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Supreme Court Says SEC In-House Judges Are More Than ‘Mere Employees’

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Justice Elena Kagan (2015). Credit: Diego M. Radzinschi/ALM

Updated 1:08 p.m.

The U.S. Supreme Court ruled Thursday that administrative law judges who handle financial disputes at the Securities and Exchange Commission are “officers” of the United States who should be appointed by the president, courts or department heads and not by agency staff.

The split decision in Lucia v. Securities and Exchange Commission could affect hundreds of administrative judges throughout the federal bureaucracy and offer a fresh take on the status of the administrative and regulatory state.

Justice Elena Kagan wrote for herself and five other justices, determining that under the 1991 Freytag ruling the judges should be deemed “officers.” Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor concurred in part, and Sotomayor, joined by Ginsburg, wrote a dissent.

The case also briefly resonated in the ongoing headlines about President Donald Trump’s threats to fire officials involved in the Russia probe. In the briefing of the Lucia case, U.S. Solicitor General Noel Francisco urged the court to consider strengthening presidential power to remove as well as appoint key officers. The Supreme Court on Thursday declined that invitation.

“The government’s merits brief now asks us again to address the removal issue. We once more decline,” Kagan wrote in a footnote. “No court has addressed that question, and we ordinarily await ‘thorough lower court opinions to guide our analysis of the merits.’”

The case was brought by Raymond Lucia, a financial advisor who was fined and banished from the industry by the SEC because of allegedly misleading statements in his “Buckets of Money” seminars.

Mark Perry of Gibson, Dunn & Crutcher, represented Lucia, claiming the process was tainted because SEC judges were picked internally, rather than appointed by the president or department heads under the appointments clause of the Constitution.

In a statement Thursday, Perry said, “Today, the Supreme Court agreed that SEC administrative law judges must be appointed pursuant to the Appointments Clause, and that the constitutional violation in this case requires a new hearing before a new adjudicator. We are thrilled with the result, which is a victory for the rule of law, constitutional accountability, and liberty.”

Lucia was one of several Supreme Court cases since the beginning of the Trump administration in which Francisco took a stance opposite to that of prior administrations. After he sided with Lucia in a brief filed last November, the SEC swiftly changed gears and appointed its judges more formally in compliance with the Appointments Clause. But the case was not moot because Lucia still faced punishment.

Because both parties were on the same side, the court appointed O’Melveny & Myers partner Anton Metlitsky to assert the orphaned position that SEC judges should be regarded as employees, not officers. In the opinion Thursday, Kagan wrote, “We appointed Anton Metlitsky to brief and argue the case … and he has ably discharged his responsibilities.”

Before the court’s ruling, federal agencies—including the SEC and the U.S. Labor Department—moved to “ratify” their administrative law judges. The administrative maneuvering was meant to shore up the decisions that these judges have made.

The Supreme Court’s ruling in Lucia v. SEC is posted below:

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Marcia Coyle contributed reporting from Washington. This story was updated with additional comment about the court’s ruling.