                                                                               FILED
                                                                   United States Court of Appeals
                                 PUBLISH                                   Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                              TENTH CIRCUIT                            December 27, 2016

                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
 DAVID F. BANDIMERE,

       Petitioner,

 v.
                                                            No. 15-9586
 UNITED STATES SECURITIES AND
 EXCHANGE COMMISSION,

      Respondent.
 _____________________________

 IRONRIDGE GLOBAL IV, LTD;
 IRONRIDGE GLOBAL PARTNERS,
 LLC,

       Amici Curiae.


      PETITION FOR REVIEW OF AN ORDER OF THE SECURITIES AND
                      EXCHANGE COMMISSION
                          (SEC No. 3-15124)


David A. Zisser, Jones & Keller P.C., Denver, Colorado, appearing for Petitioner.

Lisa K. Helvin, Senior Counsel, Securities and Exchange Commission, Washington, DC,
and Mark B. Stern, Attorney, Appellate Staff Civil Division, United States Department of
Justice, Washington, DC (Benjamin C. Mizer, Principal Deputy Assistant Attorney
General; Beth S. Brinkmann, Deputy Assistant Attorney General; Mark R. Freeman,
Melissa N. Patterson, Megan Barbero, Daniel Aguilar, and Tyce R. Walters, Attorneys,
Appellate Staff, Civil Division, United States Department of Justice, Washington, DC;
Anne K. Small, General Counsel; Michael A. Conley, Solicitor; and Dominick V. Freda,
Senior Litigation Counsel, Securities and Exchange Commission, Washington, DC, with
them on the brief), appearing for Respondent.
Paul D. Clement, Jeffrey M. Harris, and Christopher G. Michel, Bancroft PLLC,
Washington, DC, filed an amicus curiae brief for Ironridge Global Partners, LLC.


Before BRISCOE, MCKAY, and MATHESON, Circuit Judges.


MATHESON, Circuit Judge.


       When the Framers drafted the Appointments Clause of the United States

Constitution in 1787, the notion of administrative law judges (“ALJs”) presiding at

securities law enforcement hearings could not have been contemplated. Nor could an

executive branch made up of more than 4 million people,1 most of them employees.

Some of them are “Officers of the United States,” including principal and inferior

officers, who must be appointed under the Appointments Clause. U.S. Const. art. II, § 2,

cl. 2. In this case we consider whether the five ALJs working for the Securities and

Exchange Commission (“SEC”) are employees or inferior officers.

       Based on Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991), we

conclude the SEC ALJ who presided over an administrative enforcement action against

Petitioner David Bandimere was an inferior officer. Because the SEC ALJ was not

constitutionally appointed, he held his office in violation of the Appointments Clause.



       1
         Office of Pers. Mgmt., Historical Federal Workforce Tables,
https://perma.cc/LZ7P-EPAG. The first census in 1790 counted 3.9 million inhabitants in
the United States. U.S. Census Bureau, 1790 Overview, https://perma.cc/EYF2-4K2L.
The Perma.cc links throughout this opinion archive the referenced webpages.

                                           -2-
Exercising jurisdiction under 15 U.S.C. §§ 77i(a) and 78y(a)(1), we grant Mr.

Bandimere’s petition for review.

                                   I. BACKGROUND

       The SEC is a federal agency with authority to bring enforcement actions for

violations of federal securities laws. 15 U.S.C. §§ 77h-1, 78d, 78o, 78u-3. An

enforcement action may be brought as a civil action in federal court or as an

administrative action before an ALJ. In 2012, the SEC brought an administrative action

against Mr. Bandimere, a Colorado businessman, alleging he violated various securities

laws. An SEC ALJ presided over a trial-like hearing. The ALJ’s initial decision

concluded Mr. Bandimere was liable, barred him from the securities industry, ordered

him to cease and desist from violating securities laws, imposed civil penalties, and

ordered disgorgement. David F. Bandimere, SEC Release No. 507, 2013 WL 5553898,

at *61-84 (ALJ Oct. 8, 2013).

       The SEC reviewed the initial decision and reached a similar result in a separate

opinion. David F. Bandimere, SEC Release No. 9972, 2015 WL 6575665 (Oct. 29,

2015). During the SEC’s review, the agency addressed Mr. Bandimere’s argument that

the ALJ was an inferior officer who had not been appointed under the Appointments

Clause. Id. at *19. The SEC conceded the ALJ had not been constitutionally appointed,

but rejected Mr. Bandimere’s argument because, in its view, the ALJ was not an inferior

officer. Id. at *19-21.

       Mr. Bandimere filed a petition for review with this court under 15 U.S.C. §§ 77i(a)
                                           -3-
and 78y(a)(1), which allow an aggrieved party to obtain review of an SEC order in any

circuit court where the party “resides or has his principal place of business.” In his

petition, Mr. Bandimere raised his Appointments Clause argument and challenged the

SEC’s conclusions regarding securities fraud liability and sanctions.2

                                    II. DISCUSSION

       The SEC rejected Mr. Bandimere’s argument that the ALJ presided over his

hearing in violation of the Appointments Clause. We review the agency’s conclusion on

this constitutional issue de novo. Hill v. Nat’l Transp. Safety Bd., 886 F.2d 1275, 1278

(10th Cir. 1989). We first explain why we must address Mr. Bandimere’s constitutional

argument and then address its merits.

                               A. Constitutional Avoidance

       Federal courts avoid unnecessary adjudication of constitutional issues. City of

Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 294 (1982). Here, we must consider the

Appointments Clause issue.


       2
         Other SEC respondents have attacked the validity of SEC ALJs by filing
collateral lawsuits attempting to enjoin administrative enforcement actions. Circuit
courts have rejected these attempts, holding that federal courts lacked jurisdiction
because the respondents had failed to raise and exhaust the argument in the
administrative proceedings. See, e.g., Hill v. SEC, 825 F.3d 1236 (11th Cir. 2016); Tilton
v. SEC, 824 F.3d 276 (2d Cir. 2016); Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir. 2015); Bebo
v. SEC, 799 F.3d 765 (7th Cir. 2015). Here, Mr. Bandimere did not file a collateral
lawsuit. He instead raised his constitutional argument before the SEC, which rejected it.
We therefore have jurisdiction to address the Appointments Clause issue as properly
presented in Mr. Bandimere’s petition for review.


                                            -4-
       In its opinion, the SEC concluded Mr. Bandimere committed two securities fraud

violations and two securities registration violations.3 In his petition for review, Mr.

