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The U.S. Supreme Court’s decision in a case it has accepted for review could have a significant impact on the constitutionality of rulings by the administrative law judges frequently used by the U.S. Securities and Exchange Commission as well as a broad swath of other federal agencies.
Some critics have said the SEC’s use of administrative law judges has given the agency an unfair advantage in the proceedings it initiates against businesses.
The issue in the case accepted by the high court, Raymond J. Lucia and Raymond J. Lucia Cos. Inc. v. Securities and Exchange Commission, is whether administrative law judges working for the SEC are “inferior officers” under the Constitution and therefore fall under its Appointment Clause, which means they should have been appointed by the president, a court or a department head. Instead, SEC administrative law judges have been hired through a merit selection process administered by the Office of Personnel Management.
Mr. Lucia’s case involved an SEC administrative law judge who held that Mr. Lucia, a former radio host, had committed securities fraud by making material misrepresentations to prospective clients. He was fined $300,000 and barred from the securities industry.
In its August 2016 ruling in the Lucia case, the U.S. District Court for the District of Columbia Circuit rejected Mr. Lucia’s argument that the administrative hearing was an unconstitutional procedure because the administrative judge who heard the enforcement action was unconstitutionally appointed.
The District Court’s 2016 ruling contradicted a January 2017 decision by the 10th U.S. Circuit Court of Appeals in Denver in David F. Bandimere v. United States Securities and Exchange Commission, in which the court held that administrative law judges working for the SEC are “inferior officers” and should have been appointed by the president, a court or a department head.
Meanwhile, in what has been described as an effort to head off the Supreme Court’s eventual ruling on the issue, the SEC changed its position and ratified “in its capacity as head of a department” the agency’s prior appointment of its five administrative law judges — in effect complying with Mr. Lucia’s position.
Observers say the Supreme Court’s ultimate ruling in the case could affect the constitutionality of rulings by administrative law judges from other agencies as well, including the Federal Energy Regulatory Commission, the Environmental Protection Agency, the Federal Deposit Insurance Corp. and the Consumer Financial Protection Bureau.
Not impacted would be the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission and the National Labor Relations Board, because of the manner in which administrative law judges are appointed to those agencies, according to Arthur G. Sapper, senior counsel with Ogletree, Deakins, Nash, Smoak & Stewart P.C. in Washington.
In an amicus brief filed with the Supreme Court that argues the administrative law judges’ appointments are subject to the Appointments Clause requirements, the U.S. Chamber of Commerce states the SEC has had an unfair “home court advantage.” It says the “increased use of in-house administrative proceedings before SEC ALJs has one undisputable result: the commission prevails much more frequently.”
“That materially and adversely affects the rights and interests of businesses and individuals subject to SEC enforcement actions and to SEC regulation more generally,” says the brief.
A decision against the SEC would “somewhat reduce” that home court advantage, said Mr. Sapper.
“The SEC has been much more inclined to use their in-house ALJs” rather than go through the courts over the past three to four years, said Kevin LaCroix, executive vice president of RT ProExec, a division of R-T Specialty L.L.C., in Beachwood, Ohio.
He said he believes this is because the agency has had a mixed track record in the courts but has had very good success with cases heard by the administrative law judges. “Obviously, if you’re the target of an enforcement action, you’d rather be in court,” Mr. LaCroix said.
As to the Supreme Court’s eventual ruling in the case, “I’m inclined to think there’s a good chance Mr. Lucia’s position will prevail,” based in part on past decisions by Supreme Court Justice Neil Gorsuch, said Mr. LaCroix.
Mr. LaCroix said, “I don’t think this dramatically changes the amount of enforcement activity the SEC does, but it will change the liability environment.”
Brian E. Casey, a partner with Barnes & Thornburg L.L.P. in South Bend, Indiana, said a ruling in Mr. Lucia’s favor would void many impending enforcement actions as well as slow down the SEC.
Mr. Sapper said businesses that have not yet received a final order in an SEC proceeding “should be able to benefit from a Supreme Court decision against the SEC.” The situation, though would-be “highly uncertain” for cases that have already been settled, he said.
The issue of the constitutionality of the administrative law judges frequently used by the Securities and Exchange Commission — and also by numerous other federal agencies — to adjudicate issues is expected to be considered by the U.S. Supreme Court in light of a recent appeals court ruling.