I know David Schoenbrod, and he is no Owen Fiss. Yet, if the United States Supreme Court were to resurrect the nondelegation doctrine as Professor Schoenbrod proposes, it would radically in-crease judicial power over vast areas of American life at the ex-pense of the “political” branches (as we quaintly call them). Fiss, my beloved but occasionally misguided colleague, would probably applaud this change, but Professor Schoenbrod, usually so sensible about such things, would surely deplore it. Fortunately, the Court is most unlikely to adopt Professor Schoenbrod’s perverse pro-posal. Besides, even if the Court did revive the nondelegation doc-trine, it would surely want to neuter it. Like Buddy, our First Dog, the Court lacks the balls to do what the doctrine would require. So much the better for the Court—and for the rest of us (though not for poor Buddy).
conclu-* Simeon E. Baldwin Professor, Yale Law School; John Marshall Harlan Visiting Pro-fessor, New York Law School (Spring 1999).
1JERRY L. MASHAW, GREED, CHAOS & GOVERNANCE: USING PUBLIC CHOICE TO IMPROVE PUBLIC LAWS (1997).
2DAVID SCHOENBROD, POWER WITHOUT RESPONSIBILITY: HOW CONGRESS ABUSES THE PEOPLE THROUGH DELEGATION (1993).
sively one way or the other”3strikes me as disingenuous, for his analysis plunges a long, sharp knife deep into the doctrine’s heart, leaving it near death’s door.
Nevertheless, I accept almost all of Mashaw’s arguments. Our agreement, I presume, is not due to something in the New Haven water supply. Instead, it reflects administrative law scholars’ fa-miliarity with a wide variety of regulatory schemes and public ad-ministration arrangements. It also reflects our common under-standing that the ubiquity of broad delegations denotes much more than the undoubted desires of politicians to eat their cake and have it too. In my view, delegation—when backed (as it is in our system) by many powerful institutional and informal controls over agency discretion—constitutes one of the most salutary de-velopments in the long struggle to instantiate the often competing values of democratic participation, political accountability, legal regularity, and administrative effectiveness.
I wish to make some arguments against a robust nondelega-tion doctrine (and if it is not robust, there is no point talking about it) that Mashaw does not make.4In the spirit of Dean Michael Herz’s observation that most broad delegations satisfy the formal requirements of Article I legislation and that the merits of a non-delegation doctrine must therefore turn on functional considera-tions,5my arguments in favor of broad delegations in many cir-cumstances are functional in nature. I shall organize my arguments around four questions: What is the nature of the dele-gation problem?; What should be our goals in seeking to control delegation?; In the absence of a nondelegation doctrine, is agency lawmaking effectively constrained?; What would be the conse-quences of reviving the nondelegation doctrine?
3MASHAW, supra note 1, at 12.
4I think, however, that Mashaw would agree with them.
5Michael Herz, Remarks at the Cardozo Law Review symposium “The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives” (Mar. 19, 1998) (transcript on file with the Cardozo Law Review).
6See generally PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS (1983).
7The notions of congressional understanding and legislative intent are merely meta-phors, of course, and somewhat misleading anthropomorphizing metaphors at that; they are images of cognition and purposiveness, necessary fictions for ascribing relatively sim-ple, discrete goals to exceedingly complex institutions.
8David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731, 762 (1999).
9Such a doctrine moreover would also contradict Professor Schoenbrod’s generally sound jurisprudential and political values. He should therefore reject it.
11See, e.g., DAVID R. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION (1975). Reform of the Social Security system and global warming are current examples.
constraints on democratic governance is a vital question to which no one really knows the answer. But, I feel quite certain that non-accountability in Professor Schoenbrod’s sense is, relatively speaking, a non-problem. The greater dilemma, I think, is that growing social complexity has made it far more difficult for legisla-tors (not to mention voters) to accurately predict the consequences of their choices so that they can reason their way to a conclusion as to the best policy choice. If I am right about this, we may need more delegation to agencies, not less.
12See Peter H. Schuck, Against (And For) Madison: An Essay in Praise of Factions, 15 YALE L. & POL’Y REV. 553 (1997).
13Eurosclerosis is a term that was coined in the early 1980s to describe the period of sluggishness in the development of the European Union when all issues, however minor, languished until all Member States could agree. See The Business of Europe, THE ECONOMIST, Dec. 7, 1991, at 63. It now applies more broadly to Europe’s slow growth, high unemployment, and policy rigidity.
14See Mashaw, supra note 1, at 140.
I can imagine Professor Schoenbrod responding in several ways. First, as he writes in his Article, “[l]arge majorities tell poll-sters that government has somehow eluded their control.”16I do not doubt this claim, although much of its significance turns on how the pollsters phrased their question and how respondents un-derstood it. The more important point, however, is that Ameri-cans have probably always said this—and that what they say is in a sense true, at least at the level of the individual. What is less clear is that such polling data tell us anything about the desirability of the nondelegation doctrine.
Second, he might argue that if the nondelegation doctrine constrained lawmakers more, the policy processes and outcomes would be even better. Perhaps he is right about this, but I seri-ously doubt it. At the very least, the post-1965 progress of Ameri-can society increases the already heavy burden of proof that Mashaw’s theoretical analysis imposes on Schoenbrod and the public choice pessimists.
15Olson might object to being characterized as a pessimist. In a letter written to me six months before his death, Olson said “I don’t agree that subsequent experience has gone contrary to any ‘predictions’ in The Rise and Decline of Nations.” Olson also ex-pressed optimism about the role of ideas in improving social outcomes.
16Schoenbrod, supra note 8, at 731.
17Professor of Law at the University of Chicago Law School. See Dan Kahan, Democ-racy Schmemocracy, 20 CARDOZO L. REV. 795 (1999).
19See Schoenbrod, supra note 8, at 735.
choices.”20The closest he comes to defining responsibility is to ob-serve that it is “more meaningfully accountable for what [the ad-ministration] does,”21in contrast to “responsiveness,” which “will give voters what they want.”22I confess that I thought that giving the voters what they want, and what they thought they voted for, is precisely what democracy is supposed to be about and what advo-cates of the nondelegation doctrine hope and suppose it will achieve. If that is not Professor Schoenbrod’s objective, then I do not know what is.
In any event, political responsibility is no more a self-defining term than is democracy.23More to the point, responsibility is only one value among others. Let me suggest some additional constitu-tional and quasi-constitutional goals that any democratic, just, and effective lawmaking system should seek to both reify and advance. Lawmaking should encourage active, meaningful participation by individual citizens and groups affected by the law. It should facili-tate and reflect mature deliberation among members of the public and among the lawmakers themselves. Lawmaking should exhibit instrumental competence, in the sense that it implements a satis-factory level of legislative purposes. Lawmaking, as Mashaw notes, should promote justice in individual cases, not merely at wholesale. It should also achieve responsiveness to public prefer-ences, in Professor Schoenbrod’s sense of giving the voters what they (think they) want. Finally, of course, lawmaking in both its procedural and substantive aspects should exemplify and secure the rule of law.
23Professor Kahan emphasizes this point. See Kahan, supra note 17, at 795.
24See MASHAW, supra note 1, at 50-80.
virtues of responsible lawmaking are best achieved; it is there, he suggests, that the public’s values should be expressed and the hard policy choices made. He fails to see, however, that the particular attributes of the legislature’s delegation—its breadth, type, and level—are themselves fundamental policy choices. Moreover, these issues are hardly peripheral to legislative choice. Along with the closely related issue of the scope of the agency’s regulatory authority, they are almost always—and quite explicitly—at the heart of the political debates in Congress over the shape and con-tent of particular pieces of legislation. The optimal specificity and other delegation-related features of the legislation are among the questions on which almost all of the parties to these legislative struggles—congressional committees, legislative staffs, the White House, regulated firms, “public interest” groups, state and local governments, and others—tend to stake out clear positions, for they know the resolution of these questions may well determine the nature and effectiveness of the regulatory scheme being estab-lished.25The issue of statutory specificity is not resolved sub silen-tio or by default, as Professor Schoenbrod suggests. Rather, it is a focal point of the political maneuvering in the legislature.
Legislation is only part of the process of responsible lawmak-ing, and it is becoming a less important part. In some important respects, this is for the better. Today, the administrative agency is often the site where public participation in lawmaking is most ac-cessible, most meaningful, and most effective.
