UPDATED: Supreme Court Agrees to Hear Constitutional Challenge to SEC Administrative Law Judges

UPDATED: Supreme Court Agrees to Hear Constitutional Challenge to SEC Administrative Law Judges

Legal Sidebari

UPDATED: Supreme Court Agrees to Hear
Constitutional Challenge to SEC
Administrative Law Judges
Updated April 20, 2018
UPDATE 4/20/2018: The Supreme Court will hear oral argument in Lucia v. SEC on Monday, April 23,
2018.
The original post from January 16, 2018, follows below.
On Friday, the Supreme Court granted certiorari in Lucia v. Securities and Exchange Commission (SEC)
to decide whether administrative law judges (ALJs) within the SEC are “Officers of the United States”
(officers) who must be appointed in accordance with the Appointments Clause of Article II of the
Constitution. If the Supreme Court holds that SEC ALJs are officers, its conclusion could call into
question the validity of prior decisions rendered by SEC ALJs (whose initial hiring did not comport with
the Appointments Clause) and may have broader implications for ALJs in other federal agencies. This
Sidebar provides an overview of the case by first discussing the Appointments Clause and the key
decisions leading up to the Court’s review, and then highlighting the relevant arguments and
considerations before the Supreme Court.
Appointments Clause. The Appointments Clause provides that the President “shall nominate, and by and
with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States,” but that
Congress may vest the appointment of “inferior” officers “in the President alone, in the Courts of Law, or
in the Heads of Departments.” The Constitution does not establish appointment requirements for non-
officers (i.e., employees).
The central question in Lucia is whether SEC ALJs are inferior officers or employees, a question the
Supreme Court considered with respect to special trial judges of the U.S. Tax Court in Freytag v.
Commissioner. In Freytag, the Court held that special trial judges were officers rather than employees
because: (1) their position is “established by Law” with statutorily prescribed duties, salary, and means of
appointment; (2) the judges “perform more than ministerial tasks” in that they “take testimony, conduct
trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery
orders”; and (3) the judges “exercise significant discretion” in performing these tasks. The Court reasoned
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that even if the special trial judges’ duties were not so significant, the judges would still qualify as officers
because they could render final decisions in certain types of cases.
As explained below, a key issue in Lucia is the proper interpretation of the Freytag decision, and in
particular, whether the absence of final decisionmaking authority renders an adjudicator a mere employee.
Proceedings Below. Lucia began with an SEC enforcement action against an investment company and its
owner (the Lucia Petitioners). An SEC ALJ presided over the case and rendered an initial decision
concluding that the Lucia Petitioners had misled potential investors in presenting their “Buckets of
Money” retirement investment strategy. The sanctions imposed by the ALJ included civil money penalties
and a lifetime industry bar for the company’s owner. On appeal to the Commission, the Lucia Petitioners
argued that the proceedings before the ALJ were invalid because the ALJ was not appointed in accordance
with the Appointments Clause (i.e., by the President, a department head, or the courts). The Commission
rejected Petitioner’s Appointments Clause challenge and, after reviewing the record, imposed the same
sanctions as the ALJ.
On appeal to the D.C. Circuit, a unanimous panel ruled that SEC ALJs are not officers subject to the
Appointments Clause. The court relied in key respects on its earlier decision in Landry v. Federal Deposit
Insurance Corporation (FDIC), in which the court held that ALJs at the FDIC are employees rather than
inferior officers because they do not have the power to render final decisions for the FDIC. Two judges on
the Landry panel had reasoned that the “power of final decision . . . was critical” to the Supreme Court’s
holding in Freytag that special trial judges were inferior officers. The concurring judge disagreed,
reasoning that the Supreme Court had cited final decisionmaking authority as an alternative basis for
concluding that special trial judges are inferior officers; in other words, the other duties of special trial
judges were sufficient to consider them inferior officers.
Analogizing to the Landry decision, the Lucia panel held that SEC ALJs were employees, rather than
inferior officers, because an SEC ALJ’s decision becomes final only when the Commission issues a
finality order declining review and stating when sanctions, if any, take effect. Following en banc review,
the D.C. Circuit did not publish an opinion on the Appointments Clause issue and instead issued a short
per curiam decision denying the Lucia Petitioners’ request for review of the SEC’s decision “by an
equally divided court.”
Circuit Split. Following the D.C. Circuit panel decision in Lucia, the Tenth Circuit (and later the Fifth
Circuit) interpreted Freytag to mean that final decisionmaking authority is relevant, but not dispositive, in
considering whether an ALJ is an inferior officer. Specifically, the Tenth Circuit concluded that SEC ALJs
are officers because, like the special trial judges in Freytag, their position, duties, salary, and means of
appointment are specified by statute, and they “exercise significant discretion” in performing important
adjudicatory functions.
Initial Supreme Court Filings. In their petition for a writ of certiorari, the Lucia Petitioners describe
Freytag as a “critical decision” and argue that based on this and other authority, SEC ALJs are officers
subject to the Appointments Clause. They submit that the Supreme Court “has never held that a federal
adjudicator is a mere employee, while holding that many quasi-judicial officials—including clerks,
commissioners, and non-Article III judges—are Officers.” As to the Petitioners’ proposed remedy if they
prevail on their constitutional challenge, they argue that “the only appropriate remedy” is for the Court to
vacate the SEC’s decision.
In the proceedings below, the SEC formerly took the position that its ALJs were employees rather than
officers. However, in its response to the Lucia petition, the Solicitor General (as counsel of record on
behalf of the government) states that “[u]pon further consideration, and in light of the implications for the
exercise of executive power under Article II, the government is now of the view that [SEC] ALJs are
officers because they exercise ‘significant authority pursuant to the laws of the United States.’” The
Solicitor General asks the Court to appoint an amicus curiae to defend the D.C. Circuit’s judgment.

