Introduction

This published Fourth Circuit decision addresses a recurrent and consequential question at the intersection of constitutional structure and administrative practice: can a Senate-confirmed principal officer’s ratification validate a regulation that was initially signed and published by a non–Senate-confirmed official, if the initial signature arguably violated the Appointments Clause? The court answers yes, grounding its holding in foundational common-law agency principles and clarifying that such ratification is not the sort of retroactive rulemaking disfavored by Bowen v. Georgetown University Hospital.

The dispute arises from the National Marine Fisheries Service’s “Approach Rule” protecting Hawaiian spinner dolphins by prohibiting persons from approaching within 50 yards of the dolphins. Plaintiffs—whose livelihoods included dolphin-guided therapy, dolphin swims, and ocean photography—challenged the rule as unconstitutional because it was signed for publication by a Deputy Assistant Administrator who was not a Senate-confirmed principal officer. After suit was filed, the NOAA Administrator, Dr. Richard Spinrad—a Senate-confirmed principal officer—issued a written ratification, stating he independently evaluated and approved the rule. The district court granted summary judgment to the government, holding the ratification cured any constitutional defect. The Fourth Circuit affirmed.

The opinion’s significance lies in its explicit adoption of ordinary agency-law ratification as a constitutional fix in the rulemaking context, its careful taxonomy of principal, inferior, and non-officer roles, and its rejection of a retroactivity objection to ratification. Together, these holdings provide a practical blueprint for agencies and litigants facing Appointments Clause challenges to rule promulgation.

Summary of the Opinion

• The Appointments Clause distinguishes principal officers (requiring presidential nomination and Senate confirmation) from inferior officers and non-officers (employees). Only officers may exercise “significant authority pursuant to the laws of the United States.”
• Without deciding whether the initial signatory (a Deputy Assistant Administrator) improperly exercised such authority, the court holds that the NOAA Administrator’s subsequent ratification validly cured any Appointments Clause defect. Ratification is a well-settled agency-law doctrine that applies within the Executive Branch absent statutory bar.
• Ratification was valid because:
  • The ratifier (Spinrad) had authority to promulgate the rule both at the time of the initial signing and at ratification;
  • The initial signer purported to act on Spinrad’s behalf within an established chain of delegations;
  • Spinrad affirmatively manifested approval after independently evaluating the rule and knowing its material facts; and
  • The signed act—signing material for publication—was a delegable, ministerial function not requiring personal performance by the principal officer.
• Ratification here is not an impermissible retroactive rulemaking under Bowen. It does not impose new liabilities for past conduct; instead, it validates the rule as if it had been authorized originally by the proper principal officer.
• The court affirms summary judgment, aligning with D.C. Circuit precedent (Jooce v. FDA) and distinguishing Lucia v. SEC, which dealt with “ratifying” officer status rather than ratifying a specific act.

Analysis

Precedents and Authorities Cited, and Their Role

• United States v. Arthrex, Inc., 594 U.S. 1 (2021): Used to reiterate that ultimate executive responsibility resides in the President, while acknowledging the need for subordinate officers. Frames why appointments and delegations matter under Article II.
• Kennedy v. Braidwood Management Inc., 145 S. Ct. 2427 (2025): Cited for the principle that only officers (not employees) may exercise “significant authority,” and for the general test distinguishing inferior from principal officers (extent of supervision and control).
• Morrison v. Olson, 487 U.S. 654 (1988): Supplies the familiar terminology of “principal” vs. “inferior” officers.
• Restatement (Second) of Agency (1958), §§ 1, 7–12, 17, 18, 78, 82–91: Provides the backbone of the ratification analysis—defining affirmance, timing, knowledge of material facts, “purporting to act” on behalf of the principal, delegability, and equitable limits on ratification.
• FEC v. NRA Political Victory Fund, 513 U.S. 88 (1994): Establishes that ratification questions within the Executive Branch are “presumptively governed by principles of agency law,” and that ratification fails if the principal could not have lawfully performed the act at the time of ratification (a timing limit the Fourth Circuit finds satisfied here).
• Braidwood Management (2025): The Court accepted ratification and reappointment to rectify appointment irregularities, supporting the availability of ratification as a cure for Appointments Clause problems in practice.
• Jooce v. FDA, 981 F.3d 26 (D.C. Cir. 2020): Key parallel where a non-officer signed a rule deemed later ratified by properly appointed FDA Commissioners. The Fourth Circuit notes its alignment with this reasoning.
• United States v. Heinszen, 206 U.S. 370 (1907) and Chuoco Tiaco v. Forbes, 228 U.S. 549 (1913): Early Supreme Court ratification cases explaining that ratification is not retroactive legislation when the sovereign could have authorized the act originally; filing suit does not freeze rights to preclude ratification.
• Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 (1988) and Landgraf v. USI Film Products, 511 U.S. 244 (1994): Supply the anti-retroactivity principle, which the court distinguishes; ratification does not impose new burdens for past conduct, unlike retroactive legislative rulemaking.
• House v. Southern Stevedoring Co., 703 F.2d 87 (4th Cir. 1983) and United States v. Mango, 199 F.3d 85 (2d Cir. 1999): Support that administrators may delegate absent express prohibition—reinforcing the legitimacy of signature delegations within the Department of Commerce/NOAA structure.
• Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007): Cited for the “logical outgrowth” principle in notice-and-comment rulemaking, underscoring that public process was intact and unaffected by later ratification.
• Walker v. City of Birmingham, 388 U.S. 307 (1967): Invoked to emphasize that obligations to obey duly promulgated rules exist notwithstanding pending legal challenges to their validity.