The administrative agency is often the most accessible site for public participation because the costs of participating in the rule-making and more informal agency processes, where many of the most important policy choices are in fact made, are likely to be lower than the costs of lobbying or otherwise seeking to influence Congress. Moreover, the institutional culture of the administrative agency, despite its often daunting opacity, is probably more famil-iar to the average citizen, who deals with bureaucracies constantly and probably works in one, than the exotic, intricate, unruly (and “un-ruley”), insider’s culture of Congress.
25See, e.g., Terry Moe, The Politics of Bureaucratic Structure, in J. CHUBB ET AL., CAN THE GOVERNMENT GOVERN? (1989).
the substantive content of public policy. After all, it is only at the agency level that the generalities of legislation are broken down and concretized into discrete, specific issues with which affected parties can hope to deal. It is there that the agency commits itself to a particular course of action; because only there does it propose the specific rate it will set, the particular emission level it will pre-scribe, the precise restrictions on private activity it will impose, the exact regulatory definitions it will employ, the kinds of enforce-ment techniques it will use, the types of information it will collect, and the details relating to the administrative state’s myriad other impacts on citizens and groups. In short, it is only at the agency level that the citizen can know precisely what the statute means to her; how, when, and to what extent it will affect her interests; whether she supports, opposes, or wants changes in what the agency is proposing; whether it is worth her while to participate ac-tively in seeking to influence this particular exercise of governmen-tal power, and if so, how best to go about it; and where other citi-zens or groups stand on these questions. God and the devil are in the details of policymaking, as they are in most other important things—and the details are to be found at the agency level. This would remain true, moreover, even if the nondelegation doctrine were revived and statutes were written with somewhat greater specificity, for many of the most significant impacts on members of the public would still be indeterminate until the agency grappled with and defined them.
tation would confound its purpose. Often, however, this knowl-edge can only be gained through active public participation in the policymaking process at the agency level where these implementa-tion issues are most clearly focused and the stakes in their correct resolution are highest.
26Schoenbrod, supra note 8, at 762.
27See, e.g., JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY DISABILITY CLAIMS (1983); Peter H. Schuck, When the Exception Becomes the Rule: Regulatory Equity and the Exceptions Process in Federal Energy Policymaking, 1984 DUKE L.J. 163.
and interest groups—can effectively influence, if not wholly con-trol.28I do not claim that this control is complete, nor should it be if the advantages of technocratic administration are to be realized. Agencies enjoy some leeway and sometimes abuse it. The con-trols, however, are extensive.
Some of these external constraints on bureaucratic policy-making are: (1) Congress; (2) the Executive Office of the Presi-dent; (3) judicial review; (4) interest group monitors; (5) media; and (6) informal agency norms. It is important, moreover, to re-member that these and other constraints on bureaucracy’s free-dom to “do as it pleases” all operate simultaneously. My consid-eration of them can be brief, as a vast political science literature exists on each.
Congress possesses numerous formal and informal controls over agency discretion. I shall mention six of them: statutory con-trols; legislative history; oversight; the appropriations process; statutory review of agency rules; and confirmation of key person-nel.
28The desired level of delegation may vary according to a number of political factors, including the degree to which Congress and the executive branch are controlled by the same political party and the degree of party unity that exists. This is one reason why many New Deal statutes, enacted during a period of unified government, delegated power to the agencies in very broad terms, while many of those enacted during the early 1970s, when government was divided, contained many more controls over agency discretion. See DAVID R. MAYHEW, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS (1990); JAMES SUNDQUIST, THE DECLINE AND RESURGENCE OF CONGRESS (1981); see also Peter Strauss, Comments at the Cardozo Law Review sympo-sium “The Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives” (Mar. 19, 1998) (transcript on file with the Cardozo Law Review).
29Senior Fellow at the Hoover Institution and Professor of Political Science at Stan-ford University.
30McNollgast is an anagram of Matthew McCubbins, Roger Noll, and Barry Weingast. The authors coined this term for their own joint work, and it has been adopted by others.
process in ways that serve its electoral and policy interests and make it difficult for agencies to threaten those interests.
Even when Congress enacts vague statutes, it often clarifies their meaning through legislative history. Agencies understand that the committee reports and floor debates serve as important controls on agency discretion. Justice Scalia frequently reminds us, of course, that legislative history can be indeterminate and is often used strategically by members who cannot muster the votes to get their preferences inscribed in the statutory language itself.31As Judge Harold Levanthal famously put it, using legislative his-tory is like looking out over a crowd in order to find one’s friends.32Despite these abuses, or rather because of them, legislative history can dictate which policies agencies may and may not adopt.
Congressional oversight of administration is one of the central pillars of the constitutional schemes of checks and balances—or in Richard Neustadt’s phrase, “separate institutions sharing pow-ers.”33While the nature, quality, and intensity of legislative over-sight vary from committee to committee, it is often used to signal congressional preferences on agency policy issues and to extract policy commitments from agency officials. Agencies fear intrusive oversight and their decisions and behavior often reflect what po-litical scientists refer to as “anticipatory reaction” to those con-trols.
31See, e.g., Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992); United States v. Nordic Village, Inc., 503 U.S. 30, 37 (1992); see also Fort Stewart Schs. v. Federal Labor Relations Auth., 495 U.S. 641, 649 (1990) (“There is no conceivable persuasive ef-fect in legislative history that may reflect nothing more than the speakers’ incomplete un-derstanding of the world upon which the statute will operate.”).
32See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (quoting Judge Leventhal).
33RICHARD E. NEUSTADT, PRESIDENTIAL POWER AND THE MODERN PRESIDENTS: THE POLITICS OF LEADERSHIP FROM ROOSEVELT TO REAGAN 32 (1990).
appropriations bills, it is nonetheless a common practice for ap-propriations committees to engage in this practice and for agencies to acquiesce and abjectly obey. Indeed, substantive controls on agency policymaking are often included even in the increasingly common omnibus budgetary reconciliation legislation.
In addition to the constitutional power to override presiden-tial vetoes, Congress has over the years enacted a grab-bag of pro-visions requiring some agency rules to run the gauntlet of various forms of legislative veto before they could become effective. The Supreme Court decision in INS v. Chadha34invalidated certain forms of legislative veto but left most others, including report- and-wait provisions, in place. In 1996, Congress extended this form of control to all rules of all federal agencies, as defined in the Ad-ministrative Procedure Act (“APA”),35although the legislation subjects “major rules” to a more intensive review than other rules.
Professor Schoenbrod makes much of the fact that this Con-gressional Review Act,36while comprehensive, has not led to any votes of disapproval by Congress; this inaction shows, he says in a vivid simile, that “legislators react to responsibility as vampires do to garlic—they flee.”37But it shows no such thing. Numerous em-pirical studies of the operation of the various kinds of legislative vetoes, both before and after Chadha, have found that they gener-ate strong anticipatory reactions by agency officials, often includ-ing intensive discussions between those officials and committee members or staff that cause the agency to conform their rules to the wishes of the committee.38Indeed, recognition of this powerful informal process of congressional review of agency policymaking outside the statutory procedures of the APA has long caused many consumer, environmental, and other “public interest” groups to oppose legislative veto provisions, including the Congressional Review Act, on the ground that it enables industry interests to use congressional staff to gain an extra bite at the regulatory apple.
355 U.S.C. §§ 551-559 (1994).
37Schoenbrod, supra note 8, at 739.
38See, e.g., LOUIS FISCHER, THE POLITICS OF SHARED POWER: CONGRESS AND THE EXECUTIVE (1987).
Finally, Congress frequently uses its constitutional power to confirm or reject presidential nominees in order to shape agency policies. Again, much of this influence operates through the me-dium of anticipatory reaction, here on the part of the President who must consider congressional policy and personal preferences when determining whose name to send to Capitol Hill. But con-gressional influence also often operates through the confirmation hearings when members extract from the nominee explicit com-mitments to adopt or avoid certain policies. These policy com-mitments can be quite specific; indeed, they may be even more specific than the statutory commitments that Professor Schoen-brod would require of Congress under a revitalized nondelegation doctrine.
