FCC v. Consumers’ Research (set to be argued on March 26) presents the Supreme Court with its latest chance to revitalize the nondelegation doctrine. The case centers on the multi-billion dollar universal service fund (USF) that, by statute, the FCC funds with fees from interstate telecom carriers to pay for various subsidy programs. The en banc Fifth Circuit sided with the challengers and held that the USF is unconstitutional, all but guaranteeing that the Supreme Court would hear this case. When it granted certiorari, however, the Court ordered briefing on a new question, “whether this case is moot in light of the challengers’ failure to seek preliminary relief before the 5th Circuit.”

In my view, there is an important Article III jurisdictional problem with this case—just not quite the one that the Court identified. Although the government challenged jurisdiction in earlier stages of this litigation, it now concedes that the case is not moot. So that the issue does not risk going entirely unnoticed, however, I wanted to sketch out my concerns here and explain why I think this case has had an Article III problem from the very start. In short, the challengers’ asserted injury is economic, but they have never asked for any relief that would effectively redress that harm.

Let me get a disclaimer out of the way. Before entering academia, I was appellate counsel for the FCC, and I worked on earlier stages of the Consumers’ Research litigation. And, yes, I continue to believe that the government is correct on the merits, both under existing nondelegation precedents and under any plausible originalist reformulation of the doctrine. But I’m not here to rehash arguments that the government has made; this discussion focuses only on an issue that the Supreme Court injected into this case well after I left the FCC.

To understand the Article III problem in this case, you first need to understand the USF’s basic mechanics. In the Telecommunications Act of 1996, Congress directed the FCC to develop “specific” and “explicit” mechanisms to advance universal service, the longstanding policy of ensuring affordable and efficient telecommunications service nationwide. To that end, the FCC designed various subsidy programs that, for example, offset costs for low-income phone service subscribers and for schools and libraries subscribing to broadband internet service. These programs are administered by the Universal Service Administrative Company (USAC), a private entity created at the FCC’s direction and subject to its oversight. To pay for these universal service mechanisms, Congress directed that interstate telecom carriers “shall contribute, on an equitable and nondiscriminatory basis,” to the USF.

The FCC enforces that contribution requirement through an administrative process that relies on ministerial assistance from USAC. Every fiscal quarter, the telecom carriers required to contribute money report to USAC their projected interstate and international telecom service revenues (the “contribution base”), and USAC projects the total cost of the universal service mechanisms. Those figures get reported to the FCC, and then it’s just a matter of some simple math to produce a “contribution factor,” the percentage of each contributing carrier’s projected revenue that must be paid to the USF to fully fund the support mechanisms on an “equitable and nondiscriminatory basis.”

Once the FCC approves a quarterly contribution factor, USAC uses that factor to prepare invoices telling the contributors how much they owe. Most contributors then recover the cost of this USF fee by passing it on to end users. (If you look at the service agreements for major telecom carriers like AT&T, T-Mobile, and Verizon, a quick Ctrl+F search will show that each requires consumers to agree to pay a “universal service” charge.) If a contributing carrier thinks that it has been wrongly charged, it can follow an administrative appeal process (called “pay-and-dispute”) that starts with USAC before proceeding to de novo review at the FCC, with judicial review available on the back end.

So, suppose you think that the USF is unconstitutional. How might you go about getting judicial review? The most straightforward option is to go to federal district court and to seek declaratory and injunctive relief against the United States prohibiting future enforcement of the authorizing statute, 47 U.S.C. § 254. Alternatively, if you are a contributing carrier with an obligation to pay into the USF directly, you have a second option: Object to an invoice from USAC on constitutional grounds, pay under protest, pursue an administrative appeal at the FCC, and then seek judicial review if the Commission still insists that you pay. Either option presents an Article III “case” because it redresses a classic pocketbook injury by preventing future collection efforts (the injunction) or generating a refund (the challenge to a specific payment).

The challengers in Consumers’ Research did neither of those things. Instead, they filed a petition for review under the Hobbs Act (a special jurisdiction-channeling statute) challenging the FCC’s approval of a single quarterly contribution factor—i.e., the order that tells USAC how to calculate the invoices that get sent out. Why does that matter? The Hobbs Act authorizes only a limited remedy; it confers on circuit courts “exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of” the FCC’s “final orders.” Because relief is limited to discrete orders, there is no general grant of jurisdiction to, for example, enjoin enforcement of a statute prospectively or to order other equitable relief like restitution. That limitation is essential to understanding the Article III problem in this case.

