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2009
No.
08-~6CE~ OF THE ~L~RK
IN THE
~u~eme ~eut’t eg t~e i~tnite~ ~t~te~
FREE ENTERPRISE FUND AND
BECKSTEAD AND WATTS,
LLP,
Petitioners,
V.
PUBLIC COMPANY ACCOUNTING OVERSIGHT BOARDAND UNITED STATES OF AMERICA,
Respondents.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the District of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
KENNETH W. STARR
24569 Via De Casa
Malibu, CA 90265
VIET D. DINH
BANCROFT ASSOCIATES
PLLC
1919 M Street, N.W.
Suite No. 470Washington, DC 20036
January 5, 2009
MICHAEL A. CARVIN
Counsel o£Record
NOEL J. FRANCISCOCHRISTIAN G. VERGONISJONES DAY
51 Louisiana Avenue, N.W.
Washington, DC 20001
(202) 879-3939
Counsel for Petitioners
[Adoh’tional counsel listed on h~’de ~ront corer]
WlLSON-EPES PRINTING
CO., INC. - (202) 789-0096 - WASHINGTON, D. C.
20002
 
¯ .SAM KAZMAN
HANS BADERCOMPETITIVE
ENTERPRISE INSTITUTE
1001 Connecticut
Avenue, N.W., Ste. 1250
Washington, DC 20036
 
QUESTIONS PRESENTED
1. Whether the Sarbanes-Oxley Act of 2002
violates the Constitution’s separation of powers by
vesting members of the Public Company Accounting
Oversight Board ("PCAOB") with far-reachingexecutive power while completely stripping the
President of all authority to appoint or remove those
members or otherwise supervise or control their
exercise of that power, or whether, as the court of
appeals held, the Act is constitutional because
Congress can restrict the President’s removal
authority in any way it "deems best for the public
interest."
2. Whether the court of appeals erred in holding
that, under the Appointments Clause, PCAOB
members are "inferior officers" directed andsupervised by the Securities and Exchange
Commission ("SEC"), where the SEC lacks any
authority to supervise those members personally, to
remove the members for any policy-related reason or
to influence the members’ key investigative functions,
merely because the SEC may review some of the
members’ work product.
3. If PCAOB members are inferior officers,
whether the Act’s provision for their appointment by
the SEC violates the Appointments Clause either
because the SEC is not a "Department" under
Fre~vtag v. Commissioner,
501 U.S. 868 (1991), or
because the five commissioners, acting collectively,
are not the "Head" of the SEC.
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