Lucia v. SEC

Lucia v. SEC, 585 U.S. ___ (2018), was a decision by the Supreme Court of the United States regarding the status of administrative law judges of the Securities and Exchange Commission. The Court held that they are considered inferior Officers of the United States subject to the Appointments Clause, and thus must be appointed through the President or other delegated officer of the United States, rather than hired.[1] As "inferior" officers, their appointments are not subject to the Senate's advice and consent role.

Lucia v. SEC
Argued April 23, 2018
Decided June 21, 2018
Full case nameLucia et al. v. Security and Exchange Commission
Docket no.17-130
Citations585 U.S. ___ (more)
138 S. Ct. 2044; 201 L. Ed. 2d 464
Case history
PriorRaymond J. Lucia Cos. v. SEC, 832 F.3d 277 (D.C. Cir. 2016); petition for review denied by equally divided en banc court, 868 F.3d 1021 (D.C. Cir. 2017); cert. granted, 138 S. Ct. 736 (2018).
SubsequentRaymond J. Lucia Cos. v. SEC, 736 F. App'x 2 (D.C. Cir. 2018)
Holding
Administrative law judges of the Securities and Exchange Commission are considered officers of the United States, and are thus subject to the Appointments Clause.
Court membership
Chief Justice
John Roberts
Associate Justices
Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan · Neil Gorsuch
Case opinions
MajorityKagan, joined by Roberts, Kennedy, Thomas, Alito, Gorsuch
ConcurrenceThomas, joined by Gorsuch
Concur/dissentBreyer, joined by Ginsburg, Sotomayor (Part III only)
DissentSotomayor, joined by Ginsburg

Background

Like many other government agencies, the Securities and Exchange Commission (SEC) uses administrative law judges (ALJ) to act as a judge in resolving disputes for the agency related to administrative law, those laws that describe how the agency is run. Prior to this case, through November 2017, the SEC had selected ALJ through an in-house hiring process, without seeking consult of the President or officers. Due to this case, as well as the election of President Donald Trump that put more pressure on the use of ALJs within the government, the SEC formally announced on November 20, 2017 it would have ALJ's appointed by its five Commissioners, as to align with the Constitution's Appointments Clause to eliminate the constitutionality question raised by this case.[2]

In 2012, investment adviser Ray Lucia promoted a retirement investment strategy called "Buckets of Money" through several seminars. The SEC believed Lucia was offering misleading information in these presentations, and charged Lucia and his investment company under the Investment Advisers Act of 1940.[3] SEC ALJ Cameron Elliot was assigned the case, and after hearings, ruled against Lucia, fining him US$300,000 and barring him for life for participating in the investment industry.[4] Lucia appealed the case to the SEC, arguing that Elliot's position was considered an "officer of the United States" due to being able to pass judgement, and as per the Appointments Clause, must be appointed to that position by the President or other officers with delegated authority to do so; Elliot had not gone through such a process. As such, Lucia argued that Judge Elliot was not empowered to issue the ruling. The SEC rejected Lucia's claim that ALJs were officers of the United States; the ALJs used by SEC may issue decisions with significant ramifications for those charged, but these decisions are reviewed by the SEC Commissioners (who are appointed by the President) before they are approved and implemented. To the SEC, they considered that the ALJs, to fulfill their duties, only needed to be employees of the agency, as was the case with Judge Elliot, and did not need to be appointed, and dismissed Lucia's appeal.[5][6]

Lucia's argument was not the first time the question of ALJ's status had been raised in courts, but in at least two previous cases within the United States courts of appeals system had ruled that the question was a matter of administrative review, and not a constitutional question. Lucia's case at the SEC led one of the SEC commissioners hearing the case to question whether ALJ must be appointed or not.[7]

Lucia appealed to the United States Court of Appeals for the District of Columbia Circuit, which also aligned with the SEC in that ALJs did not serve officers of the United States.[8] Upon an en banc hearing within the Court of Appeals, the full ten-member panel was split, forcing them to issue a per curiam decision that maintained the SEC's stance.[9][10]

Supreme Court

Lucia petitioned to the Supreme Court for writ of certiorari in July 2017, asking the Court to rule if ALJs are officers of the United States and thus subject to the Appointments Clause. The Court granted to hear the case in January 2018, with oral arguments set for April 23, 2018.

During the case's review in lower courts, the United States government had backed the SEC's stance. With the election of Donald Trump as President, the government's stance had changed, favoring the argument that ALJs should be appointed. The SEC had already changed its process of hiring ALJs prior to the Supreme Court decision, by requiring appointments to be approved by a vote of the Commission.[11] In its brief to the Supreme Court, the government also held the stance that as ALJs should be appointed, they should also be able to be dismissed at the President's or other delegated officer's discretion.[12] The Court did not consider this question during oral hearings and internal debates.