Governing Legal Framework and Reasoning

The court proceeds in three steps: (1) define the relevant constitutional categories under the Appointments Clause; (2) import and apply ordinary agency-law ratification principles within the Executive Branch; and (3) reject the retroactivity objection.

1. Appointments Clause taxonomy. The Appointments Clause distinguishes between principal officers (Senate-confirmed, accountable to both political branches), inferior officers (whose appointment Congress may vest in the President alone, courts, or department heads), and non-officers (employees). Only officers may wield “significant authority.” The parties disputed whether the initial signatory (a Deputy Assistant Administrator) fell into a permissible category to sign for publication. The Fourth Circuit sidestepped this merits dispute because the principal officer (NOAA Administrator) ratified the act.
2. Agency-law ratification in the Executive Branch. The court treats agency ratification as fully applicable to executive action unless a statute displaces it. It finds no statute barring ratification of regulatory signing and, in fact, notes Congress has elsewhere specified when ratification is unavailable (e.g., Federal Vacancies Reform Act, 5 U.S.C. § 3348), implying its availability otherwise. The court emphasizes:
   • Affirmance: A principal must manifest approval of a prior unauthorized act, knowing material facts (§§ 83, 91). Spinrad expressly did so, stating he independently evaluated and approved the Approach Rule.
   • Purported agency: The agent must purport to act on the principal’s behalf (§ 85). The signature chain (Secretary → NOAA Administrator → Assistant Administrator → Deputy Assistant Administrator) and internal delegations showed the signer purported to act for the Administrator.
   • Timing authority: The principal must have had the power to authorize the act both at the time of the original act and at ratification (§ 84). The court found Spinrad had the statutory and delegated authority under the Marine Mammal Protection Act (MMPA) at both times.
   • Delegability/personal performance: The principal can ratify only those acts that could have been delegated and do not require personal performance (§§ 17, 18, 78). The court deemed signing for publication a ministerial, non-discretionary function that can be delegated to employees and thus ratified.
   • Equitable limits: Ratification cannot upset crystallized rights, occur after withdrawal from the transaction, or work inequity (§§ 88–90). Plaintiffs’ filing suit did not crystallize rights or bar ratification, consistent with Heinszen and Jooce; nor did ratification deprive anyone of fair notice or settled expectations because the public had already received notice and comment.
   The court also grounds delegability in positive law: 3 U.S.C. § 301 (presidential delegation of functions), Executive Order 11564, and the Department of Commerce Organization Order authorizing the NOAA Administrator both to exercise MMPA functions and to delegate to “any employee of NOAA.”
3. Retroactivity rejected. Bowen’s presumption against retroactive rules applies when an agency seeks to impose new obligations for past conduct absent express congressional authorization. Ratification is conceptually different: because the principal officer had authority to authorize the act at the outset, ratification treats the act as originally authorized. It does not impose new liabilities for past conduct; it validates the extant rule. The court leans on Heinszen to illustrate the distinction and stresses the absence of unfair surprise or backward-looking burdens.

The Court’s Key Doctrinal Moves

• Agency law as the default rule in public administration. The opinion treats common-law agency principles as the ambient law of executive action unless Congress says otherwise, citing Astoria Federal and Isbrandtsen. This is a powerful interpretive presumption that supports ratification across administrative contexts.
• Ministerial vs. discretionary functions. By classifying “signing for publication” as ministerial, the court preserves space for delegations to employees without short-circuiting the Appointments Clause. The principal officer remains accountable for the policy judgment—here, via independent ratification—while routine mechanical steps can be performed by staff.
• Distinguishing Lucia. The court clarifies that ratification can cure unauthorized acts but cannot retroactively convert a non-officer into an officer; Lucia concerned the latter (appointments status), not the former (ratifying a discrete act).