Even before agency policies and rules see the light of day, the significant ones are vetted with the Office of Management and Budget (“OMB”)—and, in a few highly controversial and delicate cases (e.g., FDA regulation of tobacco), with the President and his closest political and policy aides. This may take the form of budg-etary review, if the agency action would entail significant fiscal im-pacts; legislative review, if it requires statutory change; or regula-tory review, if it meets the OMB criteria. Once again, the greatest impact of these processes is not so much the reviews themselves as the anticipatory reactions of the agency officials and the reviewers. They are keenly mindful of the policy concerns of the relevant congressional committees and key members, who often are con-sulted informally as part of these processes and usually receive drafts of the review documents before they are released to the public. Although the review process works somewhat differently with respect to the independent regulatory agencies, their vaunted (but to some extent, illusory) independence is designed to make them even more dependent on Congress and responsive to its pol-icy priorities.
tiveness and value of this review in many cases, none of us doubts that agencies invariably fear it, that they seek to tailor their actions (at least those that are reviewable) in anticipation of it, and that the courts do attempt to police agency departures from congres-sional policy choices, which must often be inferred from general statutory language and other interpretive materials. Although it is true that the Chevron39doctrine in principle increases the defer-ence to agency interpretations of their governing statutes, many commentators have observed that the courts can, and often do, manipulate this doctrine in order to preserve much of their influ-ence over agency decisions, including enforcing agency fidelity to congressional intent.
Toward the end of his book, Professor Schoenbrod quotes then-professor Scalia to the effect that the nondelegation doctrine amounts to a judicial self-denying ordinance. Justice Scalia, of course, was writing before the Supreme Court in Chevron curbed judicial authority to interpret statutes without regard to the agen-cies’ own interpretations. In any event, we certainly do not need a nondelegation doctrine to enable Congress to protect its legislative prerogatives from judicial incursion, which was Justice Scalia’s concern. As my colleague Bill Eskridge has carefully documented, Congress possesses ample power to overrule judicial rulings and exercises that power frequently.40The fact that Congress can do so, however, does not mean that the nondelegation would there-fore not create mischief.41It would indeed, as I discuss in the final section.
para-39 Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
40See William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation De-cisions, 101 YALE L.J. 331 (1991).
41Among other things, the politics of restoring a judicially transformed statutory meaning will differ from the polities that produced the original enactment, and may pre-vent such restoration. See infra.
42See 5 U.S.C. § 805 (1994).
doxical situation: By preserving and extending its oversight and veto power over agency decisions, Congress is more willing to delegate power broadly to the agencies, knowing that it can always retrieve and discipline that power if need be.
Agencies’ freedom to “do as they please” is further con-strained by the close surveillance of their actions by the constella-tion of interest groups that invariably cluster around them. As students of Congress have pointed out, these groups police the agencies by signaling Congress in a variety of ways whenever the groups think that the agencies are deviating from the policy path that they prefer and that they believe Congress has chosen, re-gardless of how general or specific the statutory language may be. These groups, of course, further shape agency policies through their participation in formal and informal agency decisionmaking and through their ability to mobilize opposition to these policies. To be sure, these efforts sometimes seek to push the agency to ex-ercise its discretion in a way not intended or permitted by Con-gress, a circumstance that underlies all concerns about broad dele-gations. The burden of my comments here, however, is to show that their power to accomplish this end is a highly constrained one.
Every agency is surrounded by organs of public communica-tion that focus on its decisions. Some of these media report to a mass audience while others serve highly specialized audiences, in-cluding regulated firms, trade associations, consultants, “public in-terest” groups, Congress, administrative lawyers, and the like. In addition to using conventional journalistic methods of investiga-tion, these media enjoy a legal right of access to agency proceed-ings under sunshine laws, the Federal Advisory Committee Act,44the Freedom of Information Act,45and other such laws. In effect, the media help to police the activities of agencies in ways that en-able both interest groups and Congress to keep the agencies in line.
44Id. app. §§ 1-15 (1994).
prefer to conduct their business in secret and that they sometimes succeed in doing so. It is to say, rather, that intensive media cov-erage of agency actions makes it almost impossible to shield from public notice the important decisions that deviate significantly from congressional intent.
Finally, agencies are subject to internal limits on their ability to “do as they please.” Or to put the point more precisely, they ordinarily are pleased to do what they think Congress has re-quired—and not only because of the legal and political constraints discussed above. In most if not all agencies, there exists an organ-izational culture committed to the rule of law. Indeed, as political scientist James Q. Wilson46has observed, most of the classic com-plaints about public bureaucracies are really criticisms of agencies for being too legalistic (too rigid, unimaginative, process-oriented, etc.) in their strict adherence to the statute, at least as they under-stand it. In addition, management controls are ordinarily designed to reinforce these tendencies. Moreover, agencies are increasingly staffed by individuals who are professionally trained and whose professional norms, which include a commitment to the rule of law, often contradict or transcend the narrow political or bureau-cratic interests that might otherwise lead decisionmakers astray.
vindi-46 James Q. Wilson is a professor of management and public policy emeritus at Uni-versity of California at Los Angeles.
47In this sense, as Martin Redish points out, an invigorated nondelegation doctrine would be tantamount to a return to substantive due process, another essentially standard-less judicial doctrine that reached its zenith at roughly the same time. Redish notes that in other respects, the two doctrines are quite dissimilar, if not opposite. While the nondele-gation doctrine is concerned with the form of legislation, substantive due process focuses on its content. And while the nondelegation doctrine demands clearer legislative policy choices, substantive due process denies to legislatures the power to make certain choices at all. See Martin Redish, Comments at the Phoenix Rises Again: The Nondelegation Doctrine from Constitutional and Policy Perspectives (Mar. 19, 1998) (transcript on file with the Cardozo Law Review).
To inscribe the nondelegation doctrine in the Constitution, ei-ther textually or interpretively, would be little better than having the courts make it up as they go along.51This is evident once one tries to imagine how one would draft such an amendment. The line-drawing problems are simply insuperable, which is why the Supreme Court—whether liberal or conservative, textualist or in-terpretivist—has resisted any robust nondelegation doctrine dur-ing more than two centuries of public law adjudication, and espe-cially during the age of statues spanning the last sixty-five years.
func-48 Schoenbrod, supra note 8, at 752.
51Much the same can be said for the balanced budget amendment, but that is another subject.
Such a second look requirement certainly has its attractions, but its apparent benignity can be misleading. It means that the court in effect is forcing Congress to bear the burden of inertia, which is always a crucial, and often determinative, factor in legisla-tive politics. It is not enough to say that if Congress enacted the statute once, it can readily do so again—now free of the constitu-tional taint of inadequate specificity. The political situation may have changed, and it may be impossible to reassemble the winning coalition. Professor Schoenbrod might reply that this is precisely the point; if Congress could not enact the more specific version of the statute, it should not be permitted to enact the less specific one. This argument, however, entirely begs the question before us—whether the nondelegation doctrine is justifiable on other grounds in the first place. To say that it is more justifiable because it can always be overridden by Congress is not simply wrong em-pirically (the political burden of inertia will have shifted, perhaps decisively, to the supporters of the statute), but is also bootstrap-ping.
By magnifying the already great uncertainty surrounding the legislative process, the doctrine would further increase the strate-gic opportunities of politicians and organized interests that hope to shape, derail, or delay new legislation. The risks that courts would invalidate statutes would be vastly greater yet still utterly unpre-dictable. From the more detached, public interest perspective of one concerned solely with the legitimacy and effectiveness of leg-islative politics, much would certainly be lost. It is hard to see what, if anything, would be gained.
52See Canadian Charter of Rights and Freedoms § 15 (1994). In a similar spirit, Beth Garrett notes that the rules permitting members to make points of order in the congres-sional budgetary process enable opponents of majoritarian legislation to encourage the discussion of under-enforced norms such as federalism. She notes further that these rules also give minorities the power to stop the legislation in its tracks for any reason, whether principled or not. See Elizabeth Garrett, Accountability and Restraint: The Federal Budget Process and the Line Item Veto Act, 20 CARDOZO L. REV. 871 (1999).
or even the possibility of any coherent, principled, or manageable judicial standards. This leads us to three other ironies.53The non-delegation doctrine utterly lacks the intelligible standards that it demands of legislation. It invites and empowers judges to render the legislative process even more chaotic and opportunistic than the doctrine’s advocates think it already is. And it does so at a cost to democratic politics—the very touchstone of those advocates— that can scarcely be imagined.
