An issue barreling toward the U.S. Supreme Court made an en banc pit stop at a federal appeals court in Washington, D.C., where judges heard oral arguments on a constitutional challenge targeting the SEC's administrative law judges.

The U.S. Court of Appeals for the D.C. Circuit didn't tip its hand Wednesday but seemed leery of upsetting the current system of ALJs. The case, Lucia v. Securities and Exchange Commission, asks whether the ALJs are unconstitutionally hired.

After Lucia, the court heard another round of arguments en banc in a case challenging a different agency, the Consumer Financial Protection Bureau. That case focused on whether the CFPB's leadership structure, which features a single director, violates the Constitution.

The court's decision in the Securities and Exchange Commission case, and any subsequent decision from the high court, could broadly impact how the judiciary views the authority of all ALJs throughout the government.

So what is this case about, and why does it matter? Here's a rundown:

How did this all start?

Plaintiff Raymond J. Lucia is an investment adviser, author and radio host. The SEC barred him for life from the industry in 2015 after ruling that he fraudulently promoted his “Buckets of Money” investment strategy. Lucia asked the D.C. Circuit to review the decision last year, arguing the court should vacate the ruling because the SEC administrative law judge who heard his case was unconstitutionally hired.

Lucia argued administrative law judges are “inferior officers” under the Constitution's appointments clause, as opposed to employees. The clause states that inferior officers must be appointed by the president, agency or department heads, or the courts.

Currently, SEC ALJs are hired by the commission's Office of Administrative Law Judges, which picks from a pool of candidates submitted by the Office of Personnel Management.

What were the key questions Wednesday?

The court is limited to addressing two questions: Whether the ALJ in Lucia's case is an inferior officer under the appointments clause of Article II in the Constitution, and whether the court should overrule its precedent in Landry v. FDIC.

Landry controlled the D.C. Circuit's ruling against Lucia last summer. Landry said that if ALJs are not making final decisions, they are not officers.

What were the key arguments?

The Supreme Court's 1976 decision in Buckley v. Valeo dictates that every government official whose position is “established by law” and who exercises “significant authority pursuant to the laws of the United States” is an officer under the appointments clause.

The government, represented by Mark Stern of the Justice Department's Civil Division, argued that because the commission can change any ALJ determination, they do not issue final decisions and they do not have “significant authority.”

Gibson, Dunn & Crutcher's Mark Perry argued for Lucia. He contended that the lack of finality in the ALJ decisions does not disqualify them from the “officer” designation. ALJs exercise significant authority under federal securities laws and regulations because they can administer oaths, order depositions, impose sanctions for parties' conduct during hearings and issue subpoenas.

ALJs cannot enforce those subpoenas, though.

What did the judges focus on?

The judges honed in on what should be the “bright line” test to determine if the commission's ALJs are officers, and how much authority they have.

The first question for Perry, from Judge Robert Wilkins, who wanted to know what the court should consider when deciding if an ALJ is an officer: The statute that delegates their authority, the regulations the agency promulgates, their actual practices, or some mixture of each?

While all three matter, Perry said the statute is most important. He pointed to the Administrative Procedure Act, which says adversarial proceedings can only be heard by three categories of “officers.” Those are agencies, members of agencies, or administrative law judges.

Judge Cornelia Pillard, who was on the three-judge panel that originally ruled against Lucia, pressed Perry, noting that the APA's use of “officer” might not refer to the term in the context of the appointments clause. She asked if it was true that the commission itself had to enter the final order.

Perry replied that the commission exercises deferential review to factual questions, and that if the commission does not review an ALJ decision, it becomes the official decision.

Judge Sri Srinivasan had the first question for Stern. Is there anything that the ALJs can do without the possibility of the commission's review?

Stern replied that no, there's not. Stern emphasized that every decision an ALJ makes is subject to review by the commission.

Several judges pushed Stern to name another quality that would make ALJs officers besides the finality of their decisions. After some dodges, he eventually said it would be the ability to bind parties to a decision, which ALJs can't do.

What are the consequences of this case?

This was an issue the judges were concerned about Wednesday. Several asked if the case would cover other types of ALJs in other agencies if the court sides with Lucia.

Neither attorney wanted to touch that issue, but Perry stressed it shouldn't matter what the consequences are. He said the judges should instead focus on the Constitutional question.

It's also possible that if the case goes to the Supreme Court, and the court rules for Lucia, thousands of ALJ orders could be rendered moot.

Have other courts ruled on this?

The 10th Circuit ruled last year in a similar case that the ALJs are officers. The court said that under the Supreme Court's 1991 decision in Freytag v. Commissioner of Internal Review, it doesn't matter that ALJs don't have final review, and that their duties show they exercised significant authority. The 10th Circuit denied an en banc rehearing earlier this month.

The 10th Circuit, in Bandimere v. SEC, criticized the D.C. Circuit's reliance on Landry when ruling against Lucia.

During Wednesday's hearing, several judges brought up the 10th Circuit dissent penned by two judges in the denial of the en banc rehearing. In it, Judges Carlos Lucero and Nancy Moritz wrote that the majority opinion “will have an overwhelming impact on the fundamental structure of the administrative agencies and the administrative process.”

What's next?

It will likely be months before the D.C. Circuit releases an opinion. Because the court reheard the case en banc, it can overturn precedent. Whatever decision is made, it will likely control similar cases going forward.

It's also likely that the issue ends up at the Supreme Court.

Indeed, Perry has publicly said he will appeal to the high court if he loses.

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