Bandimere challenges the SEC’s findings of securities fraud liability as arbitrary and

capricious, but he does not challenge the registration violations on these non-

constitutional grounds. He attacks the SEC’s opinion as a whole, however, including

both his securities fraud and registration liability, based on the Appointments Clause.4

Because the sole argument attacking his registration liability is constitutional, we cannot

avoid the Appointments Clause question. And because resolving this question relieves

Mr. Bandimere of all liability, we need not address his remaining arguments on securities

fraud liability.

                            B. Appointments Clause Overview

       The Appointments Clause states:

       [The President] shall nominate, and by and with the Advice and Consent of
       the Senate, shall appoint Ambassadors, other public Ministers and Consuls,
       Judges of the supreme Court, and all other Officers of the United States,
       whose Appointments are not herein otherwise provided for, and which shall

       3
         Specifically, the SEC held him liable for (1) securities fraud under Section 17(a)
of the Securities Act of 1933 (“Securities Act”), Section 10(b) of the Securities and
Exchange Act of 1934 (“Exchange Act”), and 17 C.F.R. § 240.10b-5; (2) failure to
register as a broker before selling securities under Exchange Act Section 15(a); and (3)
failure to register the securities he was selling under Securities Act Sections 5(a) and (c).
SEC Release No. 9972, 2015 WL 6575665, at *2, *4, *7, *17.
       4
          Mr. Bandimere’s petition states, “The [SEC’s] Opinion must be vacated because
it resulted from a process in which an improperly appointed inferior officer played an
integral role.” Aplt. Br. at 18; see also id. at 10, 13.


                                            -5-
       be established by Law: but the Congress may by Law vest the Appointment
       of such inferior Officers, as they think proper, in the President alone, in the
       Courts of Law, or in the Heads of Departments.

U.S. Const. art. II, § 2, cl. 2.

       The Appointments Clause embodies both separation of powers and checks and

balances. Ryder v. United States, 515 U.S. 177, 182 (1995) (“The Clause is a bulwark

against one branch aggrandizing its power at the expense of another branch . . . .”).5 By

defining unique roles for each branch in appointing officers, the Clause separates power.

It also checks and balances the appointment authority of each branch by providing (1) the

President may appoint principal officers only with Senate approval and (2) Congress may

confer appointment power over inferior officers to the President, courts, or department

heads but may not itself make appointments.6


       5
        James Madison argued in Federalist Nos. 48 and 51 that checks and balances are
needed to sustain a workable separation of powers. The Federalist Nos. 48 and 51, at
308, 318-19 (James Madison) (Clinton Rossiter ed., 1961); see also M.J.C. Vile,
Constitutionalism and the Separation of Powers 153, 159-60 (1967).
       6
         In Federalist No. 76, Alexander Hamilton explained the Senate-approval
requirement “would be an excellent check upon a spirit of favoritism in the President, and
would tend greatly to prevent the appointment of unfit characters from State prejudice,
from family connection, from personal attachment, or from a view to popularity.” The
Federalist No. 76, at 456 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
        In Weiss v. United States, 510 U.S. 163 (1994), the Supreme Court stated the
Framers structured “an alternative appointment method for inferior officers” to promote
“accountability and check governmental power: any decision to dispense with
Presidential appointment and Senate confirmation is Congress’s to make, not the
President’s, but Congress’s authority is limited to assigning the appointing power to the
highly accountable President or the heads of federal departments, or, where appropriate,
to the courts of law.” 510 U.S. at 187.

                                            -6-
       The Appointments Clause also promotes public accountability by identifying the

public officials who appoint officers. Edmond v. United States, 520 U.S. 651, 660

(1997). And it prevents the diffusion of that power by restricting it to specific public

officials. Ryder, 515 U.S. at 182; Freytag, 501 U.S. at 878, 883. “The Framers

understood . . . that by limiting the appointment power, they could ensure that those who

wielded it were accountable to political force and the will of the people.” Freytag, 501

U.S. at 884.

                              C. Inferior Officers and Freytag

1. Inferior Officers and the Supreme Court

       The Supreme Court has defined an officer generally as “any appointee exercising

significant authority pursuant to the laws of the United States.” Buckley v. Valeo, 424

U.S. 1, 126 (1976) (per curiam). The term “inferior officer” “connotes a relationship

with some higher ranking officer or officers below the President: Whether one is an

‘inferior’ officer depends on whether he has a superior.” Edmond, 520 U.S. at 662.7


       7
         Other uses of “inferior” in the Constitution confirm the term speaks to a
hierarchical, subordinate-superior relationship. The word appears once in Article I and
twice in Article III, each time describing courts “inferior” to the Supreme Court. U.S.
Const. art. I, § 8, cl. 9; id. art. III, § 1; see also Akhil Reed Amar, Intratextualism, 112
Harv. L. Rev. 747, 805-07 (1999) (discussing the use of “inferior” in Articles I, II, and
III).
       Statements from Alexander Hamilton and James Madison also indicate “inferior”
means subordinate. In Federalist No. 81, Hamilton described inferior courts as those
“subordinate to the Supreme.” The Federalist No. 81, at 484 (Alexander Hamilton)
(Clinton Rossiter ed., 1961). In the brief debate about the Excepting Clause at the
Federal Constitutional Convention in 1787, Madison “mention[ed] (as in apparent
                                                                                  Continued . . .
                                                   -7-
       This description of “inferior” may aid in understanding the distinction between

principal and inferior officers. But we are concerned here with the distinction between

inferior officers and employees. Like inferior officers, employees—or “lesser

functionaries”—are subordinates. Buckley, 424 U.S. at 126 n.162.

       Justice Breyer has provided this summary of the different ways the Supreme Court

has described inferior officers:

       Consider the [Supreme] Court’s definitions: Inferior officers are, inter
       alia, (1) those charged with “the administration and enforcement of the
       public law,” Buckley, 424 U.S. at 139; (2) those granted “significant
       authority,” id. at 126; (3) those with “responsibility for conducting civil
       litigation in the courts of the United States,” id. at 140; and (4) those “who
       can be said to hold an office,” United States v. Germaine, 99 U.S. 508, 510
       (1879), that has been created either by “regulations” or by “statute,” United
       States v. Mouat, 124 U.S. 303, 307-08 (1888).

Free Enter. Fund v. PCAOB, 561 U.S. 477, 539 (2010) (Breyer, J., dissenting) (citation

style altered and some citations omitted).

