Amicus Curiae Brief — Federal Communications Commission, et al., Petitioners v. AT&T, Inc.
Supreme Court briefMar 27, 2026
Ask Donna
What actually matters in this document.
Text
Nos. 25-406 & 25-567
IN THE
Supreme Court of the United States
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Petitioners,
v.
AT&T, INC.,
Respondent.
VERIZON COMMUNICATIONS, INC.,
Petitioner,
v.
FEDERAL COMMUNICATIONS COMMISSION, ET AL.,
Respondents.
On Writs of Certiorari to
the United States Courts of Appeals
for the Second and Fifth Circuits
BRIEF OF CITIZENS UTILITY BOARD OF
ILLINOIS AS AMICUS CURIAE IN SUPPORT OF
THE FEDERAL COMMUNICATIONS COMMISSION
ALEXANDER L. TOM
EARTHJUSTICE
1 Sansome Street
Suite 1700
San Francisco, CA 94104
1
CAROLINE A. FLYNN
Counsel of Record
NICK LAWTON
EARTHJUSTICE
1250 Eye Street NW
Floor 4
Washington, DC 20001
(202) 797-4316
cflynn@earthjustice.org
Counsel for Amicus Curiae
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES....................................... ii
INTEREST OF AMICUS CURIAE.............................1
INTRODUCTION AND SUMMARY OF
ARGUMENT ...............................................................3
ARGUMENT ...............................................................5
I.
Congress Has Replicated The Challenged
Agency-Enforcement Scheme Across The U.S.
Code .......................................................................5
II. The Carriers’ Policy Objections To The TwoStage Enforcement Structure Are Meritless ..... 17
CONCLUSION .......................................................... 27
ii
TABLE OF AUTHORITIES
Cases
Page(s)
American Efficient LLC v. FERC,
No. 1:25-cv-68, 2025 WL 3268367 (M.D.N.C.
Nov. 24, 2025)..................................................... 1, 2
Blodgett v. Holden,
275 U.S. 142 (1927) .............................................. 15
Capital Traction Co. v. Hof,
174 U.S. 1 (1899) ................................................ 2, 5
Commodity Futures Trading Commission v. Schor,
478 U.S. 833 (1986) .............................................. 19
Crowell v. Benson,
285 U.S. 22 (1932) ..................................................3
Curtis v. Loether,
415 U.S. 189 (1974) .............................................. 25
Ex Parte Peterson,
253 U.S. 300 (1920) ................................ 5, 6, 22, 25
FDA v. Wages & White Lion Investments, L.L.C.,
604 U.S. 542 (2025) .............................................. 26
FERC v. Powhatan Energy Fund, LLC,
949 F.3d 891 (4th Cir. 2020) .................... 16, 22, 26
Henderson’s Distilled Spirits,
81 U.S. 44 (1872) .................................................. 19
iii
TABLE OF AUTHORITIES—Continued
Page(s)
Kleppe v. Delta Mining, Inc.,
423 U.S. 403 (1976) .............................................. 15
Lessee of Edward Livingston v. Moore,
32 U.S. (3 Pet.) 469 (1833) .....................................5
Meeker v. Lehigh Valley Railroad Co.,
236 U.S. 412 (1915) ........................................ 2, 5, 6
Parsons v. Bedford,
28 U.S. (3 Pet.) 433 (1830) ................................... 25
SEC v. Jarkesy,
603 U.S. 109 (2024) ................................................3
Walker v. New Mexico & Southern Pacific Railroad,
65 U.S. 593 (1897) ................................................ 22
Wellness International Network, Ltd. v. Sharif,
575 U.S. 665 (2015) .............................................. 19
Constitution, Statutes, and Regulations
U.S. Const. amend. VII ...............................................5
6 U.S.C. § 203(1) ........................................................ 11
7 U.S.C. § 2023(a)(13) ............................................... 12
7 U.S.C. § 2023(a)(15) ............................................... 12
15 U.S.C. §§ 3301 et seq. .............................................9
iv
TABLE OF AUTHORITIES—Continued
Page(s)
15 U.S.C. § 3414(a) ......................................................9
15 U.S.C. § 3414(b)(6) .................................................9
15 U.S.C. § 3414(b)(6)(A) ............................................9
15 U.S.C. § 3414(b)(6)(F) .............................................9
16 U.S.C. §§ 791a et seq. .............................................7
16 U.S.C. § 823b(c) ......................................................7
16 U.S.C. § 823b(d) ......................................................8
16 U.S.C. § 823b(d)(1) ....................................... 2, 7, 21
16 U.S.C. § 823b(d)(2)(B) ............................................7
16 U.S.C. § 823b(d)(3) ............................................... 21
16 U.S.C. § 823b(d)(3)(A) ........................................ 2, 7
16 U.S.C. § 823b(d)(3)(B) .................................... 2, 8, 9
16 U.S.C. § 823b(d)(4) ........................................... 8, 25
16 U.S.C. § 823b(d)(5) .................................................8
16 U.S.C. § 824b ..........................................................8
16 U.S.C. § 825o-1 .......................................................8
16 U.S.C. § 825o-1(b) ............................................... 2, 8
v
TABLE OF AUTHORITIES—Continued
Page(s)
16 U.S.C. § 3373 ........................................................ 11
16 U.S.C. § 3373(a)(4) ............................................... 11
16 U.S.C. § 3373(a)(5) ............................................... 11
16 U.S.C. § 3373(b) .................................................... 11
16 U.S.C. § 3373(c) .................................................... 11
19 U.S.C. § 1592 ........................................................ 12
19 U.S.C. § 1592(a)(1) ............................................... 11
19 U.S.C. § 1592(b)(1)-(2) .......................................... 11
19 U.S.C. § 1592(e)(1) ................................................ 11
19 U.S.C. § 1593a(b) .................................................. 12
19 U.S.C. § 1593a(i)................................................... 12
21 U.S.C. § 844a(g) .................................................... 12
28 U.S.C. § 2462 ........................................................ 25
30 U.S.C. § 819(a) (1976) .......................................... 15
42 U.S.C. § 300e-9(d) ................................................. 12
42 U.S.C. § 300e-9(d)(1) ............................................ 12
42 U.S.C. § 300e-9(d)(2) ............................................ 12
vi
TABLE OF AUTHORITIES—Continued
Page(s)
42 U.S.C. § 300e-9(d)(3) ............................................ 12
42 U.S.C. §§ 2011 et seq. .............................................9