53Peter Strauss notes yet another. Were a robust nondelegation doctrine in place, Congress would find it even more necessary than it already is to delegate its legislative power to its own subcommittees and staff, particularly when it enacts so much substantive legislation through the mechanism of massive budget reconciliation bills. In this connec-tion, Strauss quotes Gordon Crovitz to the effect that members of Congress can walk around these statutes and touch them; the one thing that they cannot do, however, is read them. See PETER L. STRAUSS ET AL., ADMINISTRATIVE LAW: CASES AND COMMENTS 195 (9th ed. 1995).


text:
American Airlines filed for bankruptcy and implemented a plan to reduce labor costs. Anticipating a reduction in the number of AA mechanics, resulting in reduction in the number of Transportation Workers Union members, the national leadership of that union consolidated local unions and shuttered offices. The district court denied a motion by local unions for a preliminary injunction preventing the consolidation. The Seventh Circuit affirmed. TWU’s actions were within the scope of its authority; TWU reasonably exercised powers granted to it by the TWU Constitution.
In the United States Court of Appeals For the Seventh Circuit No. 13-1722 TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, LOCAL UNIONS 561, 562, 563, 564, 565, Plaintiffs-Appellants, v. TRANSPORT WORKERS UNION OF AMERICA, AFL-CIO, INTERNATIONAL UNION, Defendant-Appellee. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 13 C 1451 John J. Tharp, Jr., Judge. ARGUED SEPTEMBER 23, 2013 DECIDED OCTOBER 18, 2013 Before BAUER, KANNE, and HAMILTON, Circuit Judges. BAUER, Circuit Judge. This matter involves a power struggle between the national leadership of the Transportation Workers Union of America and the leadership of several of its Local Unions. The dispute arose after American Airlines filed for 2 No. 13-1722 bankruptcy and implemented a plan to reduce its labor costs. In anticipation of the reduction in the number of American Airlines mechanics, and likewise a reduction in the number of Transportation Workers Union members, the national leadership of Transportation Workers Union consolidated several local unions and shuttered offices. The district court denied the Local Unions motion for a preliminary injunction preventing the consolidation. The affected Local Unions now appeal, challenging Transportation Workers Union of America s authority to take such action. I. BACKGROUND The facts in this case are not in dispute. Defendant, Transportation Workers Union of America ( TWU ), is an international labor union comprised of 115,000 members nationwide. TWU administers collective bargaining agreements with American Airlines ( American ). TWU established local unions in the cities where American had major operations to help adequately handle the representation of its members. The Plaintiffs, Local Unions 561, 562, 563, 564, and 565 ( Local Unions ), represent line mechanics and overhaul base mechanics. On November 29, 2011, American and its affiliates filed for Chapter 11 bankruptcy protection. They sought concessions from TWU that would yield a 20% reduction in labor costs. Extensive negotiations, which included representatives from Local Unions, occurred between American and TWU until a new collective bargaining agreement was ratified. Under the new collective bargaining agreement, the Baker Letter was eliminated. The Baker Letter required American to pay No. 13-1722 3 approximately $2 million to compensate Local Union representatives. The elimination of the Baker Letter resulted in a direct loss of funding to Local Unions. Additionally, the number of TWU-represented American mechanics was forecasted to drop by approximately 4,000 members by 2017 because American plans to add new planes to its fleet. On August 17, 2012, the former president of Local 562 proposed that the Local Unions be consolidated to improve the representation of its members. Subsequently, the TWU International Executive Council ( IEC ) established an IEC Subcommittee. The IEC Subcommittee conducted a thorough review of the restructuring, garnered input from the presidents of the Local Unions, and created a subcommittee report. The IEC Subcommittee members unanimously approved the report s recommendation to consolidate the Local Unions in an effort to address forthcoming financial pressures. Specifically, the report recommended consolidating the existing Local 561565 Line Mechanics into one new Local 591, and consolidating the three Base Overhaul Mechanic Local Unions into two. The Base Overhaul Mechanics remaining in Local 565 would merge with Local 567. On January 4, 2013, TWU International President, James Little, interpreted the TWU Constitution and concluded that TWU had the authority to consolidate the Local Unions as recommended in the IEC Subcommittee report. The IEC unanimously passed a resolution adopting the subcommittee s recommendations. The consolidation of the Local Unions was scheduled to occur on March 22, 2013. In compliance with the TWU Constitution, the Local Unions appealed the resolution to the IEC. The IEC denied the appeal. The Local Unions did 4 No. 13-1722 not follow Article XXIII of the TWU Constitution, requiring them to appeal the IEC s decision at the TWU Convention on September 23, 2013, because the consolidation would have already occurred by that date. Instead, on February 25, 2013, the Local Unions filed a complaint in the district court seeking to enjoin TWU from implementing its reorganization plan. On March 5, 2013, the Local Unions moved for a temporary restraining order and a preliminary injunction to prevent the consolidation. The district court denied the temporary restraining order, but allowed the Local Unions to submit supplemental briefing and evidence. On March 21, 2013, the district court denied the Local Unions motion for a preliminary injunction as well. On March 22, 2013, TWU consolidated the Local 561-565 Line Mechanics into Local 591 and the remaining Base Overhaul Mechanics from Local 565 merged into Local 567 as planned. The monies, books, and properties of Local Unions 561-565 were transferred to the new Local 591, Local Unions 561-565 were dissolved and their charters revoked, and new officers for Local 591 were elected. II. DISCUSSION On appeal we must determine whether TWU exceeded the powers afforded to it by the TWU Constitution when it consolidated Local Unions 561-565 into a single super-local union. The Local Unions pray for two forms of relief. First, the Local Unions ask this Court to grant injunctive relief pursuant to their previously filed preliminary injunction. If we decline to do so, the Local Unions ask this Court (1) to reinstate the charters of Local Unions 561-565; (2) to reinstate their duly No. 13-1722 5 elected officers, monies, books, properties, and constituent members; and (3) to return former Local 565 Base Overhaul Mechanics from Local Union 567. We first address the Local Unions request for a preliminary injunction that would maintain the status quo prior to March 22, 2013 of the TWU Local Unions. We cannot do so. For a preliminary injunction to be effective, it must be issued prior to the event the movant wishes to prevent. Kehoe v. Housing Auth. of South Bend, 683 F.3d 844, 845 (7th Cir. 2012) (emphasis in the original). An issue on appeal will be moot by virtue of an intervening event, [because] a court of appeals cannot grant any effectual relief whatever in favor of the appellant. Dorel Juvenile Grp., Inc. v. DiMartinis, 495 F.3d 500, 503 (7th Cir. 2007) (citing Calderon v. Moore, 518 U.S. 149, 150 (1996)). TWU s intervening consolidation of Local Unions 561565 prevents this Court from maintaining the earlier status quo of the Local Unions. Unfortunately, the United States Court of Appeals for the Seventh Circuit cannot make time run backwards; their request to grant injunctive relief is moot. Gilpin v. AFSCME, 875 F.2d 1310, 1313 (7th Cir. 1989). Though the Local Unions request for a preliminary injunction is moot, their case as a whole remains alive because other issues have not become moot. Univ. of Tex. v. Camenisch, 451 U.S. 390, 394 (1981). Plaintiffs also ask us to order affirmative relief restoring their independent status as local unions based on claimed violations of the TWU Constitution. Apart from several procedural obstacles to that request, it fails on the merits. A union s interpretation of its own constitution is entitled to judicial deference. Air Wis. Pilots Prot. Comm. v. Sanderson, 909 6 No. 13-1722 F.2d 213, 218 (7th Cir. 1990). The deference to a union s interpretation reflects a longstanding federal policy of noninterference in internal union affairs. Local 657, United Bhd. of Carpenters v. Sidell, 552 F.2d 1250, 1257 (7th Cir. 1977). To prevail, a plaintiff must show that the union s interpretation of its own constitution was unreasonable, perhaps even patently unreasonable before we can set it aside. Fulk v. United Transp. Union, 160 F.3d 405, 408 (7th Cir. 1998); (citing Air Wis. Pilots Prot. Comm., 909 F.2d at 218. To determine whether the union s interpretation was reasonable or patently unreasonable, we must first understand how much authority the TWU Constitution grants its national leadership. The