       The list below contains examples of inferior officers drawn from Supreme Court

cases spanning more than 150 years:
______________________________________
Cont.

contrast to the ‘inferior officers’ covered by the provision) ‘Superior Officers.’”
Morrison v. Olson, 487 U.S. 654, 720 (1988) (Scalia, J., dissenting) (citing 2 The
Records of the Federal Convention of 1787 627-28 (M. Farrand ed., rev. ed. 1966)). He
also referred to “subordinate officers” in contradistinction to “principal officers” when
explaining the appointment power during the Virginia ratification convention. 3 The
Debates in the Several State Conventions on the Adoption of the Federal Constitution
409-10 (Jonathan Elliot ed., 2d ed. 1836); see also Tuan Samahon, Are Bankruptcy
Judges Unconstitutional? An Appointments Clause Challenge, 60 Hastings L.J. 233, 251
(2008) (discussing Madison’s remarks at the Virginia convention).

                                             -8-
            a district court clerk, In re Hennen, 38 U.S. (13 Pet.) 230, 258 (1839);

            an “assistant-surgeon,” United States v. Moore, 95 U.S. 760, 762 (1877);

            “thousands of clerks in the Departments of the Treasury, Interior, and the
             othe[r]” departments, Germaine, 99 U.S. at 511 (1878);

            an election supervisor, Ex parte Siebold, 100 U.S. 371, 397-98 (1879);

            a federal marshal, id. at 397;

            a “cadet engineer” appointed by the Secretary of the Navy, United States v.
             Perkins, 116 U.S. 483, 484-85 (1886);

            a “commissioner of the circuit court,” United States v. Allred, 155 U.S.
             591, 594-96 (1895);

            a vice consul temporarily exercising the duties of a consul, United States v.
             Eaton, 169 U.S. 331, 343 (1898);

            extradition commissioners, Rice v. Ames, 180 U.S. 371, 378 (1901);

            a United States commissioner in district court proceedings, Go-Bart
             Importing Co. v. United States, 282 U.S. 344, 352-54 (1931);

            a postmaster first class, Buckley, 424 U.S. at 126 (1976) (citing Myers v.
             United States, 272 U.S. 52 (1926));

            Federal Election Commission (“FEC”) commissioners, id.;

            an independent counsel, Morrison v. Olson, 487 U.S. 654, 671 (1988);

            Tax Court special trial judges, Freytag, 501 U.S. at 881-82 (1991); and

            military judges, Weiss v. United States, 510 U.S. 163, 170 (1994);
             Edmond, 520 U.S. at 666 (1997).8



      8
        See also Edmond, 520 U.S. at 661 (listing examples of inferior officers); Free
Enter. Fund, 561 U.S. at 540 (Breyer, J., dissenting) (listing examples of officers).

                                           -9-
       We think these examples are relevant and instructive. Although the Supreme

Court has not stated a specific test for inferior officer status, “[e]fforts to define [‘inferior

Officers’] inevitably conclude that the term’s sweep is unusually broad,” Free Enter.

Fund, 561 U.S. at 539 (Breyer, J., dissenting), and the Freytag opinion provides the

guidance needed to decide this appeal.

2. Freytag

       The question in Freytag was whether the Tax Court had authority to appoint

special trial judges (“STJs”) under the Appointments Clause. 501 U.S. at 877-92. As a

threshold matter, the Court addressed whether STJs were inferior officers or employees.

Id. at 880-82. That question strongly resembles the one we face here. In our view,

Freytag controls the result of this case.

       Under the then-applicable 26 U.S.C. § 7443A(b), the Tax Court could assign four

categories of cases to STJs. Id. at 873. For the first three categories, § 7443A(b)(1), (2),

and (3), “the Chief Judge [could] assign the special trial judge not only to hear and report

on a case but also to decide it.” Id. In other words, STJs could make final decisions in

those cases. But in the fourth category, § 7443A(b)(4), STJs lacked final decision-

making power: “the chief judge [could] authorize the special trial judge only to hear the

case and prepare proposed findings and an opinion. The actual decision then [was]

rendered by a regular judge of the Tax Court.” Id.

       The Tax Court assigned the petitioners’ case to the STJ under § 7443A(b)(4), the

fourth category, which did not allow STJs to enter final decisions. Id. at 871-73. The
                                             - 10 -
STJ issued a proposed opinion concluding the petitioners were liable, and the Tax Court

adopted it. Id. at 871-72.9 On appeal, the petitioners argued the STJs were inferior

officers under the Appointments Clause and that the chief judge of the Tax Court could

not appoint them because he was not the President, a court of law, or a department head.

Id. at 878. The government contended STJs were not inferior officers because they did

not have authority to enter a final decision in petitioners’ case. Id. at 881.

       The Court first expressly approved prior decisions from the Tax Court and the

Second Circuit that held STJs were inferior officers. Id. “Both courts considered the

degree of authority exercised by the special trial judges to be so ‘significant’ that it was

inconsistent with the classifications of ‘lesser functionaries’ or employees.” Id.

(discussing Samuels, Kramer & Co. v. Comm’r of Internal Revenue, 930 F.2d 975 (2d

Cir. 1991); First W. Gov’t Sec., Inc. v. Comm’r of Internal Revenue, 94 T.C. 549

(1990)).10


       9
        As discussed below, Ballard v. Commissioner of Internal Revenue, 544 U.S. 40
(2005), spelled out the STJs’ and Tax Court judges’ collaborative decision-making
process in which STJs and Tax Court judges jointly “worked over” STJs’ preliminary
“in-house drafts” to produce an opinion. 544 U.S. at 42.
       10
          In Samuels, the Second Circuit concluded STJs are inferior officers. 930 F.2d at
985. It stated:

       Although the ultimate decisional authority in cases under section
       7443A(b)(4) rests with the Tax Court judges, the special trial judges do
       exercise a great deal of authority in such cases. The special trial judges are
       more than mere aids to the judges of the Tax Court. They take testimony,
       conduct trials, rule on the admissibility of evidence, and have the power to
                                                                              Continued . . .
                                           - 11 -
       The Court then turned to the government’s argument that the STJs were

employees because they “lack[ed] authority to enter a final decision” under

§ 7443A(b)(4). Id. The Court said the argument “ignore[d] the significance of the duties

and discretion that special trial judges possess.” Id. First, the STJ position was

“established by Law.” Id. (quoting U.S. Const. art. II, § 2, cl. 2). Second, “the duties,

salary, and means of appointment for that office are specified by statute.” Id. “These

characteristics,” the Court stated, “distinguish special trial judges from special masters,

who are hired by Article III courts on a temporary, episodic basis, whose positions are

not established by law, and whose duties and functions are not delineated in a statute.”