42 U.S.C. § 2282a ...................................................... 10
42 U.S.C. § 2282a(a) ....................................................9
42 U.S.C. § 2282a(c)(1)-(3) ..........................................9
42 U.S.C. § 2282b(a) .................................................. 10
42 U.S.C. §§ 6201 et seq. ........................................... 10
42 U.S.C. § 6302(a) .................................................... 10
42 U.S.C. § 6303 ........................................................ 10
42 U.S.C. § 6303(d)(1)-(3) .......................................... 10
42 U.S.C. §§ 8301 et seq. ........................................... 10
42 U.S.C. § 8311 ........................................................ 10
42 U.S.C. § 8411 ........................................................ 10
42 U.S.C. § 8433 ........................................................ 10
42 U.S.C. § 8433(d)(1)-(3) .......................................... 10
47 U.S.C. § 503(b)(1) ................................................. 21
47 U.S.C. § 503(b)(4) ................................................. 21
vii
TABLE OF AUTHORITIES—Continued
Page(s)
47 U.S.C. § 504(a) ........................................................3
47 U.S.C. § 504(b) ...................................................... 25
Act to Repeal and Amend Certain Sections of the
Powerplant and Industrial Fuel Use Act of 1978,
Pub. L. No. 100-42, 101 Stat. 310 (1987) ............ 10
220 Ill. Comp. Stat. § 10/2...........................................1
220 Ill. Comp. Stat. § 10/5(1)(a) ..................................1
220 Ill. Comp. Stat. § 10/5(2)(d) ..................................1
17 C.F.R. § 229.103(c)(3)(iii) ..................................... 24
18 C.F.R. § 385.1505 ................................................. 21
18 C.F.R. § 385.1506 ................................................. 21
18 C.F.R. § 385.1507 ...................................................7
18 C.F.R. § 385.1509 ........................................... 21, 23
18 C.F.R. § 385.1511 ................................................. 23
47 C.F.R. § 1.80(g) ..................................................... 21
Legislative Materials
S. Rep. No. 86-1857 (1960) ......................................... 13
S. Rep. No. 91-526 (1969) .......................................... 13
viii
TABLE OF AUTHORITIES—Continued
Page(s)
S. Rep. No. 95-778 (1978) .......................................... 14
H.R. Rep. No. 94-518 (1975)...................................... 14
H.R. Rep. No. 95-1752 (1978) (Conf. Rep.) ............... 15
H.R. Rep. No. 106-301 (1999) (Conf. Rep.) ............... 17
Endangered Species: Hearings on S. 335, S. 671, & S.
1280 before the Subcommittee on Energy, Natural
Resources, & the Environment of the Senate
Committee on Commerce, 91st Cong. (1969) ....... 13
Fish & Wildlife Coordination Act: Hearings on H.R.
5604 Before the House Subcommittee on Fisheries
& Wildlife Conservation & the Environment, 96th
Cong. (Oct. 17, 1979) ............................................ 15
Proposed Amendments to FCC Act of 1934: Hearing
on S. 1898 before the Communications Subcomm.
of the Senate Committee on Interstate & Foreign
Commerce, 86th Cong., 2d Sess. (1960)............... 14
115 Cong. Rec. H11181 (daily ed. Nov. 20, 1969) .... 13
Other Authorities
24 Fed. Proc., L. Ed. § 56:1070 (Feb. 2026 update).. 10
Christopher J. Walker & David Zaring, The Right to
Remove in Agency Adjudication, 85 Ohio St. L.J. 1
(2024) .................................................................... 19
ix
TABLE OF AUTHORITIES—Continued
Page(s)
FERC Office of Enforcement, 2025 Report on
Enforcement (Nov. 20, 2025),
https://perma.cc/2U2D-8D5L ............................... 17
Final Report of the Attorney General’s Committee on
Administrative Procedure (1941) ................... 18, 25
Gerald Lynch, Our Administrative System of
Criminal Justice, 66 Fordham L. Rev. 2117
(1998) .................................................................... 21
In re Amendment,
19 FCC Rcd. 6540 (2004) ..................................... 23
Louis L. Jaffe, Judicial Control of Administrative
Action (1965) ............................................. 15, 18 20
Procedural Rules for the Assessment of Civil
Penalties for Classified Information Security
Violations, 70 Fed. Reg. 3599 (Jan. 26, 2005) ..... 17
Rachel E. Barkow, Institutional Design and the
Policing of Prosecutors: Lessons from
Administrative Law, 61 Stan. L. Rev. 869
(2009) .................................................................... 22
Richard Lorren Jolly, The Administrative State’s
Jury Problem, 98 Wash. L. Rev. 1187 (2023) ...... 18
Roger W. Kirst, Administrative Penalties and the
Civil Jury, 126 U. Pa. L. Rev. 1281 (1978) ......... 18
x
TABLE OF AUTHORITIES—Continued
Page(s)
Scott Brady et al., White Collar Defense Do’s and
Don’ts For Meeting with DOJ (June 18, 2021),
https://perma.cc/8JUR-ZN5A............................... 21
INTEREST OF AMICUS CURIAE
The State of Illinois established the Citizens
Utility Board (CUB) as a nonprofit public body
empowered to “[r]epresent and protect the interests of
the residential utility consumers of [the] State,”
including by “participat[ing] on behalf of utility
consumers in any proceeding which affects [their]
interest.” 220 Ill. Comp. Stat. § 10/5(1)(a) & (2)(d); see
also id. § 10/2. 1 CUB submits this brief because it is
an intervenor in a pending suit in which a regulated
entity has advanced a similar Seventh Amendment
challenge to the enforcement authority of another
agency, the Federal Energy Regulatory Commission
(FERC). That challenge is equally meritless. See
American Efficient LLC v. FERC, No. 1:25-cv-68, 2025
WL 3268367, at *12 (M.D.N.C. Nov. 24, 2025) (finding
no likelihood of success).
The American Efficient case arises out of FERC’s
notice to a participant in a FERC-regulated market
seeking more information about the participant’s
possible violations of the Federal Power Act, FERC
rules, and FERC-approved tariffs. 2025 WL 3268367,
at *1. Specifically, FERC staff has alleged that the
respondent, American Efficient LLC, extracted
payments from wholesale-electricity capacity markets
in exchange for purported energy-efficiency projects
that did not actually cause reductions in energy use.
No counsel for a party authored this brief in whole or in
part, and no such counsel, party, or any other person or entity—
other than amicus curiae and its counsel—made a monetary
contribution intended to fund the preparation or submission of
this brief.
