SEC ALJs – Lucia, the Appointments Clause and Remedies

by Dorsey & Whitney LLP

Whether the Commission’s Administrative Law Judges were appointed in accord with the Constitution and thus validly hold their positions will be argued on Monday, April 23, 2018 at 10:00 a.m. before the Supreme Court in Raymond J. Lucia v. Securities and Exchange Commission, No. 17-130. While many believe that the outcome here is a foregone conclusion since the Commission and the Solicitor General confessed error last November, the Court appointed an amicus who is more than ably defending the result of the lower court – there was no violation of the Constitution’s Appointments Clause. And, the Court does not always side with the Solicitor General.

If, however, there was error then the validity the proceeding charging and finding that Mr. Lucia violated the securities laws and that he should be bared from the industry is at stake, and perhaps much more. The Commission has dozens of administrative proceedings at various stages being conducted by its ALJs. Other federal agencies with similar administrative schemes have dozens of other cases at various stages. The validity of all those proceedings would be in question.

The question of remedies was not addressed by the lower court in Lucia or typically in the other cases which have challenged the validity of SEC ALJs under the Appointments Clause in recent years. One option is to concluded that all of the proceedings are a nullity and must be dismissed as Mr. Lucia contends. An alternative might be the approach adopted by the Commission when it confessed error. At that time the SEC appointed its ALJs and essentially directed them to reconsider each of their pending cases. The Court could also simply remand the case to the circuit for further proceedings, subjecting the entire process to what could be months more of litigation and uncertainty. The oral arguments should provide important clues to the ultimate disposition of this critical issue. Below is a brief recap of the briefs of each party and a brief discussion.

Petitioner: Raymond J. Lucia

The Appointments Clause of Article 2 provides for the appointment of “Officers of the United States.” The “Principal” officers must be appointed under the Clause by the President with the advice and consent of the Senate. Congress can also provide for “inferior Officers” under the Clause. They may be appointed in the same manner. Alternatively, Congress may provide for the appointment those officers by the President alone, the Courts of Law or the Heads of Departments. Others holding federal positions are employees. Under the Clause there are thus three classifications of officials under the President. SEC ALJs have traditionally been in the third group.

Petitioners, joined by the Commission and the Solicitor General, contend that SEC ALJs are properly considered to fall in the second group. The Appointments Clause is a significant Constitutional safeguard designed to preclude abuses of power through the appointment process, according to Petitioner. Thus principal officers are appointed by the President and answerable to that office. The appointment of other United States Officers can be provided for by Congress.

The Court has consistently read the term Officer broadly in cases such as Buckley v. Valeo, 529 U.S. 1 (1976) and later Freytag v. Commissioner, 501 U.S. 868 (1991). Under Buckley for example, “Every official whose position is ‘established by law’ and who exercises ‘significant authority pursuant to the laws of the United States is an ‘Officer of the United States, and must, therefore be appointed in the manner prescribed by the Appointments Clause.” (emphasis original, internal quotes omitted). That conclusion is wholly consistent with the purpose of the Clause and the Court’s prior rulings. Reading the Clause in this broad manner is wholly consistent with its purpose as a structural safeguard, Petitioner claims.

The Court’s post Buckley decisions confirm this point. Freytag, the key case here, “held that special trial judges (‘STJs’) of the U.S. Tax Court were officers because they held positions ‘established by Law” and exercised authority ‘so significant that it was inconsistent with the classifications of . . . employees.” (internal quotations omitted). Over the years the Court has applied this test to a variety of officials and confirmed its validity.

SEC ALJs have all the characteristics of Officers, according to Petitioner. They are officers established by law. They exercise significant federal authority. In overseeing SEC administrative proceedings the ALJs exercise authority over a wide range of matters at every stage of the case, confirming that their position is that of an Officer. In this case, for example, the ALJ exercised authority not just in shaping the factual record but also over legal issues. In this case an “unconstitutional official thus established both the legal and factual predicates for the ensuing actions of the SEC and the court of appeals – including the lifetime bar imposed on Lucia.”

The D.C. Circuit incorrectly concluded that Officers must have the “power of final decision.” Confining the term Officer to those who can issue unreviewable final decisions “cannot be reconciled with this Court’s . . .” prior decisions. Freytag, for example, “expressly rejected the argument that inability to make final decisions takes officials outside the Appointments Clause.” While in many cases, including Freytag, STRs lacked the ability to enter the final decision on their own, the Court specifically concluded that fact is not determinative. Rather the fact that STRs exercised significant federal authority was key. Citing Burgess v. FDIC, 871 F. 3d 297 (5th Cir. 2017), Petitioner argued that the D.C. Circuit is the only one to have misread Freytag to require the ability to make a final decision.