Id. Third, STJs “perform more than ministerial tasks. They take testimony, conduct

trials, rule on the admissibility of evidence, and have the power to enforce compliance

with discovery orders. In the course of carrying out these important functions, the [STJs]
______________________________________
Cont.

       enforce compliance with discovery orders. Contrary to the contentions of
       the Commissioner, the degree of authority exercised by special trial judges
       is “significant.” They exercise a great deal of discretion and perform
       important functions, characteristics that we find to be inconsistent with the
       classifications of “lesser functionary” or mere employee.

Id. at 985-86 (quoting Buckley, 424 U.S. at 126).
        In First Western, the Tax Court concluded STJs are inferior officers: “Because
[they] may be assigned any case and may enter decisions in certain cases, it follows that
special trial judges exercise significant authority.” 94 T.C. at 557.
        Although a factor, final decision-making power was not the linchpin of the Tax
Court’s analysis. Id. And in any event, the Freytag Court endorsed the Second Circuit’s
and Tax Court’s analyses because they relied on “the degree of authority” STJs
possessed. Freytag, 501 U.S. at 881.

                                            - 12 -
exercise significant discretion.” Id. at 881-82. Accordingly, the Court held STJs were

inferior officers. Id.

       Next, the Court addressed a standing argument from the government. Id. at 882.

The government had conceded STJs act as inferior officers when hearing cases under

§ 7443A(b)(1), (2), and (3), but argued petitioners “lack[ed] standing to assert the rights

of taxpayers whose cases [were] assigned to [STJs] under [those three categories].” Id.

       The Court stated, “Even if the duties of [STJs] under [§ 7443A(b)(4)] were not as

significant as we and the two courts have found them to be, our conclusion would be

unchanged.” Id. (emphasis added). The Court explained that an inferior officer does not

become an employee because he or she “on occasion performs duties that may be

performed by an employee not subject to the Appointments Clause.” Id. “If a special

trial judge is an inferior officer for purposes of subsections (b)(1), (2), and (3), he is an

inferior officer within the meaning of the Appointments Clause and he must be properly

appointed.” Id. The Court thus rejected the government’s standing argument as “beside

the point.” Id.

       In the end, the Freytag majority held the Tax Court was a “Cour[t] of Law” with

authority to appoint inferior officers like the STJs. Id. at 890, 892. Justice Scalia’s

partial concurrence, joined by three other justices, agreed with the majority’s conclusion

regarding the STJs’ status: “I agree with the Court that a special trial judge is an ‘inferior

Office[r]’ within the meaning of [the Appointments Clause].” Id. at 901 (Scalia, J.,

concurring) (first alteration in original). Thus, a unanimous Supreme Court concluded
                                             - 13 -
STJs were inferior officers.

                                       D. SEC ALJs

       The SEC conceded in its opinion that its ALJs are not appointed by the President,

a court of law, or the head of a department. SEC Release No. 9972, 2015 WL 6575665,

at *19. The sole question is whether SEC ALJs are inferior officers under the

Appointments Clause. Under Freytag, we must consider the creation and duties of SEC

ALJs to determine whether they are inferior officers. 501 U.S. at 881-82.

       The APA created the ALJ position. 5 U.S.C. § 556(b)(3); see also Mullen v.

Bowen, 800 F.2d 535, 540 n.5 (6th Cir. 1986) (“[T]he ALJ’s position is not a creature of

administrative law; rather, it is a direct creation of Congress under the [APA].”). Section

556 of the APA describes the duties of the “presiding employe[e]” at an administrative

adjudication. 5 U.S.C. § 556. It states, “There shall preside at the taking of evidence . . .

(1) the agency; (2) one or more members of the body which comprises the agency; or

(3) one or more administrative law judges appointed under section 3105 of this title.” Id.

§ 556(b).

       Under 5 U.S.C. § 3105, “Each agency shall appoint as many administrative law

judges as are necessary for proceedings required to be conducted in accordance with

[5 U.S.C. §§ 556, 557].” Agencies hire ALJs through a merit-selection process

administered by the Office of Personnel Management (“OPM”), which places ALJs

within the civil service (i.e., the “competitive service”). 5 U.S.C. § 1302; 5 C.F.R.

§ 930.201. ALJ applicants must be licensed attorneys with at least seven years of
                                            - 14 -
litigation experience. 5 C.F.R. § 930.204; Office of Pers. Mgmt., Qualification Standard

for Administrative Law Judge Positions, https://perma.cc/2G7J-X5BW. OPM

administers an exam and uses the results to rank applicants. 5 C.F.R. § 337.101.

Agencies may select an ALJ from the top three ranked candidates.11 The SEC’s Chief

ALJ hires from the top three candidates subject to “approval and processing by the

[SEC’s] Office of Human Resources.” Notice of Filing at 2, Timbervest, LLC, File No.

3-15519, https://perma.cc/G8M2-36P3 (SEC Division of Enforcement filing in

administrative enforcement action). Once hired, ALJs receive career appointments, 5

C.F.R. § 930.204(a), and are removable only for good cause, 5 U.S.C. § 7521. Their pay

is detailed in 5 U.S.C. § 5372. The SEC currently employs five ALJs. Office of Pers.

Mgmt., ALJs by Agency, https://perma.cc/6RYA-VQFV.

      The SEC has authority to delegate “any of its functions” except rulemaking to its

ALJs. 15 U.S.C. § 78d-1(a). And SEC regulations task ALJs with “conduct[ing]

hearings” and make them “responsible for the fair and orderly conduct of the

proceedings.” 17 C.F.R. § 200.14. SEC ALJs “have the authority to do all things




      11
         See Vanessa K. Burrows, Cong. Res. Serv., Administrative Law Judges: An
Overview at 2 (2010), https://perma.cc/T8YY-EE7F; Robin J. Arzt et al., Fed. Admin.
Law Judge Found., Advancing the Judicial Independence and Efficiency of the
Administrative Judiciary: A Report to the President-Elect of the United States, 29 J.
Nat’l Ass’n Admin. L. Judiciary 93, 101 (2009).


                                          - 15 -
necessary and appropriate to discharge [their] duties.” 17 C.F.R. § 201.111.12 The table

below lists examples of those duties.