1
(1)
2
See D. Ct. Doc. 19-1, at 13-14, 16 in American
Efficient, supra (M.D.N.C. Mar. 3, 2025). Because
American Efficient’s projects did not reduce energy
demand “by a single [megawatt],” its scheme
amounted to a “ ‘wealth transfer’ from [utility]
ratepayers to the Company”—to the tune of hundreds
of millions of dollars. Id. at 67 n.215, 116. FERC’s
notice anticipates that the agency will seek civil
penalties along with disgorgement. See 16 U.S.C.
§ 825o-1(b).
As detailed further below, in response to FERC’s
notice, American Efficient had the option to require
FERC to issue a written order assessing penalties,
should the Commission determine they are
warranted. See 16 U.S.C. § 823b(d)(1) & (d)(3)(A).
FERC would then be obligated to go to an Article III
district court to obtain those penalties. See id.
§ 823b(d)(3)(B). Instead, American Efficient filed its
own suit to prevent FERC from moving forward in any
way on its charges, claiming a Seventh Amendment
violation. The district court denied a preliminary
injunction, relying on this Court’s decisions in Meeker
v. Lehigh Valley Railroad Co., 236 U.S. 412 (1915),
and Capital Traction Co. v. Hof, 174 U.S. 1 (1899). See
American Efficient, 2025 WL 3268367, at *12.
The Federal Power Act’s enforcement scheme is
similar in many respects to the Communications Act
procedures challenged here. As a result, this Court’s
decision will likely have significant bearing on the
constitutionality of FERC’s own authority. 2 CUB
CUB has also argued that FERC’s charges against
American Efficient do not implicate the Seventh Amendment at
all because they adjudicate matters falling within the public2
3
accordingly submits this brief to highlight other
agencies whose crucial enforcement authorities may
be called into question by a decision in the carriers’
favor—and to explain why that result would not
further the aim of procedural fairness to respondents
in agency proceedings. 3
INTRODUCTION AND
SUMMARY OF ARGUMENT
The carriers’ Seventh Amendment challenge to
Sections 503 and 504 of the Communications Act of
1934 is meritless. Under those provisions, the Federal
Communications Commission (FCC) initially assesses
a civil penalty in a non-binding order and then, if the
respondent elects not to pay, files a recovery action in
district court. That district-court suit “shall be a trial
de novo,” 47 U.S.C. § 504(a), where the respondent
may request a jury if it wishes. If the Seventh
Amendment applies here at all, see U.S. Br. 20, it
requires nothing more.
In addition to being perfectly constitutional, this
two-stage framework is common. At least eleven
rights doctrine. See D. Ct. Doc. No. 22-6, at 2, 10-17, in American
Efficient, supra (M.D.N.C. Mar. 4, 2025); see also SEC v. Jarkesy,
603 U.S. 109, 128 (2024) (this Court has recognized “a class of
cases” concerning “ ‘public rights,’ ” which “ ‘historically could
have been determined exclusively by the executive and
legislative branches’ ” (brackets and citation omitted)); Crowell v.
Benson, 285 U.S. 22, 58 (1932) (adjudications involving “the rates
and practices of interstate carriers” fall within the public-rights
doctrine). The United States has not asked the Court to consider
the public-rights doctrine in this case. See AT&T Pet. 7.
This brief uses “respondent” to refer to entities
responding to an agency’s charges in an enforcement action, not
to the respondent in No. 25-406 or respondents in No. 25-567.
3
4
other statutes—covering agencies such as FERC,
Customs and Border Protection, the Department of
Energy, and the Fish and Wildlife Service—require
the agency to first conduct administrative assessment
proceedings before the government sues the violator
in a trial court. Those schemes enforce important
federal priorities like the integrity of interstate
energy markets, nuclear-weapon safety, honest
reporting of imported merchandise, and wildlife
trafficking. They are the product of longstanding and
widespread consensus, reflected in this Court’s
precedent and elsewhere, that the Seventh
Amendment is satisfied so long as a defendant may
obtain a jury verdict before he is legally compelled to
pay a money judgment. A sudden rejection of that
consensus in this case would thus have ripple effects
across the U.S. Code, potentially invalidating
multiple agencies’ ability to seek any civil penalties
under those statutes. The Court should decline the
carriers’ invitation to bring about that profoundly
destabilizing result.
The carriers’ various policy objections to this kind
of two-stage enforcement scheme are not convincing.
The possibility that agency assessment orders may
cause reputational harm is not constitutionally
significant: Comparable risks could arise from agency
notices of proposed charges and final orders of
nonlegal remedies, yet the Seventh Amendment does
not require a jury verdict before such things occur.
The carriers also fail to support their contention that
agencies will unduly delay filing recovery suits
essential to fulfilling their statutory mandates.
On the other side of the ledger, pre-suit penaltyassessment procedures benefit respondents by forcing
5
agencies to proceed carefully in their enforcement
actions; to show their work; and to meaningfully
consider the respondent’s evidence and arguments
before going to court. In this respect, such procedures
are akin to a target sitting down with the agency to
persuade it not to file a complaint—except that the
safeguards here are formal and statutorily mandated.
Congress thus has had good reason to repeatedly rely
on two-stage enforcement schemes, which maintain a
role for agency expertise and policy judgment while
preserving fairness to regulated entities.
ARGUMENT
I.
Congress Has Replicated The Challenged
Agency-Enforcement Scheme Across The
U.S. Code
a. The United States has explained why the
agency-enforcement scheme at issue—where a nonArticle III decisionmaker determines whether
penalties are warranted in the first instance, with a
jury trial available afterward—fully accords with the
text, purpose, and original understanding of the “right
of trial by jury” that the Seventh Amendment
preserves. U.S. Const. amend. VII; see U.S. Br. 19-24,
29-31. The United States has also correctly described
how this Court’s decisions, including Meeker v. Lehigh
Valley Railroad Co., 236 U.S. 412 (1915), Capital
Traction Co. v. Hof, 174 U.S. 1 (1899), Ex Parte
Peterson, 253 U.S. 300 (1920), and Lessee of Edward
Livingston v. Moore, 32 U.S. (3 Pet.) 469 (1833),
control the analysis here and plainly establish that
the FCC’s two-stage enforcement structure is
constitutional. See U.S. Br. 25-28.
6
As this Court has explained, the only “limitation”
the Seventh Amendment imposes on Congress is “that
enjoyment of the right of trial by jury be not
obstructed” and “the ultimate determination of issues
of fact by the jury be not interfered with.” Ex parte
Peterson, 253 U.S. at 310 (emphasis added).
