This Friday, the Supreme Court will hear oral argument in a set of cases challenging the Occupational Safety and Health Administration’s decision to issue an “emergency temporary standard” (“ETS”) requiring, with some exceptions, either mandatory COVID-19 vaccination or masking and testing by employers with 100 or more employees. The ETS Litigation presents significant questions of statutory interpretation and administrative law. I won’t address the issues at the heart of the cases in this blog post, but rather an interesting argument related to the Supreme Court’s appellate jurisdiction advanced on pages 85-86 of the Solicitor General’s brief. While that issue may not play a significant role in this week’s oral argument, it’s of interest to me—and maybe, just maybe, it might be of interest to a handful of readers of this blog.

In a nutshell, the Solicitor General’s argument concerns how Marbury v. Madison applies to Supreme Court consideration of agency action reviewed before the judgment of a lower court of appeals. The issue lies at the junction of Article III, the practice of certiorari before judgment, the appropriate standard of review, and administrative law.

Background

Article III of the Constitution describes the universe of cases over which the Supreme Court has “original Jurisdiction” and specifies that “[i]n all [ ] other Cases” the Court “shall have appellate Jurisdiction.” In Marbury v. Madison, the Court famously held that it could exercise “original jurisdiction” only over the cases described in Article III and “appellate jurisdiction” only to “revise[] and correct[] the proceedings in a cause already instituted.”

In the context of administrative law, this language from Marbury raises the question of how to conceptualize the Court’s act of revising “a cause already instituted” when it reviews an agency’s adjudicative functions. The conventional wisdom—expressed by Louis Jaffe in 1965—is that, in administrative-review cases, the “first reviewing [Article III] court is a court of ‘original’ jurisdiction” for constitutional purposes, because “[i]t is the first court exercising ‘judicial power’ in the strict ‘Article III’ sense.” Louis L. Jaffe, Judicial Control of Administrative Action 263 n.5 (1965). As a result, Jaffe explained, “it would appear that the Supreme Court of the United States cannot be made the first reviewing court” of an administrative agency—like OSHA—because, under Marbury, the Court “can exercise only such original jurisdiction as the Constitution has conferred upon it.” Id.

More recently, in Ortiz v. United States, the Court held (erroneously, in my view) that it could exercise appellate jurisdiction directly from one executive branch entity, the Court of Appeals for the Armed Forces, because of the historical pedigree of the kinds of cases adjudicated by the CAAF. But in doing so, the Court claimed that its reasoning said “nothing about whether [the Court] could exercise appellate jurisdiction over cases from other adjudicative bodies in the Executive Branch, including those in administrative agencies.” (Full disclosure: I played a role in the Ortiz litigation.) The question how Marbury might apply to the Court’s review of administrative agencies thus remains open.

The ETS Litigation and the Solicitor General’s Brief

All of the foregoing may seem far removed from litigation over vaccine requirements. And indeed, in the ETS Litigation, the parties challenging OSHA’s action have not claimed a right to appeal the agency’s decision directly to the Supreme Court, nor has Congress granted such a right to appeal OSHA decisions in express language. Moreover, it would have made little sense for Congress to have created such a right. Even if one were inclined to disagree with Professor Jaffe—and to embrace the view the Supreme Court could directly review an agency’s adjudicative functions—OSHA’s issuance of the ETS does not seem to qualify as “adjudicatory” under any sense of the word.

The ETS Litigation implicates Marbury in a somewhat more roundabout way. Congress has authorized “adversely affected” persons to challenge an ETS by filing a petition for review in a court of appeals. See 29 U.S.C. § 655(f). The judicial proceedings in the ETS Litigation, in other words, were not initiated in a federal district court. Instead, the challengers filed petitions for review in every regional court of appeals, one of which (the Fifth Circuit) temporarily stayed enforcement of the ETS pending judicial review. Under 28 U.S.C. § 2112, the various petitions were transferred to, and consolidated in, the Sixth Circuit, which denied initial en banc review and dissolved the Fifth Circuit’s stay.

The challengers then asked the Supreme Court to enjoin the government from enforcing the ETS pending review. In passing, several of the challengers also suggested that the Court could construe the emergency relief applications as petitions for certiorari before judgment and to consider the petitions for review of the ETS in the first instance. See NFIB Appl. 36; Ohio Appl. 35-36. Those requests invoked 28 U.S.C. § 1254(1), which authorizes the Supreme Court to review cases from the courts of appeals “before or after rendition of judgment or decree.” The practice of “certiorari before judgment” can be traced at least as far back as the Court’s interpretation of the Evarts Act of 1891, though it was first codified some decades later in the Judges’ Act of 1925. It permits the Court, on a petition for certiorari, to resolve the merits of a case any time after a case is filed with, and before it is resolved by, a court of appeals.

Here is where Marbury comes into the picture: In her brief (at page 85), the Solicitor General contends that, under Marbury, “there is a serious question whether this Court would have jurisdiction” to “treat [the] applications as petitions for certiorari before judgment to address the petitions for review of the Standard in the first instance.” The Solicitor General acknowledges that the Court exercises appellate jurisdiction in an “ordinary” case of certiorari before judgment, “because the district court has entered an order amenable to appeal.” But in certiorari-before-judgment cases involving petitions for review from administrative agencies to courts of appeals “no court has rendered a ruling” before the Supreme Court’s consideration. Echoing Louis Jaffe, the Solicitor General argues that in such cases “the court of appeals [would be] exercising original jurisdiction to address those petitions in the first instance.”