same TWU Constitution was at issue in 2001 when Local 507 mechanic members challenged TWU s merger of its local union with another. Local 507, Transp. Workers Union of Am., AFL-CIO v. Transp. Workers Union of Am., AFL-CIO, No. 00 CV 12436 MEL, 2001 WL 92161 (D. Mass. 2001). The court found that [t]he TWU Constitution grants broad powers over Locals to both the IEC and the IAC. Id. at 3. The court further opined that the combination of Art. V, § 1, which empowers the International President to interpret and enforce the Constitution, along with Art. VIII, § 2, which names the IEC as the supreme authority in the International Union, indicated that ultimate power lies in the TWU national leadership instead of the Local leadership. Id. at 3. The court held that the transfer of Local 507 mechanic members to another local union was within the powers granted to TWU by its constitution. Id. at 4. Applying the court s reasoning to the case at issue here, we view the TWU Constitution as No. 13-1722 7 granting nearly plenary power to the TWU national leadership over subordinate local unions. The TWU Constitution explicitly gives the International President the power to interpret the meaning and application of the provisions of the Constitution. Art. V, § 1. In his January 4th letter regarding the IEC s authority to restructure the locals, President Little stated that, [t]he TWU Constitution grants TWU numerous powers over its Locals, including the authority to merge Locals, transfer members between Locals, dissolve Locals, revoke charters and charter new locals. See for example, Article VIII, Sections 8(a), 8(b), Article XIV, Section 2, and Article XIV, Sections 1-3 of the TWU Constitution. President Little s interpretation of the relevant sections is consistent with the court s reading of the TWU Constitution in Local 507. Here, TWU is effectively consolidating five Local Unions into one, and the consolidation is similar to the merger of two Locals into one, which the court approved in Local 507. On its face, we cannot deem President Little s interpretation as patently unreasonable. The burden remains on the Local Unions to indicate where and how President Little s interpretation  conflicts with the stark and unambiguous language of the Constitution or reads out of the Constitution important provisions. Exec. Bd. of Transp. Workers Union of Phila., Local 234 v. Transp. Workers Union of Am., AFL-CIO, 338 F.3d 166, 170 (3d Cir. 2003). The Local Unions offer a blanket argument that President Little s interpretation conflicts with eight sections of the TWU Constitution, specifically, Art. V, § 4; Art. VI, § 4; Art. VIII, §§ 8, 9; Art. XII, §§ 1, 2, 3; and Art. XIV, § 1. The district court analyzed each provision individually and found that each section was 8 No. 13-1722 either not relevant to the situation at hand or that TWU s interpretation of the section was not unreasonable. After examining the relevant sections, we agree. The Local Unions quote the text or reference sections, but fail to argue how or why TWU s interpretation conflicts with the stark and unambiguous language of the Constitution, and then arrive at a cursory conclusion that TWU s action is patently unreasonable. We are not persuaded by the Local Unions general reference to these sections and agree with the district court s analysis. The Local Unions also argue that the TWU Constitution lacks an express provision that allows for the consolidation of Local Unions 561-565, and therefore, TWU s action falls outside the authority granted to it. Int l Longshoremen s Assn., Local 1516 v. Int l Longshoremen s Assn., 815 F.2d 637, 641 (11th Cir. 1986). This argument, however, is not persuasive. While there is no single section that specifically addresses consolidating the Local Unions, two provisions provide sufficient authority to do so: Art. VIII, § 8(a) and Art. XIV, § 3. Article VIII, titled Duties and Powers of the International Executive Counsel, section 8(a), states that: Should the number of good standing members in any Local Union become reduced to the point that, in the opinion of the International Executive Council, the Local can no longer properly perform its functions, the International Executive Council may revoke the charter of such Local, or require it to merge with another Local, or take such other action as it deems advisable. No. 13-1722 9 Furthermore, Article XIV, titled Local Unions, section 3, states that, [n]o Local Union shall be dissolved, except with the approval of the International Executive Council. The explicit language of these sections allows the IEC to revoke, merge, dissolve, or take any other action as it deems advisable. The IEC is the only entity named with the authority to make these decisions. And, TWU consolidated the Local Unions only after the IEC unanimously passed the resolution to do so. In summary, TWU s actions fall wholly within the scope of the authority granted to it. TWU reasonably exercised the powers granted to it by the TWU Constitution. The Local Unions raised numerous contentions in their brief, and we decline to discuss those without merit. We hold that the Local Unions motion for a preliminary injunction against TWU is moot. We reject the Local Unions s argument that TWU s interpretation of its Constitution was patently unreasonable. III. CONCLUSION The appeal is dismissed insofar as it challenges the denial of the Local Unions motion for a preliminary injunction; otherwise, the judgment is AFFIRMED.

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In 2013, the Pennsylvania Supreme Court held that employers could be directly liable to employees for injuries that become manifest outside the time limits (300 weeks) of the Commonwealth’s workman’s compensation statute. Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013). The implications for so-called long latency, toxic tort claims were obvious, and the generated some commentary. See “Pennsylvania Workers Regain Their Right of Action in Tort against Employers for Latent Occupational Diseases” (Feb. 14, 2014); “The Erosion of Employer Immunity in Tort Litigation” (Jan. 20, 2015).
The Legal Intelligencer has now reported the first “cashing in” or “cashing out” on the change in Pennsylvania law. Plaintiff’s lawyer, Benjamin Shein, took an employer to trial on claims that the employer was responsible for alleged asbestos exposure that caused John F. Busbey to develop mesothelioma. Bobbie R. Bailey of Leader & Berkon, in Los Angeles, defended. The case was tried before Philadelphia Judge Lisette Shirdan-Harris and a jury. After a three week trial, on November 10, the jury returned a verdict in favor of plaintiff, against the employer defendant, in the amount of 1.7 million dollars. Busbey v. ESAB Group, Phila. Court of Common Pleas, No. 120503046. Max Mitchell, “Employer Found Liable In Asbestos Verdict: Busbey v. ESAB Group $1.7 Million Verdict,” The Legal Intelligencer (Dec. 1, 2015).
For witnesses, Shein called frequent litigation-industry testifiers, Dr. Steven Markowitz on occupational disease, and Dr. Daniel Dupont, a local pulmonary physician. Shein also called one of the pink panther historians, Gerald Markowitz. See “Narratives & Historians for Hire” (Dec. 15, 2010). The employer defendant called an industrial hygienist, Delno D. Malzahn.
According Ben Shein, the verdict represented the first trial win in Pennsylvania for an asbestos claim against an employer, since the Pennsylvania Supreme Court decided Tooey in 2013. From the Legal Intelligencer’s account, and the line-up of litigation industry witnesses, the plaintiff’s trial evidence on exposure and standard of care seems shaky, and the winner may not be discernible until the appellate review is concluded.
In Illinois, an intermediate appellate court held out the prospect of a legal change similar to Tooey. In 2014, the Illinois Court of Appeals held that workman compensation petitioners, whose claims fell outside the Illinois statute were not barred by the exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2014 IL App (1st) 123219. See Patrick W. Stufflebeam, “Folta v. Ferro Engineering: A Shift in Illinois Workers’ Compensation Protection for Illinois Employers in Asbestos Cases,” News & Press: IDC Quarterly (Mar. 11, 2015).
The Illinois Supreme Court allowed an appeal, as well as extensive amicus briefings from the Illinois Trial Lawyers Association, the Asbestos Disease Awareness Organization, the Illinois AFL-CIO, the Illinois Self-Insurers’ Association, the Illinois Defense Trial Counsel, a joint brief from insurers, and a joint brief from various manufacturing companies.
Earlier this month, the Illinois Supreme Court reversed and held that even though claims fell outside the Illinois workman’s compensation statute, those claims were still barred by the Act’s exclusive remedy provisions that gave employers immunity from civil suit. Folta v. Ferro Engineering, 2015 IL 118070 (November 4, 2015).
 the American Insurance Association, Property Casualty Insurers Association of America, and the Travelers Indemnity Company.
 Caterpillar Inc., Aurora Pump Company, Innophos, Inc., Rockwell Automation, Inc., United States Steel Corporation, F.H. Leinweber Company, Inc., Driv-Lok, Inc., Ford Motor Company, and ExxonMobil Oil Corporation.