Petitioner’s position is supported by Congress which provided that SEC ALJs are executive officers. The federal securities laws, for example, repeatedly refer to SEC ALJs as “officers of the Commission.” Similarly, Congress wrote the Administrative Procedure Act in part to make ALJs “a special class of semi-independent” yet still subordinate hearing officers. In the end, however, while SEC ALJs wield a form of adjudicative power, they are part of the executive branch. By definition all authority in that branch is reviewable and answerable to the President. Nevertheless, the “only question is this case is whether the five SEC ALJs . . . are Officers. As the applicable statutes confirm, that question must be answered in the affirmative. Adjudicators who wield such significant federal power in a manner that affects the liberty and property rights of citizens are precisely the sort of officials whose appointment should be ‘accountable to the political forces and the will of the people,’” quoting Freytag.

Finally, a violation of the Constitution requires a meaningful remedy. Here the violation of the Appointments Clause “taints the entire proceeding.” Therefore an “entirely new proceeding is constitutionally required . . .” Under the circumstances in this case however, it is doubtful that any SEC ALJ could give Petitioner a fair hearing given his challenge to their authority.

Dismissal is warranted. The Commission’s efforts at “radification” are not sufficient. To properly appoint an Officer there must be a Commission vote, the administration of the oath of office and the signing and delivery of a commission. These procedures were not followed here, only a Radification Order was entered. That process was not sufficient. The proceedings should be dismissed.

Solicitor General: Petitioner’s position is supported by a brief filed by the Solicitor General. That brief largely reiterates Petitioner’s arguments regarding the construction of the Appointments Clause and the Court’s prior decisions on the question. It adds one issue not raised in the question presented or by Petitioner regarding limitations on the President’s ability to terminate an SEC ALJ under the Appointments Clause, urging the Court to read those provisions in a restrictive manner in view of Free Enterprise Fund v. Public Co. Accounting Oversight Board, 561 U.S. 477 (2010). The Solicitor General did not address the question of remedies.

Court Appointed Amicus Curiae in support of judgment below

The ALJ who heard the proceedings below were not appointed in accord with the Appointments Clause. To the contrary he, along with others at the agency, were selected by the SEC staff under delegated authority from the Commission. The manner of their appoint, however, is not unlawful — they are not constitutional officers, Amicus argues.

The parties agree that the ultimate question here turns on whether SEC ALJs exercise significant authority under the laws of the United States as stated in Buckley. This “Court has not had occasion to articulate the precise scope of that constitutional precondition But a centuries-old understanding of the term ‘Officers of the United States’ yields a rule fully consistent with the Appointments Clause’s purpose and this Court’s cases: An individual wields ‘significant authority’ only if she holds an office that has been ‘delegat[ed] by legal authority . . . a portion of the sovereign powers of the federal government.” That “criterion is satisfied only if the individual has (i) the power to bind the government or third parties (ii) in her own name rather than in the name of a superior officer.” SEC ALJs do not have this authority.

It has been understood since the earliest days of the Nation that the critical test of officer status is the lawful delegation of authority to exercise legal power and bind the government or third parties for the benefit of the public. Acts that bind the government include filing enforcement actions in court or before an administrative body, making litigation decisions that bind the U.S. and issuing binding interpretations of law. This rule is reflected in state court decisions tracing to 1822 as well as materials from the House of Representatives from 1899. In contrast, a mere employee is a person who lacks such power.

This rule is reflected by the Court’s decisions in Buckley and Freytag. In the latter, for example the “Tax Court special trial judges . . . [had] the power, among other things, to enter final decisions in some cases. This same rule is reflected in the “Court’s earlier cases. As the Solicitor General correctly explains, many of those cases concerned ‘whether Congress intended to treat a position it had created by statute as an ‘office,’ not whether the functions of the position were so significant that the Constitution required that the position be held by an officer’ of the United States.” (emphasis original; internal citations omitted). Even so, the positions that this Court’s earlier cases called ‘offices’ were delegated power to bind the government or alter private rights.” The Court’s prior cases are thus fully consistent with the rule articulated above, according to Amicus.

Although the authority to bind the government or private parties is a necessary precondition to Officer status, it is not sufficient. A person holding such a position is not “a constitutional officer if that power cannot be exercised in the appointee’s own name, but only in the name of a superior who is a constitutional officer.” This rule is reflected in actions by the First Congress, earlier decisions by the Court, and opinions of the Executive Branch.