Opinion of the Court

The Court announced judgment in favor of Lucia on June 21, 2018, reversing and remanding to the circuit court by a vote of 7–2.[13] The decision affirmed Lucia's statement that ALJs are officers of the United States, since they are effectively being given quasi-judicial executive power, and thus must be appointed by the President or a delegated officer.[6] The Court ruled that Lucia must now be due a new hearing before a different, properly appointed officer from the SEC, but otherwise did not comment on any other aspect of Lucia's case.[11] The majority opinion was written by Justice Elena Kagan and joined by Chief Justice John Roberts, as well as Justices Anthony Kennedy, Clarence Thomas, Samuel Alito, and Neil Gorsuch.[14]

Concurring and dissenting opinions

Justice Thomas also wrote a concurring opinion, joined by Gorsuch. While this decision is expected to allow any entity with a pending case before an SEC ALJ to request a new ruling, the ruling was crafted as to prevent completed cases from being reopened, or if this would apply to cases open at other agencies besides the SEC.[13]

Justice Stephen Breyer concurred in part with the judgment and dissented in part, with Justices Ruth Bader Ginsburg and Sonia Sotomayor joining in his dissent. Breyer agreed that the appointment of ALJs by SEC staff rather than by the Commissioners themselves was not lawful.[15] However, this unlawfulness arose from a violation of the Administrative Procedure Act.[16] Because this violation was statutory in nature, it was unnecessary to address the constitutional question.[17] In addition, Breyer argued that it was problematic to determine the "inferior Officer" status of ALJs without first deciding the "pre-existing Free Enterprise Fund[18] question— namely, what effect that holding would have on the statutory 'for cause' removal protections that Congress provided for administrative law judges."[19] Finally, Breyer disagreed with the need for a hearing before a different ALJ, as it is not clear that the Constitution requires a hearing before a different "Officer" after an Appointments Clause violation.[20]

Sotomayor also wrote a dissenting opinion, joined by Ginsburg, stating that ALJs should not be treated as officers as their judgments are not treated as final and binding.[13]

References
  1. Lucia v. SEC, No. 17-130, 585 U.S. ___ (2018).
  2. Chung, Andrew (January 12, 2018). "U.S. Supreme Court takes up challenge to SEC in-house judges". Reuters. Retrieved June 21, 2018.
  3. "SEC Investigating Radio And TV Personality Ray Lucia". KPBS. September 5, 2012. Retrieved June 21, 2018.
  4. Hunnicutt, Trevor (July 9, 2013). "U.S. SEC fines, bars 'Buckets of Money' radio host for fraud". Reuters. Retrieved June 21, 2018.
  5. Bauder, Don (September 7, 2015). "SEC kicks Ray Lucia's "Buckets of Money" ploy". San Diego Reader. Retrieved June 21, 2018.
  6. Michaels, Dave; Kendall, Brent (June 21, 2018). "High Court Rules Appointments Process for SEC Judges Violated Constitution". The Wall Street Journal. Retrieved June 21, 2018.
  7. Henning, Peter (October 5, 2015). "Constitutional Challenges to S.E.C.'s Use of In-House Judges". The New York Times. Retrieved June 21, 2018.
  8. Raymond J. Lucia Cos. v. SEC, 832 F.3d 277 (D.C. Cir. 2016).
  9. Raymond J. Lucia Cos. v. SEC, 868 F.3d 1021 (D.C. Cir. 2017).
  10. Lynch, Sarah (June 26, 2017). "SEC wins latest round over how its judges are appointed". Reuters. Retrieved June 21, 2018.
  11. "Supreme Court sides with 'Buckets of Money' financier". Associated Press. June 21, 2018. Retrieved June 21, 2018.
  12. Newkirk, Margaret; Storh, Greg (April 20, 2018). "Trump's War on 'Deep State' Judges". Bloomberg L.P. Retrieved June 21, 2018.
  13. Liptak, Adam (June 21, 2018). "S.E.C. Judges Were Appointed Unlawfully, Justices Rule". The New York Times. Retrieved June 23, 2018.
  14. Note, The Supreme Court, 2017 Term — Leading Cases, 132 Harv. L. Rev. 287 (2018)
  15. Jennifer L. Mascott, “Officers” in the Supreme Court: Lucia v. SEC, 2017-2018 Cato Sup. Ct. Rev. 305 (2018)
  16. Lucia, 585 U.S. at ___ (Breyer, J., dissenting)(slip op. at 2).
  17. Lucia, 585 U.S. at ___ (Breyer, J., dissenting)(slip op. at 3).
  18. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010).
  19. Lucia, 585 U.S. at ___ (Breyer, J., dissenting)(slip op. at 12).
  20. Lucia, 585 U.S. at ___ (Breyer, J., dissenting)(slip op. at 14).
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