Empowering an agency to assess penalties in the first
instance, with a jury trial available afterward, “cuts
off no defense, interposes no obstacle to a full
contestation of all the issues, and takes no question of
fact from either court or jury.” Meeker, 236 U.S. at
430. This framework thus “does not abridge the right
of trial by jury, or take away any of its incidents.” Id.
CUB agrees with the United States’ legal
arguments and will not rehash them here. Instead,
CUB underscores Congress’s extensive reliance on
this Court’s precedent and established consensus in
creating multiple agency enforcement schemes that
are materially similar to the FCC’s under Sections 503
and 504 of the Communications Act. As a result of
that congressional practice, a decision from this Court
declaring the FCC scheme unconstitutional would call
into question numerous other agency-enforcement
provisions, creating profound disruption and
destabilization threatening a wide array of federal
priorities.
b. In addition to the Communications Act, at least
eleven other federal statutes currently authorize
agencies to obtain civil penalties for violations of
federal law by (1) issuing an assessment order, and
then (2) seeking the penalties in a de novo districtcourt action. This brief refers to that basic framework
7
as a “two-stage” structure. 4 Under some of those
statutes, the respondent has an initial choice between
formal adjudication before the agency (with judicial
review available afterward) and the two-stage
structure. Under all of them, the respondent retains
the option of demanding a jury trial in district court
before paying any penalties. All of these enforcement
schemes therefore comply with the Seventh
Amendment and Article III.
FERC, Federal Power Act Part I, hydropower
authority. Part I of the Federal Power Act, 16 U.S.C.
§§ 791a et seq.—which concerns hydropower
operations—authorizes FERC to seek civil penalties
to address violations of FERC orders or any term or
condition of a license or permit. 16 U.S.C. § 823b(c).
FERC must first provide notice of the proposed
penalty, at which point the respondent may choose
between two alternative pathways.
See id.
§ 823b(d)(1).
Under the first pathway, the respondent may
contest the charges in a formal adjudication before the
agency, with judicial review available afterward in a
court of appeals under the standards of the
Administrative Procedure Act.
See 16 U.S.C.
§ 823b(d)(2)(B). Under the second pathway, the
respondent may contest the charges in writing, and
FERC thereafter may issue a penalty-assessment
order. See id. § 823b(d)(1) & (d)(3)(A); 18 C.F.R.
§ 385.1507. If the respondent does not pay the
As the United States explains (Br. 31-32), Congress first
began authorizing agencies to issue monetary awards under this
two-stage framework in 1889. This brief focuses on statutes
currently in effect.
4
8
assessed amount within 60 days, FERC “shall
institute an action” in federal district court, where the
court “shall have authority to review de novo the law
and the facts involved, and shall have jurisdiction to
enter a judgment enforcing, modifying, and enforcing
as so modified, or setting aside in whole or in [p]art,
such assessment.” 16 U.S.C. § 823b(d)(3)(B) (footnote
omitted; emphasis added). 5 Under either pathway,
FERC retains the power to lower or fully compromise
the penalty amount at any time before the respective
court issues a final judgment. Id. § 823b(d)(4).
FERC, Federal Power Act Part II, electricity
authority.
Part II of the Federal Power Act
authorizes FERC to regulate the transmission and
wholesale sale of electricity in interstate commerce.
See 16 U.S.C. § 824b. The Act also authorizes FERC
to seek civil penalties for statutory violations or
violations of FERC rules or orders, including FERCapproved tariffs. Id. § 825o-1. 6 Part II of the Act
cross-references the enforcement procedures in Part I.
Id. § 825o-1(b) (citing id. § 823b(d)).
Thus,
respondents in Part II proceedings likewise have a
choice between formal adjudication before the agency
Reinforcing that the de novo district-court action is
designed to enable review of the assessed penalty—not just its
collection—the Federal Power Act separately provides for a
district-court collection action if the respondent fails to pay
following final judgment in the de novo suit. See 16 U.S.C.
§ 823b(d)(5).
5
This is the enforcement authority at issue in American
Efficient; FERC staff has alleged that American Efficient
violated tariffs governing regional capacity markets, as well as
FERC’s market-manipulation rule, to unlawfully extract
millions of dollars from electricity ratepayers. See supra at 1-2.
6
9
or the two-stage pathway, and in the latter, “de novo”
district-court review is available before penalties
must be paid. Id. § 823b(d)(3)(B).
FERC, Natural Gas Policy Act. The Natural
Gas Policy Act of 1978, 15 U.S.C. §§ 3301 et seq.,
authorizes FERC to seek civil penalties for violations
of the Act’s provisions or implementing rules,
including rules and orders governing participation in
natural-gas markets. 15 U.S.C. § 3414(a) & (b)(6).
The Act authorizes the two-stage pathway only: after
providing notice to the respondent, either FERC or the
President (for certain kinds of violations) may issue a
penalty-assessment order, and if the respondent does
not pay, FERC must institute a “de novo” districtcourt action. Id. § 3414(b)(6)(A) & (b)(6)(F).
Department of Energy, Atomic Energy Act,
nuclear-safety violations. The Atomic Energy Act
of 1954, as amended, 42 U.S.C. §§ 2011 et seq.,
authorizes the Department of Energy (DOE) to seek
civil penalties against government contractors who
violate nuclear-safety rules and whistleblower
protections.
42 U.S.C. § 2282a(a).
The Act’s
enforcement procedures largely replicate the Federal
Power Act’s alternative-pathway scheme described
above: the respondent has a choice between formal
agency adjudication (with subsequent judicial
review), or it can elect to have DOE issue an
assessment order and recover unpaid assessed
penalties in a “de novo” district-court action. Id.
§ 2282a(c)(1)-(3).
DOE, Atomic Energy Act, security violations.
DOE also has authority to seek civil penalties for
contractors’ violations of rules protecting restricted,
10
sensitive, or classified information about nuclear
weapons. 42 U.S.C. § 2282b(a). This authority uses
the same alternative-pathway procedures as 42
U.S.C. § 2282a. See supra at 9.
DOE, Energy Policy and Conservation Act.
The Energy Policy and Conservation Act of 1975, 42
U.S.C. §§ 6201 et seq., authorizes DOE to seek civil
penalties against manufacturers who sell a covered
product in violation of the agency’s energy-efficiency
standards or labeling requirements.
42 U.S.C.
§§ 6302(a), 6303. Once again, the DOE enforcement
procedures mirror the Federal Power Act’s
alternative-pathway scheme: the respondent can
choose agency adjudication or the two-stage pathway,
with the latter obligating DOE to institute a “de novo”
district-court action if the respondent does not pay the
assessment. Id. § 6303(d)(1)-(3).
