U.S. Supreme Court debates status of SEC’s in-house judges

The Supreme Court considered bolstering the president’s power over federal agencies in a clash over the constitutional status of the in-house judges who handle complaints at the Securities and Exchange Commission.

On Monday, the justices heard an appeal from Raymond Lucia, who was fined $300,000 and barred from working as an investment adviser after an SEC judge found he misled prospective clients with his “Buckets of Money” retirement plan.

Mr. Lucia, with the support of the Trump administration, contends the administrative law judge who handled his case was appointed in violation of the Constitution. A victory for Mr. Lucia could open those judges, and others across the federal government, to being fired for issuing rulings that clash with administration priorities.

Chief Justice John Roberts cast the dispute as one that would bring “political accountability” to judges who operate within the federal bureaucracy. Justice Stephen Breyer said it could mean “goodbye to the independence” of agency judges.

The dispute could affect more than 100 cases currently at the SEC, along with a dozen that are on appeal in the federal courts. It also could upend administrative hearing systems at other government agencies, including the Federal Deposit Insurance Corp. and the Consumer Financial Protection Bureau, which have similar systems for appointing what are known as administrative law judges.

‘Officers,’ Not Employees

At issue is whether SEC judges are “officers,” and not mere employees, meaning the Constitution requires them to be appointed by the president, a department head or a court. The “officer” designation could also make it easier for the president’s political appointees to fire such judges, though the high court might not directly decide that issue.

Mr. Lucia’s lawyer, Mark Perry, told the justices that a victory for his client would have a limited impact, affecting about 150 judges. Answering questions from potential swing Justice Anthony Kennedy, Mr. Perry said his argument wouldn’t affect the thousands of judges who handle Social Security claims but don’t have the same “package of powers” as their counterparts at the SEC.

The SEC’s judges were selected by the chief judge and approved by the commission’s personnel office. The commission has five administrative law judges, including the chief judge.

The Trump administration is taking the unusual step of backing Mr. Lucia at the high court and arguing that the SEC’s appointment process for judges is unconstitutional. The administration, however, disagrees with Mr. Lucia about the practical implications of the constitutional issue, saying the commission has retroactively fixed the problem by ratifying the judges’ appointments itself.

Anton Metlitsky, a private lawyer appointed by the Supreme Court to defend the SEC’s appointment process, told the justices that the commission’s judges don’t have enough authority to warrant the “officer” designation. He said the SEC must issue a formal order before any decision by an administrative law judge kicks in.

Mr. Lucia, now 68, wowed audiences with presentations showing how his investment strategy would have protected nest eggs in the booms and busts of the 1960s and ’70s. The SEC said he used fake data to mislead investors.

In a recent interview, Mr. Lucia said the SEC found no victims and held his Buckets of Money presentation to a legal standard that didn’t exist.

“A federal judge would have thrown this out,” he said. “They would have said, ‘Wait a minute, where’s the proof that this person has misled someone?’”

The case is Lucia v. SEC, 17-130.

(More: Supreme Court review of SEC judges could roil pending cases)

Related Topics: Securities and Exchange Commission