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FEF v. PCAOB: Plaintiffs Seek Reconsideration (In a Non-Gender Neutral Manner)

By J. Robert Brown

The DC Circuit consists of 13 judges, three of whom are women.  The plaintiffs in this case, however, have trouble recognizing this.  At oral argument, there was a small repartee over the improper use of the male pronoun by plaintiff. 

With that in mind, we were a bit surprised to see the motion for reconsideration written without regard to gender neutrality.  This was particularly (but not always) true with respect to references to the president.  Thus, according to the brief:

• Here, the President has been "completely stripped" of his removal power.  Brief, at 4.
• the President has no power to direct the SEC to exercise its discretion to remove a Board member, any more than he could direct the SEC to follow his wishes . . . Brief, at 5. 
• The President's ability to "appoint" does not confer influence over how independent agencies exercise their discretionary power . . . because it is not coupled with the power to remove for failure to follow his policy wishes.  Brief, at 6 n. 3 
• Congress specifically denied the President this power by stripping the Chairman of his heretofore exclusive power to appoint and remove subordinates . . .    Brief, at 6 n. 3 
• "Equally important, even if the President could totally control the SEC through his indirect influence, that still would not enable him to exert any policy influence over Board members who were executing the law in a way he viewed as destructive . . . Brief, at p. 7
• Even assuming arguendo that enhanced SEC control over the board could somehow ameliorate stripping the President of his Article II power, Brief, at 10
• and the President is powerless to switch that power to an agency over which he exercises sufficient control.
• An executive official is an inferior officer only if his work is . . . Brief, at 12.
• Where, as here, an officer cannot be removed for purising policies at odds with the agency's desired policies, then he is not subject to . . . 

We didn't bother including the non-neutral references that were contained in quotes although careful drafting could elminate these as well.  Now, one might argue that it is acceptable to speak of the president using only the male pro-noun since there have only been male presidents.  First, there were plenty of other non-gender neutral references that didn't involve the president.  Second, the fact that presidents have always been male will change (as it could easily have in this election cycle).   Finally, the term president is generic.  When referring to a generic office, gender neutrality is always preferred.   

We should note out of a sense of completeness that, other than some quotes from Morrison, Plaintiffs did speak in a gender neutral fashion once.   As the brief noted: 

• First, the SEC is permitted to remove a PCAOB member only if it finds, after a hearing on the record, that the member willfully violated the Act or Board rules, willfully abused his or her authority, or unreasonably failed to enforce compliance with the Act

In other words, in one instance, for members of the PCAOB, the brief speaks in a gender neutral manner.   Surely it would have been possible to do the same throughout the brief.  And, its a little surprising that a dean of a law school would sign off on a brief written in this fashion, where 48% of his students in the 2008 entering class are women.

Full post as published by The Race to the Bottom on September 24, 2008 (boomark / email).