DOE, Powerplant and Industrial Fuel Use
Act. The Powerplant and Industrial Fuel Use Act of
1978, as amended, 42 U.S.C. §§ 8301 et seq.,
authorizes DOE to seek civil penalties to enforce the
Act’s provisions concerning the alternate-fuel
capability of electric power plants. 7 See 42 U.S.C.
§§ 8411, 8433. Here again, the enforcement structure
mirrors the Federal Power Act’s alternative-pathway
scheme. See id. § 8433(d)(1)-(3).
Fish and Wildlife Service, Lacey Act. The
Lacey Act of 1900, as amended, authorizes the Fish
Although certain provisions of the Fuel Use Act have
been repealed, see Pub. L. No. 100-42, 101 Stat. 310 (1987), other
provisions remain in effect, along with the enforcement
structure. See, e.g., 42 U.S.C. § 8311; see also 24 Fed. Proc., L.
Ed. § 56:1070 (Feb. 2026 update).
7
11
and Wildlife Service (FWS) within the Department of
the Interior to seek civil penalties to enforce
prohibitions on trafficking of wildlife, fish, and plants.
16 U.S.C. § 3373. Under the current provisions, FWS
must provide the respondent with notice and a
hearing before assessing penalties. Id. § 3373(a)(4) &
(b). Post-assessment, FWS may still decrease the
penalty amount. Id. § 3373(a)(5). The respondent
may seek judicial review of the assessed penalty by
filing its own action. Id. § 3373(c). Even after that,
the respondent may still decline to pay, in which case
the Attorney General must “institute a civil action” in
“district court,” where “such court shall have
authority to review the violation and the assessment
of the civil penalty de novo.” Id.
Customs and Border Protection, Tariff Act of
1930, false-statement violations. Under Section
1592 of the Tariff Act of 1930, as amended, Customs
and Border Protection (CBP) is authorized to seek
civil penalties for making false statements in
importing goods. 19 U.S.C. § 1592(a)(1). 8 CBP must
provide the respondent with notice of the proposed
penalty and a hearing; afterward, CBP must issue a
“written penalty claim” and provide the respondent
with an opportunity to seek remission or mitigation of
the penalty. Id. § 1592(b)(1)-(2). The government
must seek the “recovery” of the penalty in the Court of
International Trade, in which “all issues, including
the amount of the penalty, shall be tried de novo.” Id.
§ 1592(e)(1).
Under 6 U.S.C. § 203(1), statutory functions previously
assigned to the Customs Service have been transferred to CBP.
8
12
CBP, Tariff Act, false drawback claims. The
Tariff Act also authorizes CBP to seek civil penalties
enforcing the Act’s prohibition on making false
drawback claims (i.e., false claims of entitlement to a
refund on duties for imported goods). 19 U.S.C.
§ 1593a(b). The procedures replicate those under 19
U.S.C. § 1592, including the requirement for the
agency to bring a “de novo” recovery action before the
Court of International Trade. Id. § 1593a(i).
Department of Health and Human Services,
Public Health Service Act. The Department of
Health and Human Services (HHS) is authorized to
seek civil penalties for violations of requirements
applicable to employers’ offerings of health
maintenance organization plans. See 42 U.S.C.
§ 300e-9(d). Following notice and a hearing, HHS
may assess penalties against knowing violators. Id.
§ 300e-9(d)(1)-(2). The Attorney General obtains the
assessed penalties by filing a district-court action,
where “the court shall, at the request of any party to
such action, hold a trial de novo on the assessment of
such civil penalty.” Id. § 300e-9(d)(3). 9
In addition to the list above, other statutes include
essentially the same two-stage scheme except that the
respondent is the one that files the post-assessment districtcourt action. That is true of the Department of Agriculture’s
authority to seek civil penalties against retailers that commit
fraud in accepting Supplemental Nutrition Assistance Program
benefits. See 7 U.S.C. § 2023(a)(13) & (a)(15). It is also true of
the Controlled Substances Act’s civil-penalty scheme for
possession offenses. See 21 U.S.C. § 844a(g). As discussed
further in the United States’ brief and below, the carriers fail to
establish that this distinction should make a constitutional
difference. See U.S. Br. 37-40, 42-43; see also infra at 25-26.
9
13
c. Unsurprisingly, Congress has settled on this
two-stage framework to promote fairness to
respondents in enforcement proceedings.
When
Congress originally designed the Lacey Act’s civilpenalty scheme, for instance, House legislative
counsel explained to lawmakers that “[c]ivil penalties
are traditionally assessed by the agency” with a
recovery suit to follow, and described this two-stage
procedure as “established” across other agencies.
Endangered Species: Hearings on S. 335, S. 671, & S.
1280 before the Subcomm. on Energy, Natural Res., &
the Env’t of the S. Comm. on Commerce, 91st Cong. 6364 (1969) (statement of David Finnegan). The Senate
added the specification that district-court review
would be “de novo” in order to “provide protection for
private persons who fear arbitrary action by the
Secretary [of Interior] in a penalty proceeding.” S.
Rep. No. 91-526, at 7 (1969); see also 115 Cong. Rec.
H11181 (daily ed. Nov. 20, 1969) (statement of Rep.
Dingell) (de novo review provision intended to “serve
as a check on arbitrary action by the Secretary”).
Available legislative history likewise confirms the
plain import of the provisions’ language: that
respondents may lawfully decline to pay assessed
penalties as a means to obtain trial-court review of the
agency’s determination.
•
The Senate Report for Communications Act
Section 504 explained that the “de novo”
district-court suit “would not be merely a
collection proceeding,” but rather would give
the respondent “an opportunity to contest . . .
the merits” of the FCC’s assessment decision. S.
Rep. No. 86-1857, at 10 (1960) (emphasis added).
14
•
In drafting what became Section 504, the
chairman of the Senate communications
subcommittee explained that “[the FCC] could
levy the fine, but the licensee could refuse to
pay it, and that is what we have been talking
about here: setting up some sort of procedure
whereby he could have his day in court.”
Proposed Amendments to FCC Act of 1934:
Hearing on S. 1898 before the Commc’ns
Subcomm. of the S. Comm. on Interstate &
Foreign Commerce, 86th Cong., 2d Sess. 90-91
(1960) (statement of Sen. Pastore) (emphasis
added); see also U.S. Br. 13.
