Lucia’s Aftermath: ALJ and AJ Job Security and Independence (On-Demand CLE)

    Lucia’s Aftermath: ALJ and AJ Job Security and Independence (On-Demand CLE)
    CLE 90 min

    Lucia’s Aftermath: ALJ and AJ Job Security and Independence (On-Demand CLE)

    Learn about Lucia's ramifications, such as, are administrative judges and non-adjudicator executive employees inferior officers? Are ALJ removal protections unconstitutional and, if so, is there any way to prevent the dismantling of the administrative state? What are the implications of the hiring practices? Find out what the Supreme Court held in Lucia and what that holding may mean for your practice and personal situation.

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    When you light fireworks, you look forward to the ensuing explosion. Sometimes, however, all you get is a limp fizzle. Such was the outcome of the highly anticipated case of Lucia v. SEC. That case resolved a potentially game-changing issue: whether SEC ALJs were inferior officers. The outcome was hardly surprising, especially given the solicitor general's decision to switch sides after Lucia's petition was filed in the Supreme Court. Yet the case fizzled for two reasons.

    First, the majority decided the case on stare decisis grounds and very narrowly. Specifically, the majority refused to clarify the "significant authority" element of officer status. As a result, we have no idea how broadly the decision will apply.

    Second, while the immediate effects of Lucia will be on the appointment process, a more important issue remains: whether the multiple for-cause removal limitations on SEC ALJs specifically, and on all ALJs generally, violate the U.S. Constitution. Freytag v. Commissioner, 501 U.S. 868 (1991 ), had held that they did in the context of executive, inferior officers. But what about ALJs and other executive officers? The Lucia majority appropriately refused to address the issue, but there can be little doubt that it will be back before the Court.

    Lastly, after Lucia was decided, the President issued an executive order removing the Office of Personnel Management (OPM) from the ALJ selection process. While the OPM hiring process was in need of change, is the new process optimal and valid, in light of 5 U.S.C. sec. 5372, which gives OPM the power to determine who is qualified to be an ALJ. OPM has issued rules, which have not yet been amended in anyway.

    Product Details

    Panelists

    Jennifer Mascott, Linda D Jellum, Mark Andrew Perry, Richard James Pierce Jr

    Sponsors

    Section of Administrative Law and Regulatory Practice

    Product Code

    CEAL18111OLC

    Duration

    90

    Publication Date

    2/11/2018 12:00:00 AM

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