Blackletter law tells us that for something to be a “case” within Article III’s grant of judicial power, there needs to be an injury, traceability to the defendant’s challenged conduct, and a likelihood of redressability via judicial relief. The challengers in Consumers’ Research undeniably allege a qualifying injury: They contend that the universal service program costs them money that they otherwise would not have to pay, and that’s a classic pocketbook injury that counts for Article III’s purposes. From there, however, their case gets a lot harder to make.

At this point, it might be helpful to break the challengers into two groups. Most of the challengers are consumers who are injured only indirectly; their phone carriers pay into the USF and then pass the cost along as a charge on the consumers’ monthly bills. Only one challenger—a company called Cause Based Commerce—has an affirmative obligation under the statute to pay into the USF. In this specific case, these challengers are each complaining about a monetary injury that they suffered as a result of a contribution factor approved for the first quarter of 2022. That money is already out of their pockets. The consumer challengers can’t get it back in this litigation because their own phone carriers—not the government—took it from them. And Cause Based Commerce can’t get its money back because the APA does not waive sovereign immunity for “money damages,” nor does the Hobbs Act authorize any form of monetary relief. (The challengers quibble with this a bit in their merits brief, saying (at page 90) that the government argues “without any authority” that the review statute does not permit monetary claims, as if the statute’s plain language somehow wants for authority.)

The Fifth Circuit tried to sidestep this problem by invoking the “capable of repetition yet evading review” exception to mootness. Each contribution factor is in effect for only one fiscal quarter, which is too short to fully litigate its legality, and the FCC’s administrative framework makes it a near certainty that Cause Based Commerce will be ordered to pay again in future quarters. So, the Fifth Circuit reasoned that because the court could have invalidated the contribution factor’s approval on the date the petition for review was filed, there was a live controversy at the start that was not mooted by passage of time.

As I see it, there are at least two problems with the Fifth Circuit’s analysis.

First, the Fifth Circuit failed to appreciate the universal service administrative scheme. In the Fifth Circuit’s view, “vacatur of FCC’s approval of the proposed contribution factor would have prevented collection” of the universal service fee from Cause Based Commerce, which redresses the alleged injury. That is contestable. Invalidating the contribution factor might mean, under the FCC’s rules, that USAC could not ministerially “calculate the amount” of the invoice to send to Cause Based Commerce. But it would not obviously mean, for example, that the United States could not sue Cause Based Commerce to collect its fair share of the USF support costs. The reason is that Congress itself imposed that support obligation in 47 U.S.C. § 254(d), when it directed that every telecom carrier that provides interstate telecom services “shall contribute” to the program’s support on an equitable and nondiscriminatory basis—a legal obligation that exists regardless whether a ministerial invoice can go out the door. The real economic injury here is the ongoing accrual of monetary liability under the statute, and gumming up the invoicing process is insufficient to excuse that liability.

I suspect that the Fifth Circuit’s contrary conclusion was driven at least in part by conflating the functional effect of a precedential opinion and the formal effect of a judgment. But keeping those two things straight is critical, as some of the Fifth Circuit’s recent reversals at the Supreme Court underscore. “It is a federal court’s judgment, not its opinion, that remedies an injury; thus it is the judgment, not the opinion, that demonstrates redressability.” Haaland v. Brackeen, 599 U.S. 255, 294 (2023). A judgment in the challengers’ favor that “could amount to no more than a declaration that the statutory provision they attack is unconstitutional, i.e., a declaratory judgment[, …] is the very kind of relief that cannot alone supply jurisdiction otherwise absent.” California v. Texas, 593 U.S. 659, 673 (2021). Those admonishments seem quite apt to me on the facts of Consumers’ Research. By vacating the contribution factor, the only obligation on the FCC would be not to enforce that one specific order playing one small role in a much larger statutory and administrative scheme. To be sure, if the legal basis for invalidating the contribution factor were that the statute authorizing its issuance is unlawful, then the federal government would likely acquiesce and stop enforcing the statute. But that would be pragmatic, not legally obligatory; there is no injunction against future enforcement, as the Hobbs Act authorizes no such remedy in granting jurisdiction.