•
The Senate Report accompanying the Tariff
Act’s enforcement provision explained that the
statute “provides procedural rules for [agency]
consideration of penalty cases” while also
“providing for a trial in the Federal district
courts on all issues if the matter is not resolved
administratively.” S. Rep. No. 95-778, at 3
(1978) (emphasis added).
•
The House Report accompanying the relevant
amendment to the Public Health Service Act
explained that “[i]n any civil action brought to
review [HHS’s] assessment of a civil penalty,”
“the district court is, at the request of any party
to the action, to hold a trial de novo on the
assessment.” H.R. Rep. No. 94-518, at 29
(1975) (emphasis added).
•
The Conference Report for the National Gas
Policy Act explains that respondents in such
proceedings “may obtain review of [FERC’s]
assessment” of penalties “through a trial de
15
novo in Federal district court.” H.R. Rep. No.
95-1752, at 121 (1978) (Conf. Rep.) (emphasis
added).
Nor was this understanding limited to members of
Congress. For instance, in attempting (unsuccessfully)
to convince lawmakers to change the Lacey Act’s
provision for de novo review of FWS civil-penalty
assessments, the Department of Justice complained
that under the existing procedures, “a person can
simply ignore the findings of [FWS], demand a new
trial in District Court and relitigate the issue.” Fish
& Wildlife Coordination Act: Hearings on H.R. 5604
Before the H. Subcomm. on Fisheries & Wildlife
Conservation & the Env’t, 96th Cong. 159 (Oct. 17,
1979) (statement of John L. Murphy and G. Kent
Edwards). In another example, Professor Louis Jaffe
described the FCC’s assessment of a penalty under
Section 504 as a “legally inconclusive adjudication.”
Louis L. Jaffe, Judicial Control of Administrative
Action 113 (1965). This Court reached the same
conclusion with respect to another then-extant statute
with a similar two-stage structure, the Federal Coal
Mine Health and Safety Act of 1969. See Kleppe v.
Delta Mining, Inc., 423 U.S. 403 (1976); 30 U.S.C.
§ 819(a) (1976). As the Court explained, “if [a mine]
operator wishes to contest the amount of the penalty
without a hearing, that can be done by refusing to pay
the penalty, thus invoking the right to a de novo trial
in the district court, with a jury if desired.” Delta
Mining, 423 U.S. at 409 (emphasis added).
d. Declaring “an Act of Congress” unconstitutional
is “the gravest and most delicate duty that this Court
is called on to perform.” Blodgett v. Holden, 275 U.S.
16
142, 147-48 (1927) (Holmes, J., concurring). Here, if
the Court accepts the carriers’ theory, it may not just
be one Act. When the dust settles, the number could
reach a dozen or more.
The consequences, moreover, may not be limited to
a mere shift in procedures going forward. If some or
all of the above agencies’ current statutory pathways
are found unconstitutional, that may leave them
without any valid statutory authority to seek civil
penalties at all, unless and until Congress steps in
and enacts new laws. This may be true of the FCC.
As the government has warned, the Communications
Act “does not authorize either the FCC or the
Department of Justice to seek monetary penalties in
court without an antecedent administrative
proceeding in which the Commission formally
determines that a regulated party has violated the
law.” AT&T Pet. 18; see also U.S. Br. 45-46. That may
also be true of FERC. Neither the United States (in
defending the FERC enforcement scheme) nor the
plaintiff in American Efficient have identified any
other way that FERC could obtain civil penalties
under the Federal Power Act. Cf. FERC v. Powhatan
Energy Fund, LLC, 949 F.3d 891, 898-99 (4th Cir.
2020) (“Congress plainly conditioned FERC’s right to
bring an action in federal district court on the
occurrence of a number of statutorily-mandated
events.”).
It is thus evident that the end game of the carriers’
Seventh Amendment challenge, and other challenges
like it, is not merely to force agencies to follow
different procedural routes. It is to kneecap agency
enforcement more fundamentally. See U.S. Br. 45-46
17
(explaining the importance and unique role of civil
penalties as an enforcement remedy).
The Court should decline the carriers’ invitation to
enable that result. The enforcement schemes listed
above are necessary to deter and remedy significant
harms to the public. In the FERC context, for
instance, the agency relies on civil-penalty actions to
safeguard market integrity, protect ratepayers,
ensure grid reliability, and address threats to the
Nation’s energy infrastructure. See FERC Office of
Enforcement, 2025 Report on Enforcement 5 (Nov. 20,
2025), https://perma.cc/2U2D-8D5L.
Similarly,
Congress gave DOE penalty authority to address
leaks of restricted information about nuclear weapons
in response to “lax management” that had “increased
risks to U.S. national security.” H.R. Rep. No. 106301, at 913 (1999) (Conf. Rep.); see also Procedural
Rules for the Assessment of Civil Penalties for
Classified Information Security Violations, 70 Fed.
Reg. 3599, 3600 (Jan. 26, 2005) (explaining that
contractors’ work involves “highly classified
information regarding atomic weapons and other
weapons of mass destruction” and that DOE “must
take all prudent steps to prevent enemies of this
nation from gaining access to work that could be used
to the detriment . . . of vital national security
interests”). Taking the respective agency’s civilpenalty authority off the table would inevitably
undermine those crucial statutory mandates.
II. The Carriers’ Policy Objections To The
Two-Stage Enforcement Structure Are
Meritless
a. Congress has had good reason to repeatedly
18
select the two-stage agency-enforcement structure.
To begin with, the congressional practice reflects
longstanding acceptance of the premise that “the
Seventh Amendment’s demands can be met . . . by
providing a de novo jury trial in an Article III court
after[]” some form of agency proceeding. Richard
Lorren Jolly, The Administrative State’s Jury
Problem, 98 Wash. L. Rev. 1187, 1187 (2023); see also
id. at 1257; U.S. Br. 33-36. In 1941, for example, the
Attorney General’s Committee on Administrative
Procedure advised the President and Congress that
where an agency adjudicates or assesses a penalty in
the first instance, “review de novo by a Federal district
court” would “resolve any doubts concerning the
constitutionality of the procedure.” Final Report of
the Attorney General’s Committee on Administrative
Procedure III, 147 (1941) (AG Comm. Report); see also
id. at 174-75 (similar).
A quarter century later, Professor Jaffe observed
that “when a person is the object of an administrative
order which will be enforced by” a money judgment,
“he is at some point entitled to a judicial test of
legality.” Jaffe, supra, at 384 (emphasis added). And
when this Court later heard Atlas Roofing Co. v.
