Last week, the United States Court of Appeals for the 10th Circuit ruled that a decision by a Securities and Exchange Commission administrative law judge was unconstitutional.
The 10th Circuit’s decision in David V. Bandimere v. SEC is the latest to address the constitutional standing of the SEC’s five career administrative judges.
It also creates a circuit split, which some experts say will invite a review by the Supreme Court on the matter. In August of 2016, the District of Columbia Court of Appeals unanimously upheld the constitutionality of the SEC’s administrative law judges in a separate SEC decision.
At issue is whether the SEC’s administrative judges are mere employees of a federal agency, or whether the extent of their power makes them “inferior officers” of the federal government. The latter distinction requires a presidential, court, or agency-head appointment under the Appointments clause of the U.S. Constitution.
Currently, the SEC’s administrative judges are not subject to the Constitution’s Appointment clause.
In Raymond J. Lucia Cos., Inc. v SEC, the D.C. Circuit concluded that SEC’s administrative judges are employees, and not in need of an appointment to carry out their duties. That decision was based on the fact that a decision by the Commission’s internal judges can be appealed for review by the SEC’s presidentially appointed commissioners.
The 10th Circuit’s December ruling addressed the same question, albeit in a different decision rendered by an SEC administrative judge.
That appellate court ruled that the SEC’s judges act as inferior officers, based on the extent of their authority. As such, they require presidential, court, or agency appointment to execute their authority, according to the 10th Circuit.
The 10th Circuit’s decision relied on a 1991Supreme Court ruling in Freytag v. Commissioner of Internal Revenue.
In that case, the Supreme Court ruled that special trial judges in IRS tax courts are inferior officers, and are subject to the Constitution’s Appointment clause.
The December decision in the 10th Circuit did not consider the merits in the original allegations brought by the SEC against the defendant.
Rather, it limited its opinion to the question of whether or not SEC’s administrative judges require compliance with the Constitution’s Appointment clause.
“Because the SEC ALJ [administrative law judge] was not constitutionally appointed, he held his office in violation of the Appointments Clause,” the 10th circuit ruled in a two-to-one decision.
Senior Judge Monroe McKay, a 1977 President Carter appointee to 10th Circuit, disagreed with the majority on legal merits.
In his dissent, McKay expressed concern that the 10th Circuit decision rescinding the constitutional authority of the SEC’s administrative judge will open a Pandora’s box, and effectively invalidate “thousands” of previous administrative actions by the SEC.
That would allow countless “malefactors who have abused the financial system to escape responsibility,” wrote McKay in his dissent.
The SEC has authority to pursue civil action against alleged violators of securities laws through internal administrative courts.
For fiscal year 2016, SEC’s judges issued 170 initial decisions, held eleven hearings, and ordered approximately $12.4 million in disgorgement and approximately $14.5 million in civil penalties, according to the Commission’s website.
In 2015, a Wall Street Journal investigation found that between 2010 and 2015, the SEC won 90 percent of cases heard by its own judges, compared to a 69 percent success rate in cases heard in federal courts.
That report alleged bias within the SEC’s Office of Administrative Law Judges, citing the claims of a retired SEC judge. A subsequent internal investigation by the SEC’s inspector general found the claims in the Journal’s reporting were unfounded.
If or when the Supreme Court rules on the constitutionality of the SEC’s administrative law judges, it will no doubt have to consider Judge McKay’s concerns regarding past rulings.
Below is just a snapshot of the cases that have come under review in the administrative courts in the past couple of months. They represent a drop in the bucket of the thousands of past decisions the 10th Circuit’s ruling has called into question.
1. Christopher A. T. Pedras
In December, an Initial Decision from the SEC barred Pedras from the securities industry.
According to the decision, Pedras, as a U.S. citizen, began offering and selling unregistered securities in 2010. He raised over $5.6 million from more than 50 U.S. investors to fund a Ponzi scheme, promising returns of up to 8 percent per month by investing in gold contracts. Unable to meet his obligations, he initiated another scheme, this time promising investors they could almost double their investment in a New Zealand kidney dialysis company overnight.
Neither investment program was real. Pedras made off with $2 million in investors’ cash. He was recently extradited from Tonga to face criminal charges. He currently makes his home in a Los Angeles-based federal penitentiary.
He has been ordered to pay over $5.2 million in disgorgement, interest, and civil penalties.
2. Anthony Tyrone Jones, Jr.
An SEC judge barred Jones Jr. from the securities industry in December, after he previously pled guilty to wire fraud.
Representing himself as an investment advisor, Jones Jr. convinced a woman to invest $22,000 in McDonalds stock. He used the money for his “personal enjoyment,” according to administrative court documents.
Later, he represented himself as an FBI agent in a separate act of fraud. Arrested for that crime, Jones Jr. made bail, and proceeded to cut of his electronic monitoring bracelet. He remained a fugitive for two years.
3. Robert Seibert, aka “John Grey”
Seibert, a recidivist thief and felon, raised more than half a million dollars from over 40 seniors in several states.
He lied about being a broker, promising the seniors they would double their investments. He used the name John Grey to conceal his criminal record, and paid for travel and outstanding child support with the investors’ assets.
4. Daniel Christian Stanley Powell
In November, an administrative judge sanctioned Powell at the behest of SEC’s Division of Enforcement. He is barred from associating with any broker-dealer, investment advisor, or securities dealer.
From 2006 to 2011, he was the CEO of a broker-dealer he founded. In 2009 he launched a separate real estate investment company, offering lucrative opportunities in gold and coal assets.
Powell told investors that their cash would return 15 percent, and that their investments were backed by life insurance policies. He used independent contractors to solicit investors, paying commissions up to 5 percent of invested assets.
He would rake in over $5 million in investors’ funds, paying out about $90,000 in returns. Powell rifled through the remaining cash in a two-year period.
In 2014, a federal court in California convicted Powell on 13 counts. He was sentenced to 121 months in prison, and ordered to pay $4.4 million in restitution.
5. Aegis Capital and Circle One Wealth Management
These two registered investment advisories were owned by the same parent company. Both “grossly” overestimated assets under management and the number of clients they served in ADV filings.
“Violating one’s fiduciary duty by falsely reporting information that any reasonable investor would find material—claiming to have significantly more assets under management than was actually the case—alone makes Respondents’ conduct egregious,” wrote an SEC administrative judge in November of 2016.
Circle One is no longer in business. The SEC judge censured Aegis.