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V. Maurel, V. A. Esin, P. Sallot, F. Gaslain, S. Gailliegue and L. Rémy. "Rumpling of nickel aluminide coatings: a reassessment of respective influence of thermal grown oxide and phase transformations". Materials at High Temperatures, V. 33 (2016) pp. 318-324.
Vladimir A. Esin, Vincent Maurel, Paul Breton, Alain Köster, Serge Selezneff. "Increase in ductility of Pt-modified nickel aluminide coating with high temperature ageing". Acta Materialia, V. 105 (2016) pp. 505-518.
Vladimir A. Esin and Youssef Souhar. "Solvent grain boundary diffusion in binary solid solutions: a new approach to evaluate solute grain boundary segregation". Philosophical Magazine, V. 94 (2014) pp. 4066-4079.
V.A. Esin, B. Denand, Qu. Le Bihan, M. Dehmas, J. Teixeira, G. Geandier, S. Denis, T. Sourmail, E. Aeby-Gautier. "In situ synchrotron X-ray diffraction and dilatometric study of austenite formation in a multi-component steel: Influence of initial microstructure and heating rate". Acta Materialia, V. 80 (2014) pp. 118-131.
Daria Prokoshkina, Vladimir A. Esin, Gerhard Wilde, Sergiy V. Divinski. "Grain boundary width, energy and self-diffusion in nickel: effect of material purity". Acta Materialia, V. 61 (2013) pp. 5188-5197.
2002-2006 Licence en "Physique des matériaux"
Post-doc en "Science et Génie des Matériaux"

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GOLFINO AG takes matters relating to data protection very seriously, and will collect, process and use your personal data exclusively in accordance with the principles described below and taking account of the applicable data privacy laws.
(1) The responsible body and operator of the GOLFINO Online Store (hereinafter “Online Store”) is GOLFINO AG, 21509 Glinde, Germany.
(2) The company’s data protection officer is Andreas Frick, Diestelbarg 37, 21039 Börnsen, phone: 040-69702650, fax: 03212-6906434, email: info@datenschutz-frick.de.
(1) Personal data means all data relating to an identified or identifiable natural person. This includes for example your name, phone number, and your postal and email addresses.
(2) Personal data within the meaning of the law also includes information about your use of the website, which is collected and stored by our web servers to enable us to provide and optimise our website, guarantee system security and for statistical purposes (“usage data”). This consists of the connection details of the requesting computer (IP address), which of our websites you visit, the date and duration of the visit, the identification data of the browser and type of operating system used, and the website from which you visit us. We do not use usage data to ascertain your identity, and do not combine it with other personal data we have stored.
(3) Apart from the usage data referred to in Paragraph (2) we will only collect personal data when you provide this to us voluntarily. During the course of your order or when you open a customer account, mainly the following personal data will be collected: title, name, address, email address. In addition, when you place an order, payment information such as your bank details or credit card number is collected.
(4) You have the option of updating the data on your customer account at any time and adding further information on a voluntary basis (e.g. your phone number and your date of birth).
(5) The personal data you have disclosed (title, name, address, email address, phone number, credit card number) are stored lawfully and in accordance with the provisions of the law on data privacy. Naturally your data will be treated as confidential.
- Browser and operating system of the visitor’s end device, and the name of the access provider used by the visitor.
- facilitating and improving the administration of the website.
Processing expressly does not take place for the purpose of gaining knowledge as to the identity of the visitor to the website.
(2) Your personal data will be used exclusively for managing the agreements concluded between us, for instance to deliver goods to the address you have provided. Any use of your data beyond this, for advertising or market research purposes or to structure our site in line with visitors‘ needs, shall only take place if you have granted us your consent.
If and insofar as you contact us via the contact form provided on our website, by email, phone, fax or via social media platforms, and wish to ask for information about your orders or your customer status, it might be necessary for the reasonable processing of your enquiry for you to provide us with personal data such as your name, address, date of birth, order number or invoice number. These data will exclusively be used for the specific purposes of verification and processing your enquiry. In the event of your contacting us via a social media platform, we wish to inform you that this is not owned by or in the sphere of influence of GOLFINO, and therefore we cannot guarantee the protection and confidentiality of the data made available to us via the respective social media platform. For questions on data protection, please contact the operator and owner of the social media platform concerned.
Visitors can send messages to the company via an online contact form or on the website. To be able to receive an answer, it is necessary for you to provide at least a valid email address. The person asking the question can voluntarily provide all their further details. By sending the message via the contact form, the visitor consents to the processing of the personal data they have transmitted. Such data processing will take place exclusively for the purpose of processing and answering queries via the contact form. This takes place on the basis of the consent you have voluntarily issued in accordance with. Art. 6 Para. 1 (a) GDPR.
- in accordance with Art. 6 Para. 1 (b) GDPR this is necessary for the performance of a contract with the person concerned.
In other cases personal data will not be passed on to third parties.
(2) For the delivery of the goods and processing of the payment, we will pass the necessary personal data on to logistics companies and payment service providers. These service providers are carefully selected and are obliged to handle your data in confidence and use them exclusively for the purpose of delivery or payment processing.
(3) In the case of deliveries with the delivery option “Click & Collect” the data will be transmitted to the selected store.
(1) Your customer and payment data are protected during transmission to our server by the use of SSL (Secure Socket Layer) security procedures in combination with 256-bit encryption. You can check the security of the connection by means of the details shown in the URL field in your browser. If the beginning of the address line changes from “http” to “https”, there is a secured connection.
(2) In addition, all the service providers we use for payment processing are PCI DSS (Payment Card Industry Data Security Standard) certified, and by complying with the PCI Data Security Standards they meet the highest security requirements of the E-commerce industry standards. Further information on this can be found for example at www.pcisecuritystandards.org.
(1) Insofar as we provide services before receiving payment, e.g. when goods are purchased on account, to protect our legitimate interests we will as applicable obtain creditworthiness information on the basis of mathematical and statistical procedures. For this, GOLFINO AG will transmit certain information to carefully selected service providers. The data transmitted to these companies comprises your first and last names, your address and as the case may be your date of birth. These service providers will check for the existence of negative aspects of your creditworthiness and calculate your credit score. By using recognised experience values, by means of a mathematical and statistical procedure and amongst other things the use of address data, the credit score predicts the risks of possible defaults of payment.
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(2) By registering for the GOLFINO newsletter and the GOLFINO Club, you also expressly declare your agreement to our using your email address for our own advertising purposes.
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(4) You can object at any time to our sending you the newsletter and the use of your email address for advertising purposes with future effect via the link contained in the newsletter or the advertising emails, or by email to service@golfino.com. We will draw your attention to this right of objection in the email accompanying the newsletter and separately in all other advertising emails.
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(3) GOLFINO uses small graphics known as web beacons on the website and in the Online Store. When you open a page, the web beacon is loaded and registered by a server. This makes it possible for example to identify which pages you have visited when and how frequently, and what actions you took.
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You can refuse the collection and use of information by Google at any time with future effect by installing the deactivation add-on provided by Google.
(2) This website uses the remarketing function from Google Inc, 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). This function enables visitors to the website to be shown advertising related to their interests within the framework of the Google advertising network. For this, the remarketing function uses “cookies”, text files that are stored on your computer and amongst other things make it possible to recognise your visit when you access websites belonging to the Google advertising network. On these sites you can then be shown advertising relating to content you have previously accessed on websites that use the Google remarketing function.
According to its own information, Google does not collect any personal data during this process. Nonetheless, should you not want the remarketing function you can completely deactivate it by implementing the corresponding settings at http://www.google.com/settings/ads.
(3) Our website uses the service Criteo (http://www.criteo.com/de). By means of this tool, users who have already visited our site once and have been interested in our products are offered target advertising on this website and on internet sites that also use the Criteo service. This advertising is shown on the basis of information about the visit to the respective Internet sites, which is stored amongst others in cookies on your computer. These text files are read during subsequent website visits to offer targeted product recommendations. For this purpose a randomly-generated identification number is stored in the cookies. Neither this number nor the information about your visits to the Internet sites can be allocated to you personally. In no event will these data be used to identify you personally as a visitor to our website.