Impact and Practical Implications

This decision—published and thus precedential—has meaningful system-wide effects:

• Agency operations and litigation strategy. Agencies facing Appointments Clause attacks on rulemaking can deploy prompt ratification by a Senate-confirmed principal officer to cure defects. The decision encourages written, fact-informed ratifications expressly affirming the rule after independent evaluation.
• Scope of curative ratification. The holding is not an across-the-board blessing. Ratification:
  • Cannot “ratify” officer status; it cures specific acts, not people;
  • Requires that the ratifier had authority at the time of the original act and at ratification;
  • Requires that the act be delegable and not demand personal performance under a statute or regulation; and
  • May fail where third-party rights have crystallized or inequity would result.
• Harmonization with D.C. Circuit law. The Fourth Circuit’s approach aligns with Jooce v. FDA, promoting inter-circuit consistency and reducing forum-dependent outcomes on ratification in rulemaking.
• Limits from other statutes. The Federal Vacancies Reform Act and specific “only that officer” statutes (e.g., 5 U.S.C. § 3348(a)(2)) can restrict both delegation and ratification in particular settings. This opinion recognizes those carveouts and thus does not foreclose FVRA-based challenges.
• Prospective compliance and accountability. The decision preserves political accountability by requiring that a properly appointed principal officer stands behind the rule. Ratification becomes a mechanism that restores constitutional compliance without derailing years-long rulemaking processes where a signature step was misassigned.
• Regulated parties’ playbook. Plaintiffs challenging agency rules on Appointments Clause grounds should anticipate ratification and structure arguments accordingly—e.g., contesting that the act was ministerial; showing statutory “personal performance” requirements; proving that the ratifier lacked contemporaneous authority; identifying material facts the ratifier did not know; or demonstrating inequity (e.g., crystallized rights).

Unresolved Questions and Boundaries

• Who must perform the non-ministerial policy judgment? The court deems the signature ministerial and credits Spinrad’s independent evaluation. Future cases may explore how robust the ratifier’s substantive review must be, and what evidentiary showing suffices to prove “independent judgment.”
• Timing and laches-like concerns. Although filing suit does not bar ratification, prolonged delays or significant prejudice could implicate the Restatement’s inequity limits. The contours of “material change” or “unreasonable delay” remain case-specific.
• Interface with rulemaking procedure. The court assumes, and no one contested, that notice-and-comment was adequate and the final rule was a logical outgrowth. If ratification were sought to paper over substantive procedural defects, courts might react differently.
• Delegation to non-officers beyond signing. The opinion carefully treats “signing for publication” as ministerial; it does not decide whether other rulemaking functions performed by non-officers would be delegable or ratifiable.

Complex Concepts Simplified

• Appointments Clause (U.S. Const. art. II, § 2, cl. 2): Sets the rules for appointing federal “Officers of the United States.” Principal officers must be nominated by the President and confirmed by the Senate. Inferior officers can sometimes be appointed by department heads. Employees (non-officers) cannot exercise “significant authority.”
• Principal vs. Inferior Officers: Principal officers answer only to the President; inferior officers are supervised by a principal officer and can be appointed with fewer formalities if Congress permits.
• Ratification (agency law): When a principal approves an act done without authority by someone purporting to act on the principal’s behalf, the act is treated “as if” it was authorized from the start—if the principal had power at the time, knows material facts, and the act was delegable and equitable to validate.
• Ministerial vs. Discretionary Acts: Ministerial acts are mechanical or routine (e.g., signing for publication) and can usually be delegated. Discretionary acts involve judgment or policy choices and may require performance by an officer.
• Retroactive Rulemaking vs. Ratification: Retroactive rules impose new duties for past conduct and generally need express statutory authorization (Bowen). Ratification does not create new past liabilities; it confirms that an existing act was validly authorized.
• Crystallized Rights: Once a third party’s rights have definitively vested, ratification cannot be used to strip them (a fairness limit from the Restatement).

Applied Checklist: When Will Ratification Cure an Appointments Clause Defect?

• Did a principal officer with lawful authority exist at both the time of the original act and the ratification?
• Did the initial actor purport to act on the principal’s behalf within a plausible delegation chain?
• Is the act itself delegable (i.e., not required by statute/regulation to be performed “by that officer and only that officer”) and ministerial rather than policy-discretionary?
• Did the principal expressly affirm the act and demonstrate independent evaluation with knowledge of material facts?
• Would ratification avoid inequity (no crystallized rights, no material change prejudicing third parties, no untimely sandbagging)?
• Is there any statute (e.g., FVRA) that expressly bars ratification in the specific circumstances?

If the answer to each is favorable, ratification will likely cure the defect.

Conclusion

Wille v. Lutnik squarely embraces common-law ratification as a constitutional cure in the rulemaking context: when a Senate-confirmed principal officer independently evaluates and affirms a rule initially signed by a non-officer, and when the officer had authority at the time of the initial act and at ratification, the ratification validates the rule as if authorized from the outset. The court cabined the doctrine with well-known agency-law limits and avoided expanding ratification into retroactive rulemaking prohibited by Bowen.

The decision reinforces political accountability: a properly appointed principal officer must ultimately stand behind the exercise of regulatory power. At the same time, it supplies a pragmatic and legally coherent path to preserve completed regulatory work where a signature step was misallocated. Going forward, agencies should document independent, fact-informed ratifications promptly upon litigation risk; challengers should focus on statutory personal-performance requirements, the non-ministerial character of the act, or the ratifier’s lack of contemporaneous authority or knowledge. In striking this balance, the Fourth Circuit joins the D.C. Circuit in clarifying that Appointments Clause defects in rule promulgation are remediable through orthodox, bounded principles of agency law.