Occupational Safety and Health Review Commission,
430 U.S. 442 (1977), both the challengers to the
administrative-enforcement scheme and the Chamber
of Commerce assured the Court that providing de
novo review after the agency proceeding would
address their constitutional concerns. See U.S. Br. 34
(citing briefs and oral argument); cf. Roger W. Kirst,
Administrative Penalties and the Civil Jury, 126 U.
Pa. L. Rev. 1281, 1340 (1978) (criticizing Atlas Roofing
19
but acknowledging that “enforcement by de novo civil
action in a . . . federal court” would “comply with the
seventh amendment”).
More recently, scholars have described this kind of
two-stage structure as a “right to remove” system of
administrative enforcement, in that the respondent
has a right to remove the action to an Article III trial
court. See Christopher J. Walker & David Zaring, The
Right to Remove in Agency Adjudication, 85 Ohio St.
L.J. 1, 3 (2024). Notably, Professors Walker and
Zaring include FERC’s Federal Power Act
enforcement scheme as a statute embodying a
constitutional right-to-remove structure, even though
(as with the FCC here) FERC is the entity that files
the district-court action. Id. at 19-20; see also id. at
20 (noting that the FERC scheme “has a historical
pedigree”). 10
To be sure, providing respondents in enforcement
proceedings with the option to seek a jury trial in
district court may be “more efficient and effective than
a rule that civil penalties . . . can only be brought in
federal court.” Walker & Zaring, supra, at 4. It is well
established that Congress may provide an alternative
dispute-resolution mechanism where a party may
waive an Article III adjudicator and a jury. See
Commodity Futures Trading Comm’n v. Schor, 478
U.S. 833, 848-49 (1986); Wellness Int’l Network, Ltd.
v. Sharif, 575 U.S. 665, 669 (2015); cf. Henderson’s
Distilled Spirits, 81 U.S. 44, 53 (1872) (noting that
Indeed, one of the carriers’ own amici appears to agree
with Professors Walker and Zaring that both the FERC and DOE
schemes are permissible, notwithstanding this feature. See IJ
Br. 22-23 & n.18.
10
20
although “the claimant was entitled to a trial by jury,”
the parties “waive[d] a jury and submitted the case to
the court upon an agreed statement of facts, as they
had a right to do”).
As one of the carriers’ amici acknowledges,
“[r]egulated parties may want to avoid Article III
courts for their own independent reasons,” including
because “agency proceedings may offer procedural
advantages.” IJ Br. 22; cf. Jaffe, supra, at 99
(observing that de novo trials may be “seldom sought”
when more efficient agency proceedings are
available). Indeed, one of the carriers themselves
previously told the D.C. Circuit that the
Communications Act’s option of paying and seeking
review in a court of appeals helps respondents avoid
“pointless delay and costs” when “the FCC’s factual
findings are not in dispute.” AT&T Br. at *15, *18,
AT&T Corp. v. FCC, No. 01-1485, 2002 WL 34244542
(D.C. Cir. Dec. 20, 2002).
b. Respondents also enjoy substantial benefits
under the two-stage framework. Most significantly,
those statutorily mandated procedures force the
agency to engage with the other side’s evidence and
arguments and show its hand before the parties
actually go to court (if they do). In both the FCC
scheme and the FERC scheme, for instance, the
agency is required to issue a charging document (a
“notice of apparent liability” for the FCC and a “notice
of proposed penalty” for FERC); provide the
respondent with an opportunity to respond to the
charges or ask for a lesser penalty; and afterward
issue a written order explaining what violations
21
occurred and what penalties are appropriate. 11 “Those
extra layers of procedure” before the agency decides to
pursue its charges in court, U.S. Br. 22, cannot
sensibly be viewed as a constitutional defect.
Indeed, the process leading up to the agency’s
assessment order is analogous to a target in a federal
investigation meeting with the government to
persuade it not to file an enforcement action. See
Gerald Lynch, Our Administrative System of Criminal
Justice, 66 Fordham L. Rev. 2117, 2126 (1998)
(drawing similar analogy). For instance, as any
experienced white-collar-defense attorney knows,
“[i]n modern corporate investigations, prosecutions
rarely proceed without pre-charging negotiations
between the U.S. Department of Justice and defense
counsel.” Scott Brady et al., White Collar Defense Do’s
and Don’ts For Meeting with DOJ 1 (June 18, 2021),
https://perma.cc/8JUR-ZN5A. Those efforts may be
aimed at learning more about the government’s case,
persuading it not to file charges, pushing back on the
sufficiency of the evidence, or arguing for a particular
disposition. Lynch, supra, at 2126.
Here, the two-stage framework compels an
enforcing agency to conduct that kind of process in
every case, to do so on-the-record, and to actually
reveal details of its factual and legal theories to the
respondent—all before filing a complaint in court. It
is not hard to see why formalizing that process is a
boon to respondents. In fact, scholars have advocated
for these administrative safeguards to be carried over
For FCC, see 47 U.S.C. § 503(b)(1) & (b)(4); 47 C.F.R.
§ 1.80(g). For FERC, see 16 U.S.C. § 823b(d)(1) & (d)(3); 18
C.F.R. §§ 385.1505-1506, 385.1509.
11
22
to the prosecution context. See Rachel E. Barkow,
Institutional Design and the Policing of Prosecutors:
Lessons from Administrative Law, 61 Stan. L. Rev.
869, 905 (2009).
In addition, the penalty-assessment process
requires the agency to proceed with appropriate
caution in enforcement actions and check its work.
Take the Federal Power Act’s two-stage scheme,
which is “responsive to the complicated nature of the
activities the statute regulates, namely the actions of
sophisticated traders in complex [energy] markets.”
Powhatan Energy, 949 F.3d at 904 (internal quotation
marks and citation omitted). FERC’s enforcement of
the Act’s market-manipulation rule, for instance,
involves careful parsing of technical financial
transactions in highly complex energy markets.
Ensuring that FERC “thoroughly vet[s] each alleged
instance of market manipulation before filing suit”
thus can be “of benefit to the regulated party.” Id. at
901. And because the resulting assessment order has
no determinative effect in a district court or before a
jury, it essentially gives the respondent a preview of
the agency’s case at trial with no strings attached. Cf.
Ex parte Peterson, 253 U.S. at 310 (concluding that
“[n]o incident of the jury trial is modified or taken
away” by a “preliminary, tentative hearing before [an]
auditor”).