To see this distinction’s importance, consider what could have happened in a world where the Supreme Court did not take up this case. Suppose that, in reliance on the Fifth Circuit’s opinion, the FCC had stopped enforcing the universal service statute altogether, halting all collections and disbursements on the ground that the law is unconstitutional. A beneficiary of these subsidy programs—all of which remain on the books and not enjoined—could have challenged that action by filing its own lawsuit in one of the two circuits that upheld the universal service statute against an identical nondelegation attack. At that point, an order might issue directing the FCC to resume enforcement on the ground that the FCC’s acquiescence to the Fifth Circuit was legally erroneous and contrary to what the statute commands. At that point, the FCC would be obligated to continue ensuring that every covered telecom carrier (including Cause Based Commerce) paid into the USF on an equitable and nondiscriminatory basis. That order would not subject the FCC to contradictory judgments because the Fifth Circuit’s judgment was, as a formal matter, limited to setting aside a single order to USAC about how to prepare invoices for a single, long-past fiscal quarter. Thus, Cause Based Commerce cannot really resolve its injury (an ongoing obligation to pay) without a remedy that actually does something about the statute’s current and future enforcement. The Hobbs Act just doesn’t provide that when authorizing review of the ministerial order challenged in this lawsuit.

This ties into the second problem with the Fifth Circuit’s reasoning: The capable of repetition yet evading review exception to mootness is not an obvious fit for the Hobbs Act’s special petition for review framework. This exception to mootness has its origins in Southern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911), an equity case challenging an ICC cease and desist order. Although the ICC’s order expired by its terms before the case was resolved on appeal, the Court held that mootness doctrine would not allow “short term orders, capable of repetition, yet evading review,” to leave injured parties “without a chance of redress.” In this case, though, the challengers have ample means to obtain meaningful redress, if only they would follow the correct procedural avenues.

As noted above, if Cause Based Commerce had truly wanted to stamp out its ongoing legal obligation to support the USF, it could have availed itself of USAC’s pay-and-dispute policy every time an invoice came due and/or sought prospective relief against future enforcement of the underlying statute in district court in a suit for declaratory and injunctive relief against the United States. The consumer challengers, too, could perhaps have had standing to seek this type of relief in district court. (The consumers would face a potential traceability problem because their harms are only indirect, but I won’t address that here.) Alternatively, they could sue their phone carriers for a declaration that the universal service fee is unlawful and therefore cannot be passed on to them in the future under the terms of their service agreements, in which case the Department of Justice would likely intervene to defend the statute’s legality. These are perfectly normal and traditional ways of litigating underlying legal questions, and they are just as capable of eventually generating an opinion with nationwide precedential force that would functionally result in the statute’s non-enforcement. If what the challengers really want is an opinion saying “the USF is unconstitutional,” they need to get it from something that’s a real case—not a narrow, contrived challenge to a ministerial order’s validity.

Deploying the “capable of repetition yet evading review” exception in this case—when procedurally sound alternatives exist—strikes me as an undue extension of the doctrine. This mootness exception grew up in equity, a system of remedies that is a backstop for when there is no other adequate way to get relief. It makes sense why we don’t want mootness to swallow someone’s last hope for judicial redress in equity. But that’s just not the case here. In fact, I had a research assistant help me try to pull every administrative law case in which the Supreme Court used this mootness exception, and everything we found arose from cases that sought injunctive relief in district court, not pre-enforcement petitions for review in circuit court. The idea that this exception has any place in special statutory review schemes like the Hobbs Act seems somewhat contestable, at least in situations (like here) when these schemes are not the exclusive means of getting judicial review.

The Supreme Court seems to get that something about this case smells procedurally fishy. In ordering briefing on whether the case is moot because the challengers did not seek preliminary relief, the Court seems to be gesturing at the line of circuit court cases holding that “the ‘capable of repetition, yet evading review’ exception” does not apply “when it is the plaintiff’s procedural missteps that prevent judicial review.” Protestant Mem’l Med. Ctr., Inc. v. Maram, 471 F.3d 724, 731 (7th Cir. 2006). But the procedural misstep here was not a failure to seek preliminary relief; it was the decision to raise this issue as a Hobbs Act challenge to an order that is not the legally relevant source of an injury. There was never any real relief to be had, preliminary or final. No doubt, many might welcome a final answer to the important questions about the USF’s future and the scope of the nondelegation doctrine. But there were important questions to be answered in cases like California v. Texas, Haaland v. Brackeen, and Murthy v. Missouri, too, and the Court still kicked those plaintiffs to the curb. If the Court sees an Article III problem, it has a duty to add Consumers’ Research to the pile—but hopefully for the right doctrinal reason.

Adam Crews is an Assistant Professor of Law at Rutgers Law School. He previously served as appellate counsel at the Federal Communications Commission.