On June 26, 2017, the en banc D.C. Circuit was equally divided on the question of whether SEC administrative law judges (“ALJs”) are “inferior officers.” This leaves intact the D.C. Circuit panel decision in Lucia which held that SEC ALJs are not officers and do not have to be appointed by the President. … Continue Reading
On May 24, 2017, the US Court of Appeals for the D.C. Circuit (D.C. Circuit) held oral argument in the PHH case, which we have blogged about extensively. The constitutionality of the CFPB’s structure was the central issue at the oral argument, occupying the vast majority of the time and the judges’ questions.… Continue Reading
On Friday, PHH filed its opening en banc brief with the D.C. Circuit in the rehearing of its appeal of Director Cordray’s June 2015 decision that affirmed an administrative law judge’s (ALJ) recommended decision concluding PHH had violated RESPA and increased the ALJ’s disgorgement award from over $6.4 million to over $109 million. … Continue Reading
The D.C. Circuit has entered an order granting the CFPB’s petition for rehearing en banc in the PHH case. Because the order was issued per curiam, it does not indicate which of the active judges voted to grant the petition but only indicates that Chief Judge Garland did not participate.
The order vacates the panel’s October 2016 judgment, sets a briefing schedule, and sets May 24, 2017 as the date for oral argument. … Continue Reading
Just before year-end, the U.S. Court of Appeals for the Tenth Circuit, in Bandimere v. United States Securities and Exchange Commission, set aside an SEC decision finding the petitioner liable for violating various securities law on the grounds that the SEC’s administrative law judge (ALJ) who conducted the proceeding was unconstitutionally appointed. … Continue Reading
A challenge to the constitutionality of the SEC’s use of administrative law judges (ALJ) was rejected by the U.S. Court of Appeals for the D.C. Circuit. In Raymond J. Lucia Companies, Inc. et al. v. Securities and Exchange Commission, the petitioners contended that the SEC’s decision imposing sanctions for violations of the Investment Advisors Act should be vacated because the ALJ rendering the initial decision was an “inferior Officer” who, pursuant to the Appointments Clause of Article II of the U.S.… Continue Reading