`Buckets of Money' Case Tests Power of SEC Judges in Trump Era

(Bloomberg) -- The U.S. 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.

The justices Monday 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.

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 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 could bring "political accountability" to judges who operate within the federal bureaucracy. But 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.

Lucia’s lawyer, Mark Perry, told the justices that a victory for his client would have a limited impact, affecting about 150 judges around the federal government. Answering questions from potential swing Justice Anthony Kennedy, 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.

Roberts said that those judges currently are part of the "administrative bureaucracy," insulated from the type of political accountability the constitutional framers intended.

"If the individual were an officer, he would have to be appointed by the commission, and people would know who was responsible for whatever conduct or misconduct or decisions he would take," Roberts said.

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

Deputy Solicitor General Jeffrey Wall said SEC judges qualify as "officers" because they adjudicate disputes, impose sanctions on private parties and have the power to bind the federal government.

Breyer said that approach would mean "goodbye to the merit civil service at the higher levels and goodbye to the independence of ALJs."

Ratcheting Down

Wall also drew resistance from Justice Elena Kagan, who pointed to a 1946 law that insulated administrative law judges from political influence.

"You want to ratchet that down," Kagan said. "Isn’t that interfering with decisional independence?"

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.

Kagan questioned whether Metlitsky’s position could be squared with the Supreme Court’s 1991 Freytag v. Commissioner decision, which declared special trial judges of the U.S. Tax Court to be "officers."

"It’s just so hard to get around this -- the commonalities of these judges and the judges in Freytag," Kagan said.

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, 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," Lucia 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.

©2018 Bloomberg L.P.

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