During oral arguments for Kennedy v. Braidwood Management, Inc., Supreme Court Justice Ketanji Brown Jackson questioned an attorney about unreviewable discretion.
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00:00Under the government's interpretation of subsection A-6, the task force members are still principal officers
00:06because they have unreviewable discretion when deciding not to recommend A or B ratings on a particular preventive care service
00:13or when they decide to withdraw a previous A or B rating that they have conferred prior to their decision to withdraw.
00:20That means they have final decision-making authority that's not subject to direction and supervision.
00:25I'm sorry, I don't understand that. Can you help?
00:28Yes.
00:28What do you mean? They have unreviewable authority?
00:32First of all, I thought there was an interval period that the statute imposed.
00:38That's right.
00:38What function is that if not to have some consideration of what these recommendations are?
00:47That's one question.
00:48And then another is what do you mean about them having unreviewable discretion not to make a recommendation?
00:56So the test for principal officer status is whether the officer in question is directed and supervised in his decision-making.
01:04On the government's reading of section 299B-4A-6, if the court were to adopt that view,
01:10the secretary would have the ability to overrule task force decisions to confer A or B ratings on preventive care.
01:17But the secretary would not have any authority to overrule the task force.
01:22But why is that? Why is that? I mean, the year they make a recommendation and they have rejected other recommendations or other options.
01:32The secretary puts into place the interval period, reviews what they did and didn't do, and says, I'm going to remove you as a result.
01:42You know, I don't like what you did or didn't do, and you're out.
01:45That doesn't make them into inferior officers, and Arthrex holds as much,
01:48because Arthrex acknowledges situations in which a principal officer can, through informal means,
01:54influence the decision-making of a subordinate official.
01:57And Arthrex says that's still not good enough.
01:59There has to be a formal authority to review the decisions that are being made.
02:03But what about all the adjudicatory cases?
02:06Mr. Moupon says this is more like Edmonds.
02:08This is independent in the sense that people are making recommendations using their own best judgment,
02:17but they're still at will removable, and we found that is okay.
02:21But they also have all their decisions subject to review by a principal officer.
02:25What this court said in Edmonds was that the reason those judges were deemed inferior
02:29was because they could not issue any final decision on behalf of the United States
02:34without being allowed to do so by a principal officer.
02:37Mr. Moupon, I take it.