Petitioner and the Solicitor General would have this Court significantly expand the scope of officer status beyond its historical underpinnings. Petitioners reading of Freytag, for example, “would have significant negative practical consequences (including calling into question the constitutionality of more than a century’s worth of presidential and congressional investigative commissions), would not materially advance the purpose of the Appointments Clause, and would be difficult for the political branches to administer.” Such a rule would, for example, make “every government attorney, investigator, and law-enforcement official . . .” a constitutional officer. Yet it would not materially advance the purpose of the Appointments Clause which is “to preserve political accountability relative to important Government assignments.” (internal citation omitted).

Under the Appointments Clause SEC ALJs are not constitutional officers. They cannot bind the government or alter the rights of private parties in their own names. This is clear from the fact that SEC ALJs lack the authority to make final decisions that are binding on private parties or the Commission. While it is clearly true that Congress in the APA sought to make ALJs a special class of semi-independent subordinate hearing officers, that balance was attained by creating limited separation for them from their respective agencies with respect to their tenure and compensation. “Crucially, Congress did not seek to increase ALJ independence – and certainly not SEC ALJ independence – by granting ALJs independent authority to bind the government or private parties. That is the authority that matters, and it is lacking here.” (emphasis original).

While Petitioner correctly notes that the APA originally described ALJs as officers this does not mean they are constitutional Officers under the Appointments Clause. What Petitioner missed is that in 1966 when Title 5 of the Code was restated without substantive change but with a definition of Officer, “Congress simultaneously deleted every reference to ALJs (then called ‘hearing examiners’) as ‘officers,’ and replaced each such reference with ‘employee.’” SEC ALJs are not in the view of Congress or under this Court’s precedents, constitutional officers.

Amicus did not address the question of remedies, noting that the Court did not instruct that issue to be briefed.

Other amicus briefs: A number of other amicus briefs were filed, some of which addressed the question of remedies. The Federal Administrative Law Judges Conference In Support of Neither Party noted that the Court should decide the case in a manner which preserves the independence of ALJs. On the question of remedies the Conference argued that final judgments should not be reopened and that a ratification process would be sufficient for other cases. An amicus brief in support of Petitioners by RD Legal Capital, LLC and Roni Dersovitz in support of Petitioners argues that the ratification process used by the SEC is contrary to the Appointments Clause and, in any event, the process is inappropriate. Another amicus brief in support of Petitioner, filed by the Washington Legal Foundation, urged the Court to consider the question of remedies and argued that ratification would be inappropriate. Rather, if the agency wished to continue with any of the proceedings, a new action should be initiated.


Many observers believed that when the SEC and the Solicitor General confessed error this case was essentially over. A review of the briefs, briefly summarized above, shows otherwise. Important issues of Constitutional law remain.

On the merits the essential difference between Petitioners and Court appointed amicus is a reading of cases such as Frytag. Petitioner read the cases as supporting a rule where the exercise of significant authority by a person holing a statutorily created position is sufficient to require appointment as a constitutional officer under the Appointments Clause. Court appointed amicus details at length the reason this is an incorrect reading of the history of the Clause and the Court’s prior cases. Rather, the Clause requires that the Officer have not just significant authority but the power to bind the government and private parties in its own name. Yet Petitioners must admit that the Special Trial Judges in Frytag do in fact have the authority to act in their own name at least at times as the court appointed amicus states. On the other hand Court appointed amicus essentially admits that none of the Court’s prior cases specifically mandate the precise rule advocated in its brief.

Finally, the question of remedies is not within the question presented to the Court for resolution. That point is graphically illustrated by the statement from Court appointed amicus declining to brief the question. Typically, the Court would remand the case if it agrees there is a Constitutional violation and direct the lower court to consider the question of remedies in view of the opinion issued. If that is the result in this action, the ultimate resolution of this case may be dictated by the D.C. Circuit’s recent ruling in Laccetti v. Securities and Exchange Commission, No. 16-1368 (March 23, 2018). There the court found there was a structural constitutional error in a PCAOB proceeding where the witness in the investigation was denied his constitutional right to counsel because the attorney representing the witness was not permitted to have the assistance of an expert accountant. In view of the nature of the error the court ordered dismissal of the proceedings but allowed that the Board could reinstitute them if the applicable law allowed. If the Supreme Court agrees with Petitioner, the Solicitor General and the SEC this may well be the result for Mr. Lucia. It could also be the result for each respondent in a pending SEC administrative proceeding.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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