                         Duty                                    Provision(s)
 Administer oaths and affirmations                       5 U.S.C. § 556(c)(1)
                                                         17 C.F.R. § 200.14(a)(1)
                                                         17 C.F.R. § 201.111(a)
 Consolidate “proceedings involving a common             17 C.F.R. § 201.201(a)
 question of law or fact”
 “Determin[e]” the “scope and form of evidence,          17 C.F.R. § 201.326
 rebuttal evidence, if any, and cross-examination, if
 any”
 Enter default judgment                                  17 C.F.R. § 201.155
 Examine witnesses                                       17 C.F.R. § 200.14(a)(4)
 Grant extensions of time or stays                       17 C.F.R. § 201.161
 Hold prehearing conferences                             17 C.F.R. § 200.14(a)(6)
 Hold settlement conferences and require attendance of   5 U.S.C. § 556(c)(6)
 the parties                                             5 U.S.C. § 556(c)(8)
                                                         17 C.F.R. § 201.111(e)
 Inform the parties about alternative means of dispute   5 U.S.C. § 556(c)(7)
 resolution                                              17 C.F.R. § 201.111(k)
 Issue protective orders                                 17 C.F.R. § 201.322
 Issue, revoke, quash, or modify subpoenas               5 U.S.C. § 556(c)(2)
                                                         17 C.F.R. § 200.14(a)(2)
                                                         17 C.F.R. § 201.111(b)
                                                         17 C.F.R. § 201.232(e)
 Order and regulate depositions                          17 C.F.R. § 201.233
 Order and regulate document production                  17 C.F.R. § 201.230
 Prepare an initial decision containing factual findings 5 U.S.C. § 556(c)(10)
 and legal conclusions, along with an appropriate order 17 C.F.R. § 200.14(a)(8)
                                                         17 C.F.R. § 200.30-9(a)
                                                         17 C.F.R. § 201.111(i)
                                                         17 C.F.R. § 201.360


      12
         Many of the SEC regulations refer to the duties of the “hearing officer.” Under
17 C.F.R. § 201.101(a)(5), a “hearing officer” includes an ALJ. This opinion applies
only to SEC ALJs specifically and not to hearing officers generally.


                                          - 16 -
 Punish contemptuous conduct by excluding a person          17 C.F.R. § 201.180(a)
 from a deposition, hearing, or conference or by
 suspending a person from representing others in the
 proceeding
 Regulate the course of the hearing and the conduct of      5 U.S.C. § 556(c)(5)
 the parties and counsel                                    17 C.F.R. § 200.14(a)(5)
                                                            17 C.F.R. § 201.111(d)
 Reject deficient filings, order a party to cure            17 C.F.R. § 201.180(b), (c)
 deficiencies, and enter default judgment for failure to
 cure deficiencies

 Reopen any hearing prior to filing an initial decision     17 C.F.R. § 201.111(j)
 or prior to the fixed time for the parties to file final
 briefs with the SEC
 Rule on all motions, including dispositive and             5 U.S.C. § 556(c)(9)
 procedural motions                                         17 C.F.R. § 200.14(a)(7)
                                                            17 C.F.R. § 201.111(h)
                                                            17 C.F.R. § 201.220
                                                            17 C.F.R. § 201.250
 Rule on offers of proof and receive relevant evidence      5 U.S.C. § 556(c)(3)
                                                            17 C.F.R. § 200.14(a)(3)
                                                            17 C.F.R. § 201.111(c)
 Set aside, make permanent, limit, or suspend               17 C.F.R. § 200.30-9(b)
 temporary sanctions the SEC issues                         17 C.F.R. § 201.531
 Take depositions or have depositions taken                 5 U.S.C. § 556(c)(4)


                   E. SEC ALJs Are Inferior Officers Under Freytag

      Following Freytag, we conclude SEC ALJs are inferior officers under the

Appointments Clause. As the SEC acknowledges, the ALJ who presided over Mr.

Bandimere’s hearing was not appointed by the President, a court of law, or a department

head. He therefore held his office in conflict with the Appointments Clause when he

presided over Mr. Bandimere’s hearing.

      Freytag held that STJs were inferior officers based on three characteristics. Those

                                            - 17 -
three characteristics exist here: (1) the position of the SEC ALJ was “established by

Law,” Freytag, 501 U.S. at 881 (quoting U.S. Const. art. II, § 2, cl. 2); (2) “the duties,

salary, and means of appointment . . . are specified by statute,” id.; and (3) SEC ALJs

“exercise significant discretion” in “carrying out . . . important functions,” id. at 882.

       First, the office of the SEC ALJ was established by law. The APA established the

ALJ position. 5 U.S.C. § 556(b)(3). In addition, the Securities and Exchange Act of

1934 authorizes the SEC to delegate “any of its functions” with the exception of

rulemaking to ALJs,13 and 17 C.F.R. § 200.14, a regulation promulgated under the Act,

gives the agency’s “Office of Administrative Law Judges” power to “conduct hearings”

and “proceedings.” See 15 U.S.C. § 78d-1(a) (authorizing SEC to delegate functions to

ALJs); 17 C.F.R. § 200.1 (stating statutory basis for SEC regulations).

       Second, statutes set forth SEC ALJs’ duties, salaries, and means of appointment.


       13
          The dissent’s concern about how this opinion might affect the SEC ALJs’ role
in rulemaking is misplaced. Dissent at 14. SEC ALJs do not have a rulemaking role: the
Exchange Act does not allow the SEC to delegate rulemaking authority to its ALJs. 15
U.S.C. § 78d-1(a) (“Nothing in this section shall be deemed . . . to authorize the
delegation of the function of rule making . . . .”); see also Raymond J. Lucia Cos., Inc. v.
SEC, 832 F.3d 277, 281 (D.C. Cir. 2016) (stating “the authority to delegate [does] not
extend to the [SEC’s] rulemaking authority”). Other agencies’ ALJs rarely exercise
rulemaking authority. See, e.g., Perez v. Mortg. Brokers Ass’n, 135 S. Ct. 1199, 1222 n.5
(2015) (Thomas, J., concurring) (“Today, . . . formal rulemaking is the Yeti of
administrative law. There are isolated sightings of it in the ratemaking context, but
elsewhere it proves elusive.”); Kent Barnett, Resolving the ALJ Quandary, 66 Vand. L.
Rev. 797 (2013) (“[F]ormal rulemaking is extremely rare . . . .”). Nevertheless, to the
extent the dissent is concerned with other ALJs’ rulemaking authority, we do not address
the issue because our sole question is whether SEC ALJs are inferior officers.


                                            - 18 -
5 U.S.C. §§ 556-57 (duties); id. § 5372(b) (salary); id. §§ 1302, 3105 (means of

appointment).14 SEC ALJs are not “hired . . . on a temporary, episodic basis.” Freytag,

501 U.S. at 881. They receive career appointments and can be removed only for good

cause. 5 U.S.C. § 7521; 5 C.F.R. § 930.204(a).