You can prevent the storage and use of information by the Criteo service by accessing the following URL (http://www.criteo.com/de/datenschutzrichtlinie) and setting the “opt-out” switch to “ON”. When you select “ON”, a new cookie (opt-out cookie) will be placed on your browser. This cookie signals to the Criteo service that Criteo is not permitted to collect and process any more data on your usage behaviour. You have the option of reactivating this function by setting the switch to “OFF”. Please note that this setting has to be done for every browser you use. If all the cookies in your browser are deleted, this will also affect the opt-out cookie.
(4) Our site uses the service affilinet. affilinet places a cookie on the customer’s (visitor’s) website to record sales and/or leads correctly. This cookie is placed by the domain partners.webmaster-plan.com or banners.webmasterplan.com. This cookie corresponds to the respective valid data protection guidelines. The cookies used by affilinet are accepted in the default setting of the Internet browser. If you do not want this cookie to be stored, please deactivate the acceptance of the cookies from the relevant domains in your Internet browser. affilinet tracking cookies do not store personal data of any kind, but only the ID of the mediating partner and the serial number of the advertisement the visitor has clicked on (banner, text link or similar), which are required for payment processing. The partner ID serves to be able to allocate the commission payable to the mediating partner when a transaction is completed.
- If applicable, in the case of transmission to recipients in third countries, insofar as no decision has taken place by the EU Commission on the adequacy of the level of protection in accordance with Art. 45 Para. 3 GDPR, information on which appropriate safeguards are provided to protect the personal data in accordance with Art. 46 Para. 2 GDPR.
If you notice that the personal data we have from you are incorrect, you can ask us to correct these incorrect data immediately. If the personal data that apply to you are incomplete, you can ask us to complete them.
- The basis of the justification for such processing was exclusively your consent, which you have now retracted.
- You have filed an objection to the processing of your personal data that we have made public.
- You have filed an objection to the processing of personal data that we have not made public and there are no overriding legitimate reasons for such processing.
- Your personal data were processed unlawfully.
- The deletion of your personal data is necessary for the fulfilment of a legal obligation to which we are subject.
No entitlement to deletion exists if, in the case of lawful, unautomated data processing and due to the particular form of storage, deletion is not possible, or is only possible with a disproportionately high expense and your interest in deletion is low. In this case deletion is replaced by the restriction of processing.
- You dispute the correctness of the personal data. In this case, the restriction can be requested for the time that permits us to review the correctness of the data.
- We no longer require your personal data for the purposes of processing, however you require this for the establishment, exercise or defence of legal claims.
- You have filed an objection in accordance with Art. 21 Para. 1 GDPR. The restriction of processing can be requested until it has been established whether our legitimate reasons outweigh your reasons.
Restriction of processing means that the personal data are only processed with your consent, or for the establishment, exercise or defence of legal claims, or for the protection of the rights of another natural or legal person, or on the grounds of an important public interest. We have a duty to inform you before we lift the restriction.
You have a right to data portability if the processing is on the basis of your consent (Art. 6 Para. 1 (a) or Art. 9 Para. 2 (a) GDPR) or of a contract to which you are a contracting party, and the processing takes place by means of automated processes. In this case the right to data portability comprises the following rights, provided that this does not adversely affect the rights and freedoms of other persons: you can ask us to receive the personal data you have provided to us in a structured, conventional and machine-readable format. You have the right to transmit these data to another controller without obstruction on our part. Insofar as is technically feasible, you can ask us to transmit your personal data directly to another controller.
Insofar as the processing is on the basis of Art. 6 Para. 1 (e) GDPR (performance of a task carried out in the public interest or in the exercise of official authority) or of Art. 6 Para. 1 (f) GDPR (the legitimate interest pursued by the controller or by a third party), you have the right on grounds deriving from your particular situation to file an objection at any time against the processing of your personal data. This also applies to profiling on the basis of Art. 6 Para. 1 (e) or (f) GDPR. After you have exercised this right of objection, we will no longer process your personal data unless we can demonstrate compelling protectable reasons for the processing, which outweigh your interests, rights and freedoms, or the processing serves for the establishment, exercise or defence of legal claims.
You can file an objection to the processing of your personal data for direct advertising purposes at any time. This also applies to profiling associated with such direct advertising. After you have exercised this right of objection, we will no longer process your personal data for direct advertising purposes.
You can let our company know about this objection informally by phone, by email or to the postal address stated at the beginning of this Data Privacy Statement.
You have the right to retract the consent you have issued at any time with future effect. You can retract your consent informally by phone, by email or to our postal address. Such retraction will not affect the lawfulness of the data processing that has taken place on the basis of your consent until we received your retraction. Once we have received your retraction, the data processing that was exclusively based on your consent will be halted.
If you believe that the processing of your personal data is unlawful, you can file a complaint with a data protection supervisory authority that has competence for your place of residence or place of work or the place of the suspected infringement.
(1) This Data Privacy Statement was last updated on 25.05.2018. We reserve the right to update the Data Privacy Statement in due course in order to improve the data protection and/or adapt it to a change in the prevailing case law.

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*1 Allen A. Pemberton, Esq.
*1 This appeal arises from a size determination issued by the U.S. Small Business Administration (SBA) Office of Government Contracting, Area I (Area Office) concluding that Newport Materials, LLC (Appellant) is not a small business under the size standard associated with the subject procurement. Appellant maintains that the size determination is clearly erroneous, and requests that SBA's Office of Hearings and Appeals (OHA) reverse or remand. For the reasons discussed infra, the appeal is denied and the size determination is affirmed.
*1 On July 27, 2015, the U.S. Department of the Air Force (Air Force) issued Invitation for Bids (IFB) No. FA2835-15-B-0002 for the repair/replacement of roadways, curbing, and sidewalks, including required demolition and earthwork. The IFB contemplated award of a single indefinite-delivery, indefinite-quantity (ID/IQ) contract, with a guaranteed minimum of $2,500 and a maximum total value of $23 million. The Contracting Officer (CO) set aside the procurement entirely for small businesses and assigned North American Industry Classification System (NAICS) code 237310, Highway, Street, and Bridge Construction, with a corresponding size standard of $36.5 million average annual receipts. Bids were opened September 2, 2015.
*1 The Air Force announced that Appellant was the apparent awardee, and RC&D, Inc. (RC&D), a disappointed bidder, filed a protest challenging Appellant's size. The Area Office determined that RC&D's protest was untimely. However, on September 23, 2015, the Area Director initiated her own protest of Appellant's size pursuant to 13 C.F.R. § 121.1001(a)(1)(iii).
*1 On November 9, 2015, the Area Office issued Size Determination No. 1-SD-2015-49 concluding that Appellant is not a small business. Appellant appealed to OHA, and on December 29, 2015, OHA remanded the matter to the Area Office for further analysis. Size Appeal of Newport Materials, LLC, SBA No. SIZ-5702 (2015). OHA explained that SBA had requested the remand in order to address “several errors in the calculation of receipts which cannot be corrected with the documentation that is in the agency record.” Id. at 1.
*2 On February 23, 2016, the Area Office reissued Size Determination No. 1-SD-2015-49, and again found that Appellant is not a small business.
*2 The Area Office determined that Mr. DeFelice has the power to control Appellant, Newport Construction, D&D Dining, Valentino's Market, 540 Groton, 540 Materials, WorldTech, and Four Acres by virtue of his ownership interests. (Id. at 6, citing 13 C.F.R. § 121.103(c)(1).) These companies are therefore affiliated because all are controlled by Mr. DeFelice.
*2 Appellant maintained that Four Acres' receipts should be excluded from the calculations as inter-affiliate transactions because “Four Acres' only purpose (and only source of receipts/revenue) is to facilitate payroll activity for Newport Construction and it is a dollar-for-dollar transaction from Newport Construction's account to Four Acres to perform payroll activity.” (Id. at 7.) The Area Office rejected this argument for three reasons. First, the Area Office explained, not all inter-affiliate transactions are excludable, only those where the concerns in question are eligible to file a consolidated tax return. (Id., citing Size Appeals of G&C Fab-Con, LLC, SBA No. SIZ-5649 (2015) and Size Appeal of Tenax Aerospace, LLC, SBA No. SIZ-5701 (2015).) Here, Four Acres and Newport Construction are legally prohibited from filing a consolidated tax return because they are both S corporations. (Id. at 8, citing 26 U.S.C. § 1504.) Second, the exclusion applies only to transactions between the challenged firm and an affiliate, not to transactions among affiliates of the challenged firm, as is the case here since Appellant is not a party to the transactions. (Id. at 9, citing G&C Fab-Con and Tenax Aerospace.) Third, the exclusion is intended to prevent double-counting of receipts received by both a parent company and its subsidiary. (Id. at 10, citing Size Appeal of Columbus Techs., SBA No. SIZ-4831 (2007) and G&C Fab-Con.) Here, though, Four Acres did not become a subsidiary of Newport Construction until January 13, 2015. As Newport Construction and Four Acres were not parent and subsidiary when the transactions occurred, the transactions between them are not excludable.