The Seventh Amendment’s “aim is not to preserve
mere matters of form and procedure, but substance of
right.” Walker v. New Mexico & Southern Pac. R.R.,
165 U.S. 593, 596 (1897). Here, the right is preserved
because carriers cannot be made to pay a dime in legal
penalties until a jury in an Article III court finds
23
disputed facts supporting their liability. If that trial
does not take place, it is only because the agency
abandoned its enforcement effort or the carrier opted
to forgo that path.
c. The carriers nonetheless protest that an
agency’s penalty-assessment order has “real-world
impacts” even before a district court’s final judgment.
Carriers Br. 4 (citation omitted). But there can be no
meaningful dispute that a carrier may lawfully
decline to pay an assessed penalty. See U.S. Br. 1018. Were it otherwise, the provision for a de novo trial
would make little sense—why would Congress require
the respondent to violate the law to exercise a
statutorily conferred procedural right?
The carriers identify no way in which the assessed
penalty can be legally enforced other than in the
statutorily prescribed de novo action. Indeed, in both
the FCC and FERC contexts, an assessed penalty that
goes unpaid cannot even accrue interest until a court
enters final judgment. See, e.g., In re Amendment, 19
FCC Rcd. 6540, 6542 n.16 (2004) (FCC); see also 18
C.F.R. §§ 385.1509, 385.1511 (FERC). 12
The carriers accordingly fall back on an assertion
that “[i]n the real world, no business can afford to
thumb its nose at its principal regulator by defying an
order to pay.” Carriers Br. 50. Specifically, they
suggest that the FCC might hold a failure to pay
against that business, formally or informally, in
Even where an agency has not disclaimed the ability to
seek interest on unpaid assessed penalties, CUB is aware of no
authority holding that the availability of pre-judgment interest
creates a Seventh Amendment violation.
12
24
taking future regulatory action. Id. at 49. But a
similar argument could be made with respect to the
business’s failure to accept an agency’s post-notice
settlement offer—yet no one would claim that the
business was entitled to have a jury decide issues of
fact before the agency extends such a proposal. And
even if the agency considers the facts underlying an
assessment order in making other enforcement
decisions down the line, that is still not a Seventh
Amendment problem until a respondent is made to
pay a monetary award based on such findings. So long
as a jury trial is available at that point, the agency’s
earlier consideration of those findings is of no
moment.
The carriers also frequently refer to the
“reputational harm[]” they might suffer after the FCC
issues an assessment order but before a jury issues a
verdict. Carriers Br. I; see also id. at 4, 15, 19, 35. But
again, this argument proves too much. A risk of such
harm could arise following an agency’s issuance of an
notice of proposed penalty or even its initiation of an
investigation.
No one would contend that a
respondent has a right to a jury trial before either of
those things occur. 13 The same risk of reputational
harm could likewise follow from an agency proceeding
The carriers additionally argue (Br. 46) that they must
“at least consider” whether to disclose assessment orders in
securities filings. But the cited regulation requires reporting
certain “[a]dministrative or judicial proceedings” in which the
government is seeking “potential monetary sanctions.” 17 C.F.R.
§ 229.103(c)(3)(iii) (emphasis added). That language suggests
that any reporting obligation would be triggered by the initiation
of the penalty proceeding (i.e., by the FCC’s filing of a notice of
apparent liability), not by the assessment order per se.
13
25
finding wrongdoing but ordering a non-monetary
remedy, like disqualification or license revocation. Cf.
AG Comm. Report 33, 145-46 (characterizing license
revocation as more severe than a fine). Yet the law is
clear that the Seventh Amendment has no application
in proceedings seeking only equitable relief. See
Curtis v. Loether, 415 U.S. 189, 198 (1974); Parsons v.
Bedford, 28 U.S. (3 Pet.) 433, 447 (1830).
d. Finally, the carriers claim to fear agency
sandbagging. They note (Br. 34) that post-assessment
district-court actions are subject to a five-year statute
of limitations. See 28 U.S.C. § 2462. And they assert
that respondents may be stuck in a “waiting game,”
where they can only “hope” that the agency will follow
through and try to obtain the penalties it assesses.
Carriers Br. 37-38.
As an initial matter, a respondent that gets off the
hook because an agency abandons its enforcement
effort would more likely celebrate than rue its missed
opportunity to push the case to trial. Consistent with
that intuition, Congress has specifically allowed
agencies to grow more lenient after assessing
penalties; several statutes authorize agencies to drop
or lessen penalties before a court enters final
judgment. See, e.g., 16 U.S.C. § 823b(d)(4); 47 U.S.C.
§ 504(b). Neither the initial penalty assessment nor
the possibility of leniency afterward causes
respondents any cognizable harm. See supra at 23-24.
In any event, this Court has been clear that a
“delay in reaching [a desired] jury trial” is
constitutionally immaterial so long as that trial occurs
before final judgment on a legal cause of action. Ex
parte Peterson, 253 U.S. at 310. And the carriers have
26
provided no reason to believe that undue delays have
occurred or will occur under two-stage enforcement
schemes. Agencies are entitled to a presumption of
regularity. See FDA v. Wages & White Lion Invs.,
L.L.C., 604 U.S. 542, 577 (2025). As Judge Wilkinson
observed on behalf of the Fourth Circuit—in rejecting
a similar contention about FERC’s supposed incentive
to postpone filing recovery suits—there is no basis to
“assume” that agencies are “determined to delay the
expeditious prosecution” of actions that are “essential
to fulfilling [a] statutory mandate.”
Powhatan
Energy, 949 F.3d at 904. That is “especially true”
because “footdragging would tend to reduce the
[agency’s] chances of proving its case and collecting
monetary sanctions,” id. (citation omitted; brackets in
original); as with most lawsuits, the passage of time
makes it more likely that evidence becomes lost,
memories go stale, and witnesses disappear. There is
no basis to suspect that agencies will risk an
enforcement action’s ultimate success merely to
aggravate the respondent.
*
*
*
Precedent and logic foreclose the constitutional
claim in this case. The carriers had the option to
obtain a jury trial in an Article III court. And
Congress was well within its prerogative to rely on a
tried-and-true enforcement scheme that prioritizes
agency expertise, policy judgment, and deliberation
while preserving that constitutional safeguard.
27
CONCLUSION
The Court should reverse the judgment in No. 25406 and affirm the judgment in No. 25-567.
Respectfully submitted,
ALEXANDER L. TOM
EARTHJUSTICE
1 Sansome Street
Suite 1700
San Francisco, CA
94104
CAROLINE A. FLYNN
Counsel of Record
NICK LAWTON
EARTHJUSTICE
1250 Eye Street NW
Floor 4
Washington, DC 20001
(202) 797-4316
cflynn@earthjustice.org
Counsel for Amicus Curiae
March 27, 2026
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.