       Third, SEC ALJs exercise significant discretion in performing “important

functions” commensurate with the STJs’ functions described in Freytag. SEC ALJs have

“authority to do all things necessary and appropriate to discharge his or her duties.”15

This includes authority to shape the administrative record by taking testimony,16

regulating document production and depositions,17 ruling on the admissibility of

evidence,18 receiving evidence,19 ruling on dispositive and procedural motions,20 issuing

subpoenas,21 and presiding over trial-like hearings.22 When presiding over trial-like


       14
        The SEC concedes that the way it appoints its ALJs does not comply with the
Appointments Clause. SEC Release No. 9972, 2015 WL 6575665 at *19.
       15
            17 C.F.R. § 201.111.
       16
            5 U.S.C. § 556(b), (c)(4).
       17
            17 C.F.R. §§ 201.230, 201.233.
       18
            Id. § 556(c)(3); 17 C.F.R. § 200.14(a)(3).
       19
            17 C.F.R. § 201.111(c).
       20
            5 U.S.C. § 556(c)(9); 17 C.F.R. §§ 200.14(a)(3), (7), 201.111(h), 201.220,
201.250.
       21
            5 U.S.C. § 556(c)(2); 17 C.F.R. §§ 200.14(a)(2), 201.111(b).


                                             - 19 -
hearings, SEC ALJs make credibility findings to which the SEC affords “considerable

weight” during agency review.23

       They also have authority to issue initial decisions that declare respondents liable

and impose sanctions.24 When a respondent does not timely seek agency review, “the

action of [the ALJ] shall, for all purposes, including appeal or review thereof, be deemed

the action of the Commission.”25 Even when a respondent timely seeks agency review,


______________________________________
Cont.
       22
            5 U.S.C. § 556(b); 17 C.F.R. § 200.14(a).
       23
          SEC Release No. 9972, 2015 WL 6575665, at *15 n.83 (deferring to SEC ALJ’s
credibility findings in the face of conflicting testimony). The dissent argues STJs
exercise “significant authority” because the Tax Court was “‘required to defer’ to the
[STJs’] factual and credibility findings ‘unless they were clearly erroneous,’” Dissent at 3
(quoting Landry, 204 F.3d at 1133). But SEC ALJs’ credibility findings also receive
deference. The SEC affords their credibility findings “considerable weight and
deference,” Thomas C. Bridge, SEC Release No. 9068, 2009 WL 3100582, at *18 n.75
(Sept. 29, 2009), and accepts the findings “absent substantial evidence to the contrary,”
Steven Altman, SEC Release No. 63306, 2010 WL 5092725, at *10 (Nov. 10, 2010). See
also Robert Thomas Clawson, SEC Release No. 48143, 2003 WL 21539920, at *2 (July
9, 2003) (stating the SEC “accepts” the ALJs’ credibility findings “absent overwhelming
evidence to the contrary”). Both the Tax Court and the SEC defer to credibility findings
but are not required to accept those findings if they are undermined by other evidence.
Thus, SEC ALJs, like STJs, exercise significant authority in part because the SEC defers
to their credibility findings.
       24
        5 U.S.C. § 556(c)(10); 17 C.F.R. §§ 200.14(a)(8),
200.30-9(a), 201.111(i), 201.360; see also SEC Release No. 507, 2013 WL 5553898.
       25
          15 U.S.C. § 78d-1(c). The SEC and the dissent argue the SEC ALJs do not
exercise significant authority when issuing initial decisions because the agency retains a
right to review the decisions de novo. But this argument is incomplete. The agency has
discretion to engage in de novo review, 15 U.S.C. § 78d-1(b), but also has discretion not
                                                                             Continued . . .
                                           - 20 -
the agency may decline to review initial decisions adjudicating certain categories of

cases.26

       Further, SEC ALJs have power to enter default judgments27 and otherwise steer

the outcome of proceedings by holding and requiring attendance at settlement

conferences.28 They also have authority to set aside, make permanent, limit, or suspend

temporary sanctions that the SEC itself has imposed.29


______________________________________
Cont.

to engage in de novo review before an initial decision becomes final, 17 C.F.R.
§ 201.360(d)(2) (stating the agency can make an initial decision final by entering an
order). In fact, the agency has no duty, based on the regulation’s plain language, to
review an unchallenged initial decision before entering an order stating the decision is
final. 17 C.F.R. § 201.360(d)(2). Thus, SEC ALJs exercise significant authority in part
because their initial decisions can and do become final without plenary agency review.
Indeed, 90 percent of those initial decisions become final without plenary review. SEC,
ALJ Initial Decisions, https://www.sec.gov/alj/aljdec.shtml (archiving initial decisions);
see also Amici Br. at 13-14.
       Further, an SEC ALJ’s authority to issue an initial decision is significant because,
even if reviewed de novo, the ALJ plays a significant role as detailed above in conducting
proceedings and developing the record leading to the decision, and the decision publicly
states whether respondents have violated securities laws and imposes penalties for
violations. Id. § 201.360(c) (requiring the agency to publish the initial decision on the
SEC docket).
       26
            17 C.F.R. § 201.411(b)(2).
       27
            17 C.F.R. § 201.155.
       28
            5 U.S.C. § 556(c)(6), (8); 17 C.F.R. § 201.111(e).
       29
        17 C.F.R. §§ 200.30-9, 201.531; see also 15 U.S.C. § 78u-3(c) (describing
temporary order); 17 C.F.R. § 201.101(a)(11) (stating a temporary sanction is “a
temporary cease-and-desist order or a temporary suspension of . . . registration”); id.
                                                                              Continued . . .
                                         - 21 -
       In sum, SEC ALJs closely resemble the STJs described in Freytag. Both occupy

offices established by law; both have duties, salaries, and means of appointment specified

by statute; and both exercise significant discretion while performing “important

functions” that are “more than ministerial tasks.” Freytag, 501 U.S. at 881-82; see also

