D.C. Circuit Review – Reviewed: SEC ALJs = SCOTUS-Bound

by Aaron Nielson — Monday, June 26, 2017@Aaron_L_Nielson

The D.C. Circuit just issued an unusual order in the ongoing saga of Raymond J. Lucia Companies, Inc. v. SEC. I won’t repeat the full background here; this post already does the trick. The dispute is whether SEC administrative law judges are “inferior officers” for purposes of Article II. The Tenth Circuit has held that they are (meaning their manner of appointment is unconstitutional); the D.C. Circuit has held that they are not. Last month, the en banc D.C. Circuit heard oral argument on the question.

Today, the Court issued the following order*:

This cause came on to be heard on the petition for review of an order of the Securities & Exchange Commission and was argued by counsel. On consideration thereof, it is ORDERED and ADJUDGED that the petition for review is denied by an equally divided court. See D.C. Cir. Rule 35(d).

Sometimes it is hard to know what the Supreme Court will do. Here, however, I’ll make a confident prediction: The Supreme Court will grant cert. The Tenth Circuit ruled against the government on a constitutional question, and the en banc D.C. Circuit is evenly divided. That means certiorari.

* Note, “Chief Judge Garland did not participate in this matter.”

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

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One thought on “D.C. Circuit Review – Reviewed: SEC ALJs = SCOTUS-Bound

  1. Andy Patterson

    A 5-5 split without Garland. Presumably Henderson, Brown, Griffith and Kavanaugh were solidly on Lucia’s side. That leaves Rogers, Tatel, Srinivasan, Millett, Pillard, and Wilkins. Who was the remaining Democrat-appointed judge who joined those 4?

    Reply

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