Yes.

Though at common law the Special Master served the courts of equity, not administrative agencies enforcing federal regulations that exclude from equitable relief actions taken in furtherance of a federal statute,* suggesting that we shouldn’t necessarily assume that the Special Master in this context continues to play the equitable and quasi-judicial function that it has in the past.

The main difference between Feinberg as 9/11 compensation fund “czar”** and Feinberg as executive pay czar is that in the former case Congress specifically authorized management of the 9/11 fund by the Attorney General “acting through a Special Master appointed by the Attorney General.”

There is no such authorization in the “bailout” bill.

Instead, the bailout regulations grant the Special Master for Executive Compensation authority to review the compensation of executives at TARP-supported companies and determine whether the clawback provisions under the regs authorize the Dept. of Treasury to impose that penalty on nonconforming companies. Under the statute, this power is delegated to the Secretary with no mention of a Special Master.

So the question is what standard governs the delegation of authority to Feinberg the Pay Czar? Is it one of those things that as long as it turns out okay and is a reasonable delegation that simply lacks explicit congressional authorization it’s okay, but if the power is too broad it’s not?

Here, I’d argue the Pay Czar’s role is a reasonable delegation of power given that the statute does not designate an enforcement body and the Secretary, not the Special Master, promulgated the regulations at issue.

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* Section 101 of the bailout bill specifically excludes any equitable relief, such as an injunction, from the Secretary’s exercise of authority under the executive compensation section “other than to remedy a violation of the Constitution.”
** We’ve simply adopted the English usage of “czar” rather than the translation of the Russian “tsar.”

I also don’t see what the fuss is about. The appointment of Special Master’s is a long standing feature of the Common Law, serving equitable functions. Moreover, how is the “Pay Czar” any different than the Special Master appointed by John Ashcroft to handle the 9/11 Victim’s Compensation Fund? Congress passed a law authorizing the distribution of funds under certain conditions and with certain goals (don’t sue the airline industry/keep the U.S. airline industry from going out of business) and let a Cabinet Secretary appoint someone to dole it out. Big Irony: Ken Feinberg was the choice for both jobs.