Samuels, 930 F.2d at 986. Further, both perform similar adjudicative functions as set out

above.30 We therefore hold that the SEC ALJs are inferior officers who must be

appointed in conformity with the Appointments Clause.31

______________________________________
Cont.

§§ 201.510(b), 201.512(a), 201.521(b), 201.522(a) (describing a temporary sanction and
stating an SEC commissioner presides over the hearing and that the agency must issue the
order); id. § 201.531(a)(1) (stating an initial decision “shall specify” which terms or
conditions of a temporary sanction “shall become permanent”); id. § 201.531(a)(2)
(stating an initial decision “shall specify” “whether a temporary suspension of a
respondent’s registration, if any, shall be made permanent”); id. § 201.531(b) (stating an
order modifying a temporary sanction “shall be effective 14 days after service” (emphasis
added)).
       30
         The dissent complains that the majority opinion “lists the duties of SEC ALJs,
without telling us which, if any, were more important to its decision than others and
why.” Dissent at 11. But this misses the point of our following Freytag. There, the
Court identified four duties that supported the STJs’ inferior officer status: “They take
testimony, conduct trials, rule on the admissibility of evidence, and have the power to
enforce compliance with discovery orders.” 501 U.S. at 881-82. We point out above that
SEC ALJs perform comparable duties, and we spell out even more of their discretionary
functions.
       31
         Those who challenge agency action typically have the burden to show
prejudicial error. 5 U.S.C. § 706; Shinseki v. Sanders, 556 U.S. 396, 406-07 (2009). The
error here is structural because the Supreme Court has recognized the separation of
powers as a “structural safeguard.” Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239
(1995) (emphasis omitted). Structural errors are not subject to prejudicial-error review.
                                                                             Continued . . .
                                           - 22 -
       This holding serves the purposes of the Appointments Clause. The current ALJ

hiring process whereby the OPM screens applicants, proposes three finalists to the SEC,

and then leaves it to somebody at the agency to pick one, is a diffuse process that does

not lend itself to the accountability that the Appointments Clause was written to secure.

In other words, it is unclear where the appointment buck stops. The current hiring system

would suffice under the Constitution if SEC ALJs were employees, but we hold under

Freytag that they are inferior officers who must be appointed as the Constitution

commands. As the Supreme Court said in Freytag, “The Appointments Clause prevents

Congress from dispensing power too freely; it limits the universe of eligible recipients of

the power to appoint.” 501 U.S. at 880.

                                F. The SEC’s Arguments

1. Final Decision-Making Power

       In rejecting Mr. Bandimere’s Appointments Clause argument during agency

review, the SEC’s opinion concluded the ALJs are not inferior officers because they
______________________________________
Cont.

See Rivera v. Illinois, 556 U.S. 148, 161 (2009) (stating “constitutional errors concerning
the qualification of the jury or judge” require automatic reversal (emphasis omitted));
Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 123 (D.C. Cir.
2015) (“[A]n Appointments Clause violation is a structural error that warrants reversal
regardless of whether prejudice can be shown.”); United States v. Solon, 596 F.3d 1206,
1211 (10th Cir. 2010) (stating structural errors are subject to automatic reversal).
       Mr. Bandimere argues, “[The SEC ALJ] is an inferior officer whose
unconstitutional appointment is a structural constitutional error that invalidates the
proceeding.” Aplt. Br. at 18. The SEC does not dispute that an Appointments Clause
error here is structural and that there is no need to show prejudice.

                                           - 23 -
cannot render final decisions and the agency retains authority to review ALJs’ decisions

de novo.

       The SEC makes similar arguments here. It contends the Freytag Court relied on

the STJs’ final decision-making power when it held they were inferior officers. The

agency draws on Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), in which the D.C.

Circuit attempted to distinguish Freytag and held that FDIC ALJs were employees. 204

F.3d at 1134. In Landry, the D.C. Circuit stated Freytag “laid exceptional stress on the

STJs’ final decisionmaking power.” Id. The court therefore considered dispositive the

FDIC ALJs’ inability to render final decisions. Id.

       This past August, the D.C. Circuit addressed the same question we face here.

Raymond J. Lucia Cos., Inc. v. SEC, 832 F.3d 277, 283 (D.C. Cir. 2016). The D.C.

Circuit followed Landry and concluded that SEC ALJs are employees and not inferior

officers. Id. at 283-89. The holding was based on the court’s conclusion that SEC ALJs

cannot render final decisions. Id. at 285 (“[T]he parties principally disagree about

whether [SEC] ALJs issue final decisions of the [SEC]. Our analysis begins, and ends,

there.”). We disagree with the SEC’s reading of Freytag and its argument that final

decision-making power is dispositive to the question at hand.

       First, both the agency and Landry place undue weight on final decision-making

authority. Freytag stated the government’s argument that STJs should be deemed

employees when they lacked the ability to enter final decisions “ignore[d] the

significance of the duties and discretion that [STJs] possess.” 501 U.S. at 881. The
                                           - 24 -
Supreme Court held STJs are inferior officers because their office was established by

law; their duties, salaries and means of appointments were “specified by statute”; and

they “exercise[d] significant discretion” in “carrying out . . . important functions.” Id. at

881-82.

       Moreover, Freytag agreed with the Second Circuit’s Samuels decision, id., which

held that STJs are inferior officers because they “exercise a great deal of discretion and

perform important functions” in § 7443A(b)(4) cases, Samuels, 930 F.2d at 986. The

Second Circuit did not rely on the STJs’ ability to enter final decisions under

§ 7443A(b)(1), (2), and (3). Id. at 985-86. Rather, it said STJs are inferior officers even

though “the ultimate decisional authority in cases under section 7443A(b)(4) rests with

the Tax Court judges.” Id. at 985. Like Freytag, Samuels hinged on the STJs’ duties and

not on final decision-making power.

       After stating its holding that STJs are inferior officers based on their duties, the

Freytag Court responded to the government’s standing argument. 501 U.S. at 882. The

Court stated, “Even if the duties of special trial judges under subsection (b)(4) were not as

significant as we and the two courts have found them to be, our conclusion would be

unchanged.” Id. (emphasis added). This sentence reaffirms what the Court previously

concluded: it “found” the duties of the STJs are sufficiently significant to make them

inferior officers. Id. That conclusion did not depend on the STJs’ authority to make final




                                            - 25 -
decisions.32

       Further, the Court’s “even if” argument was a response to (1) the government’s

concession that STJs are inferior officers in § 7443A(b)(1), (2), and (3) cases, where they

had final decision-making authority,33 and (2) the government’s argument that the

petitioners lacked standing to rely on the STJs’ authority in those types of cases to

establish the STJs’ inferior officer status in § 7443A(b)(4) cases.34 Based on the


       32
            Judge Randolph rebutted the Landry majority by arguing the following:

       The [Freytag] Court introduced its alternative holding thus: “Even if the
       duties of special trial judges [just described] were not as significant as we
       and the two courts have found them to be, our conclusion would be
       unchanged.” 501 U.S. at 882 (italics added). What “conclusion” did the
       Court have in mind? The conclusion it had reached in the preceding
       paragraphs—namely, that although special trial judges may not render final
       decisions, they are nevertheless inferior officers of the United States within
       the meaning of Article II, § 2, cl. 2. The same conclusion, the same holding,
       had also been rendered in [Samuels], a decision the Supreme Court cited
       and expressly approved. See 501 U.S. at 881. There the Second Circuit
       held that a special trial judge performing the same advisory function as the
       judge in Freytag was an inferior officer; the court of appeals did not
       mention the fact that in other types of cases, the judge could issue final
       judgments.

