Lucia v. Securities And Exchange Commission

138 S.Ct. 2044 (2018)


The SEC (P) has statutory authority to enforce the nation’s securities laws. By law, P may itself preside over such a proceeding. P may also delegate that task to an ALJ. P currently has five ALJs. Other staff members, rather than the Commission proper, selected them all. A P ALJ has extensive powers-the “authority to do all things necessary and appropriate to discharge his or her duties” and ensure a “fair and orderly” adversarial proceeding. Those powers “include, but are not limited to,” supervising discovery; issuing, revoking, or modifying subpoenas; deciding motions; ruling on the admissibility of evidence; administering oaths; hearing and examining witnesses; generally “regulating the course of” the proceeding and the “conduct of the parties and their counsel”; and imposing sanctions for “contemptuous conduct” or violations of procedural requirements. P instituted an administrative proceeding against D and his investment company. D marketed a retirement savings strategy called “Buckets of Money.” P claimed D used misleading slideshow presentations to deceive prospective clients. ALJ Cameron Elliot was to adjudicate the case. After nine days of testimony and argument, Judge Elliot found that D had violated the Act and imposing sanctions, including civil penalties of $300,000 and a lifetime bar from the investment industry. Judge Elliot made factual findings about only one of the four ways that P thought D’s slideshow misled investors. P remanded for factfinding on the other three claims, explaining that an ALJ’s “personal experience with the witnesses” places him “in the best position to make findings of fact” and “resolve any conflicts in the evidence.” Judge Elliot then made additional findings of deception and issued a revised initial decision, with the same sanctions. D appealed. D argued that Judge Elliot had not been constitutionally appointed. D argued that P’s ALJs are “Officers of the United States” and thus subject to the Appointments Clause. Only the President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.” P had left the task of appointing ALJs, including Judge Elliot, to P staff members. P held they were “mere employees”-officials with lesser responsibilities who fall outside the Appointments Clause’s ambit. The Court of Appeals agreed. D then petitioned for rehearing en banc. The Court of Appeals granted that request and heard argument in the case. The ten members of the en banc court divided evenly, resulting in a per curiam order denying D’s claim. That decision conflicted with one from the Court of Appeals for the Tenth Circuit. The Supreme Court granted certiorari.