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The Solicitor General also argues that whether SEC ALJs are officers has “important implications” for
“the manner in which they may be removed from office,” and urges the Court to “address whether the
restrictions imposed by statute on [SEC ALJs’] removal are consistent with the constitutionally prescribed
separation of powers.” Specifically, the Solicitor General submits that SEC ALJs enjoy “at least two, and
potentially three, levels of protection against presidential removal authority” because the Commission
may remove them “only for good cause established and determined by the Merit Systems Protection
Board” whose members “in turn ‘may be removed by the President only for inefficiency, neglect of duty,
or malfeasance in office’”—a standard which, according to the Solicitor General, may also apply to the
individual Commissioners. The Solicitor General argues that the Supreme Court has “recognized that the
Constitution forbids Congress from placing certain restrictions on the power to remove officers of the
United States,” citing Free Enterprise Fund v. Public Company Accounting Oversight Board, in which the
Court held that “dual for-cause limitations” on the removal of Board members violated Article II. The
Lucia Petitioners oppose review of the removal issue, arguing that it is beyond the scope of the question
presented (i.e., whether SEC ALJs are officers) and was not argued or decided in the proceedings below.
SEC’s Ratification Order. The day after the Solicitor General’s filing in Lucia, the SEC issued an order
ratifying “the agency’s prior appointment” of its five ALJs. The order also directed the SEC ALJs to
reevaluate pending proceedings (including those for which an initial decision is pending before the
Commission) by reexamining the record, accepting new evidence from the parties, and issuing an order
stating whether the ALJ has determined to ratify or revise in any respect the ALJ’s prior actions in the
matter.
Key Considerations for the Court. If the Supreme Court agrees with the Lucia Petitioners and the
Solicitor General that SEC ALJs are inferior officers, its decision could have implications for the nearly
2,000 ALJs situated in other agencies across the federal government. Closer examination of the authority,
duties, and methods of appointment of those ALJs may demonstrate that their positions are
distinguishable from SEC ALJs. Nevertheless, if and how the Court chooses to refine its analysis in
Freytag undoubtedly will be a key factor in evaluating future Appointments Clause challenges to ALJs.
Whether the Court chooses to address the constitutionality of the limitations on SEC ALJs’ removal
remains to be seen. Even if the Court declines the Solicitor General’s invitation to opine on this question,
any decision that SEC ALJs are officers may raise the specter of a future challenge on the removal issue,
because, as the Supreme Court noted in Free Enterprise Fund, “removal is incident to the power of
appointment.”
In addition, if the Court concludes that the SEC ALJ’s selection violated the Appointments Clause, then
the scope of the Court’s remedy may set an important precedent for future Appointments Clause
challenges. For example, it is unclear whether the Court (or the circuit court on remand) would require the
SEC to provide the Lucia Petitioners with an entirely new hearing before a constitutionally appointed ALJ
or would conclude that the Commission already conducted an independent review of the record on appeal
and that a new evidentiary hearing would not change the outcome of the case.
This Court or future courts also may have to grapple with the effects of the SEC’s ratification order. In the
Commission’s view, the order should “put to rest any claim that administrative proceedings pending
before, or presided over by, Commission [ALJs] violate the Appointments Clause.” However, the Lucia
Petitioners argue that an Appointments Clause defect persists because, in their view, the order does not
effectuate a valid “appointment” because there was no “prior appointment” to ratify and the order itself
does not appoint anyone. Even if the order is held to effectuate valid ALJ appointments for purposes of
future proceedings, the SEC still might see challenges to the adequacy of its reevaluation mandate for
pending actions and to past decisions that were not subject to reevaluation.
The Supreme Court has not yet scheduled oral argument in Lucia, but a decision is expected by the end of
June 2018.

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Author Information

Victoria L. Killion

Legislative Attorney

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