Put slightly differently, I understand the Solicitor General to be conceding that the Court has jurisdiction to address the applications for emergency relief in the ETS Litigation, because the Sixth Circuit exercised “original jurisdiction” by previously considering the challengers’ applications for emergency relief—thereby rendering the Supreme Court’s jurisdiction “appellate” under Article III. But according to the Solicitor General, because the Sixth Circuit did not proceed to resolve the case, the Court’s use of the “certiorari before judgment” mechanism might improperly allow it to exercise “original jurisdiction” over the merits. See id. at 86 (referring to the “absence of any judicial order or judgment disposing of the petitions for review of the Standard that could in turn be reviewed by this Court”).

Certiorari Before Judgment and Supreme Court Jurisdiction

Several treatises (and a couple of the Court’s cases) have acknowledged, but left unresolved, the question whether the Court may grant certiorari before judgment under these kinds of circumstances.

In their 1936 treatise on the Supreme Court’s jurisdiction, Reynolds Robertson and Francis Kirkham observed that “[i]t does not appear that the point has yet been presented whether the Supreme Court has jurisdiction to issue certiorari to a Circuit Court of Appeals before its judgment, where the case does not originate in a District Court but before an administrative tribunal.” Reynolds Robertson & Francis R. Kirkham, Jurisdiction of the Supreme Court of the United States 204-05 n.41 (1936). “Would such an application,” they asked, “invoke the appellate jurisdiction of the Supreme Court?” Id.; cf. id. at 258-59 (“[W]here the order of the Board or Commission is entered pursuant to administrative rather than judicial powers, and the proceeding in the Circuit Court of Appeals can not be considered as amounting, in effect, to an appeal from a judicial determination, the argument is open that, although questions of law may be certified by the Circuit Court of Appeals, the Supreme Court may not, consistently with constitutional limitations, order up the whole record and cause.”).

Similarly, the “Stern & Gressman” treatise notes that “[a] possible exception to the Court’s power to issue a writ of certiorari before judgment is the class of cases coming to the courts of appeals directly from administrative agencies.” Eugene Gressman et al., Supreme Court Practice § 2.4 (9th ed. 2007). In such cases, the treatise observes, “it could be said that the Supreme Court, by injecting itself into the case prior to any judicial action by a lower court, would be exercising original jurisdiction outside the constitutional pattern.” The authors of the treatise then proceed to discuss several cases where the issue was raised before the Court, but left unresolved. See id. (citing Radio Television News Directors Ass’n v. United States, 390 U.S. 922 (1968), and Federal Power Comm’n v. Louisiana Power & Light Co., 406 U.S. 621 (1972)).

I am aware of a handful of cases that have confronted similar issues in the analogous context of certified questions from lower courts. (If you are aware of others, please do let me know.) To take a good example, in Wheeler Lumber Bridge & Supply Co. v. United States, 281 U.S. 572 (1930), the Court addressed a certified question from the Court of Claims. The Court explained that it could not entertain “a certification by [the Court of Claims] which embraces the whole case,” in part because “to accept such a certification and proceed to a determination thereon, in advance of a decision by [the Court of Claims], would be an exercise of original jurisdiction by this Court contrary to the constitutional provision which prescribes that its jurisdiction shall be appellate in all cases other than” those specified in Article III. Id. at 576; see also White v. Turk, 37 U.S. 238, 239 (1838) (reasoning, under the certified question provision for circuit courts, that if the Court “were to decide” “the whole cause,” “it would, in effect, be the exercise of original, rather than appellate jurisdiction”), and related cases such as Webster v. Cooper, 51 U.S. 54, 55 (1850); United States v. Perrin, 131 U.S. 55, 58 (1889); and Baltimore & Ohio R.R. Co. v. ICC, 215 U.S. 216, 224 (1909); cf. Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716, 728-29 (1929); United States v. Rice, 327 U.S. 742, 747 (1946).

Some Final Thoughts

Consider, again, the Solicitor General’s argument in the ETS Litigation in light of these precedents. The Solicitor General’s position distinguishes between the Court’s consideration of emergency relief (which is properly “appellate,” according to the government) and its consideration of certiorari before judgment (which might not be, again according to the government). The position thus draws a fine line between the issues and type of relief specifically addressed by a lower court and other, closely analogous issues that the court of appeals has yet to address. A case like Wheeler Lumber Bridge might be read to provide some support for this approach, though one might be able to claim that, in this instance, the difference between emergency relief and the merits is vanishingly thin.

Lastly, one might wonder why the distinction between emergency relief and certiorari before judgment matters. Here’s a possible reason: It’s possible that the standard of review for the two is different, and it’s possible that the standard will be relevant to the disposition of the applications. The Solicitor General argues (at page 16 & n.3) that the applications are not properly styled as requests for “stays,” but rather for “injunctions” that “seek[] judicial intervention withheld by the lower courts.” According to the Solicitor General, a request for an injunction “‘demands a significantly higher justification’ than a request for a stay.” Id. (quoting Respect Maine PAC v. McKee, 562 U.S. 996, 996 (2010)). Without resolving the “stay”-vs-“injunction” question—which is outside the scope of this blog post—I will simply note that, if a higher standard for an injunction applies to the applications for emergency relief, then it might matter whether those applications could be restyled as requests for certiorari before judgment. And that would lead the Court to confront the analysis that I have laid out above.

Aditya Bamzai is a professor at the University of Virginia School of Law.