and Other Non-Article III Judicial Officials with the Finality Principle

Abstract

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 agency structure even when administrative proceedings are pending. In the 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 structure with appellate review over analogous challenges to federal court orders requiring arbitration or appointing masters and magistrates. In light of the final judgment rule, no appeal as of right is allowed to challenges of references to nonArticle III adjudicators, despite the costs and time involved, and despite the fact that the nonArticle III adjudicators, like administrative agencies, lack the power to grant the relief sought. 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 for holding off judicial review until the administrative agency concludes its adjudication.