*3 The Area Office found that the combined average annual receipts of Appellant, Newport Construction, D&D Dining, Valentino's Market, 540 Groton, 540 Materials, WorldTech, and Four Acres exceed the $36.5 million size standard for the instant procurement. Therefore, Appellant is not a small business.
*3 On March 10, 2016, Appellant appealed the size determination to OHA and requested an oral hearing. In the appeal, Appellant focuses exclusively on Four Acres' receipts and the Area Office's decision that they should not be excluded. Appellant contends that the Area Office misapplied OHA case law, because key factors distinguish this case from the cases cited by the Area Office.
*4 Appellant argues that its proffered interpretation of Tenax Aerospace and G&C Fab-Con is also consistent with the purpose of the inter-affiliate transaction exclusion, which Appellant asserts, is “to prevent double counting of receipts among consolidated concerns.” (Id. at 9, citing 69 Fed. Reg. 29,192 (May 21, 2004).) Four Acres, Appellant emphasizes, did not independently generate revenues. Instead, Four Acres “received weekly transfers of funds from Newport Construction sufficient to cover [its] payroll activities”, which Four Acres then paid out to covered Newport Construction employees. (Id. at 12.) The Area Office's inclusion of payments that Newport Construction made to Four Acres resulted in the exact type of double-counting that the exclusion for inter-affiliate transactions is designed to address.
*4 Appellant lastly addresses the Area Office's determination that the exclusion does not apply because Newport Construction and Four Acres are ineligible to file a consolidated tax return due to their status as S-corporations. The firms, Appellant emphasizes, are both completely owned by the same individual; it is merely their corporate form which bars them from filing a consolidated tax return. The inability to file a consolidated tax return should not prevent the exception from applying here because this would create an arbitrary result unrelated to the purpose of the rule. For example, the exclusion applies to “proceeds from transactions between a concern and its ... foreign affiliates”, but foreign corporations are generally prohibited from filing consolidated tax returns. (Id. at 16-17, quoting 13 C.F.R. § 121.104(a) (emphasis Appellant's).) Therefore, Appellant urges, OHA should conclude that concerns may still be eligible for the exclusion notwithstanding that they are prohibited from filing a consolidated tax return.
*5 Appellant has the burden of proving, by a preponderance of the evidence, all elements of the appeal. Specifically, Appellant must prove the size determination is based upon a clear error of fact or law. 13 C.F.R. § 134.314. OHA will disturb an area office's size determination only if, after reviewing the record, the administrative judge has a definite and firm conviction that the area office erred in making its key findings of fact or law. Size Appeal of Taylor Consultants, Inc., SBA No. SIZ-4775, at 11 (2006).
*5 OHA may conduct an oral hearing “upon concluding that there is a genuine dispute as to a material fact that cannot be resolved except by the taking of testimony and the confrontation of witnesses.” 13 C.F.R. § 134.222(a)(2). An oral hearing is seldom necessary for size appeals, however, because OHA does not conduct its own investigation into the size of a challenged firm. Rather, OHA's role is to determine “whether the area office committed any clear error of fact or law, based on the contemporaneous record available to the area office.” Size Appeal of DefTec Corp., SBA No. SIZ-5540, at 7 (2014). Here, an oral hearing is not required to resolve this dispute. The sole issue presented in the case is the applicability of the inter-affiliate transaction exception, and Appellant raises only legal arguments, not questions of fact. Accordingly, because no material facts are in dispute, Appellant's request for an oral hearing is DENIED.
*5 Relying upon OHA precedent, the Area Office determined that the exclusion for inter-affiliate transactions is not applicable in this case, for three reasons. First, the exclusion only applies to concerns that are eligible to file a consolidated tax return. Tenax Aerospace, SBA No. SIZ-5701, at 16; G&C Fab-Con, SBA No. SIZ-5649, at 8-9. In the instant case, Newport Construction and Four Acres are not eligible to file such a return due to their status as S corporations, so the exclusion does not apply. Second, the exclusion for inter-affiliate transactions applies only to transactions between the challenged concern and its affiliates. Tenax Aerospace, SBA No. SIZ-5701, at 16; G&C Fab-Con, SBA No. SIZ-5649, at 7 (“by its plain language, the exception does not apply to transactions to which the challenged firm is not a party.”). Here, the exclusion does not apply because the transactions in question were between Newport Construction and Four Acres, and did not involve Appellant itself. Third, “the exclusion applies only to transactions between a parent company and its subsidiary.” Size Appeal of Orion Construction Corp., SBA No. SIZ-5694, at 9 (2015); accord Tenax Aerospace, SBA No. SIZ-5701, at 16; G&C Fab-Con, SBA No. SIZ-5649, at 9. Although Newport Construction and Four Acres became parent and subsidiary in January 2015, the firms did not have such a relationship at the time the transactions occurred (i.e., 2012 through 2014). As a result, the exclusion does not apply.
*6 Appellant does not dispute the Area Office's factual findings. Rather, Appellant maintains that the OHA decisions cited by the Area Office are distinguishable from the instant case and should not be controlling. Appellant highlights in particular that G&C Fab-Con involved affiliation through common management — rather than common ownership — as well as receipts retained by different majority owners. Conversely, Newport Construction and Four Acres are both owned by Mr. DeFelice, so there is no possibility that multiple owners would benefit by excluding transactions between Newport Construction and Four Acres.
*6 The problem for Appellant is that OHA considered, and rejected, substantially similar arguments in Tenax Aerospace and Orion Construction. Indeed, the challenged firm in Tenax Aerospace made virtually the same argument that Appellant raises here, asserting that “G&C Fab-Con is distinguishable because affiliation was found based on common management, not common ownership, and the receipts in question did not ultimately go to the same owner, as they do here.” Tenax Aerospace, SBA No. SIZ-5701, at 5. OHA denied the appeal and affirmed the size determination, concluding that the exclusion for inter-affiliate transactions did not apply. Id. at 16-18. Likewise, in Orion Construction, the companies in question were wholly owned by a husband and wife, who were treated as a single entity due to their identity of interest. Orion Construction, SBA No. SIZ-5694, at 2-3. OHA cited G&C Fab-Con in concluding that the challenged firm could not avail itself of the exclusion for inter-affiliate transactions. Id. at 9. Accordingly, in both Tenax Aerospace and Orion Construction, OHA found that the exclusion for inter-affiliate transactions was not applicable, notwithstanding that affiliation was based on ownership, and notwithstanding that the transactions did not benefit different owners. I therefore find no basis to distinguish the instant case from OHA precedent.
*6 Appellant also argues that the Area Office's decision elevates form over substance, results in double-counting, and constitutes poor public policy. OHA has long held, however, that exclusions from receipts are strictly construed, and “there is no general ‘catch-all’ exclusion for double-counting in the regulation.” Size Appeal of The Assoc. Constr. Co., SBA No. SIZ-5314, at 6 (2011). Arguments as to which policy objectives should, ideally, be reflected in SBA regulations are beyond the scope of OHA's review, and should instead be directed to SBA policy officials. OHA does not set agency policy, but rather determines whether an area office has committed clear errors of fact or law in reaching its decision. No such error has been shown here.
*7 Appellant has not demonstrated that the size determination is erroneous. I therefore DENY the appeal and AFFIRM the size determination. This is the final decision of the Small Business Administration. See 13 C.F.R. § 134.316(d).
This decision was originally issued under the confidential treatment provision of 13 C.F.R. § 134.205. Appellant indicated that it did not wish to propose redactions to the decision. OHA now issues the decision for public release.