Landry, 204 F.3d at 1142 (Randolph, J., concurring).
       33
          “The Commissioner concedes that in cases governed by subsections (b)(1), (2),
and (3), special trial judges act as inferior officers who exercise independent authority.”
501 U.S. at 882.
       34
         “But the Commissioner urges that petitioners may not rely on the extensive
power wielded by the [STJ] in declaratory judgment proceedings and limited-amount tax
cases because petitioners lack standing to assert the rights of taxpayers whose cases are
assigned to [STJs] under subsections (b)(1), (2), and (3).” Id.
                                                                             Continued . . .
                                           - 26 -
government’s concession, the Court stated STJs could not transform to employees by

“perform[ing] duties that may be performed by an employee not subject to the

Appointments Clause.” Id. The Court thus rejected the standing argument as “beside the

point.” Id.

       The Court’s rejection of the government’s standing argument is a far cry from

holding that final decision-making authority is the predicate for inferior officer status.

Indeed, the Court did not hold that STJs are inferior officers because they have final

decision-making authority in § 7443A(b)(1), (2), and (3) cases. Rather, it accepted the

government’s concession that STJs are inferior officers in those cases for the purpose of

responding to the standing argument. Thus, the Court’s “even if” argument did not

modify or supplant its holding that STJs were inferior officers based on the “significance

of [their] duties and discretion.” Id. at 881.

       The SEC reads Freytag as elevating final decision-making authority to the crux of

inferior officer status. But properly read, Freytag did not place “exceptional stress” on

final decision-making power.35 To the contrary, it rebutted the government’s argument

that STJs were inferior officers when they lacked final decision-making power (i.e.,
______________________________________
Cont.

       35
         Compare Freytag, 501 U.S. at 881-82 (rejecting the government’s argument that
STJs were employees when they lacked final decision-making power), with Landry, 204
F.3d at 1134 (asserting Freytag “laid exceptional stress on the STJs’ final
decisionmaking power”).


                                            - 27 -
§ 7443A(b)(4) cases) because the argument “ignore[d] the significance of the duties and

discretion that [STJs] possess.” Freytag, 501 U.S. at 881.

       Final decision-making power is relevant in determining whether a public servant

exercises significant authority. But that does not mean every inferior officer must possess

final decision-making power. Freytag’s holding undermines that contention. In short,

the Court did not make final decision-making power the essence of inferior officer status.

Nor do we.

       Second, the SEC’s argument finds no support in other Supreme Court decisions

describing inferior officers. In Edmond, the Supreme Court considered final decision-

making power as relevant to the difference between a principal and inferior officer, not

the difference between an officer and an employee. 520 U.S. at 665. The Court held

Coast Guard Court of Criminal Appeals judges were inferior officers instead of principal

officers because they “ha[d] no power to render a final decision on behalf of the United

States unless permitted to do so by other Executive officers, and hence they [were]

inferior within the meaning of Article II.” Id. In other words, the Court classified the

judges as inferior officers even though they had no final decision-making power. Id.

       In Buckley, the Court held FEC commissioners were inferior officers because they

exercised “significant authority,” including the “responsibility for conducting civil

litigation in the courts of the United States for vindicating public rights.” 424 U.S. at

125-26, 140. The Buckley Court analyzed significant authority as a matter of degree

without discussing final decision-making power. Id.; see also Ass’n of Am. Railroads v.
                                            - 28 -
U.S. Dep’t of Transp., 821 F.3d 19, 38 (D.C. Cir. 2016) (stating Edmond “clarified [that]

the degree of an individual’s authority is relevant in marking the line between officer and

nonofficer, not between principal and inferior officer” (citing Edmond, 520 U.S. at 662)).

       The Court has not equated significant authority with final decision-making power

in Buckley, Freytag, Edmond, or elsewhere. Nor has it indicated that each of the officers

it has deemed inferior possesses that power.36 Further, Justice Breyer has stated that

“efforts to define [‘inferior Officer’] inevitably conclude that the term’s sweep is

unusually broad.” Free Enter. Fund, 561 U.S. at 539 (Breyer, J., dissenting).

       Third, supervision by superior officers is not unique to employees. It is a common

feature of inferior officers as well.37 The military judges at issue in Edmond were inferior


       36
          Whether SEC ALJs can enter final decisions is not dispositive to our holding
because it was not dispositive to Freytag’s holding. Nevertheless, the SEC’s argument
that its ALJs can never enter final decisions is not airtight. Without a timely petition for
review, SEC ALJ’s actions are “deemed the action of the Commission.” 15 U.S.C.
§ 78d-1(c). The agency retains authority to review initial decisions de novo and may
determine the date on which an unchallenged initial decision is final. 15 U.S.C. § 78d-
1(b); 17 C.F.R. § 201.360(d)(2); Lucia, 832 F.3d at 286-87. But the agency may simply
enter an order stating an initial decision is final without engaging in any review. 17
C.F.R. § 201.360(d)(2). And the agency can also decline to review an initial decision
even when there is a timely petition for review. 17 C.F.R. § 201.411(b)(2). Thus, the
Exchange Act and the agency’s regulations provide a path for an initial decision to
become final without plenary agency review. In practice, most initial decisions follow
that path—90 percent. See SEC, ALJ Initial Decisions, https://www.sec.gov/alj/aljdec
.shtml.
       37
         Edmond, 520 U.S. at 663 (stating an inferior officer is “directed and supervised
at some level by others who were appointed by Presidential nomination with advice and
consent of the Senate”); Landry, 204 F.3d at 1142 (Randolph, J., concurring) (“The fact
that an ALJ cannot render a final decision and is subject to the ultimate supervision of the
                                                                              Continued . . .
                                           - 29 -
officers based on their inability to “render a final decision . . . unless permitted to do so

by other Executive officers.” 520 U.S. at 665. Thus, the fact that the SEC can reverse its

ALJs does not mean they are employees rather than inferior officers.

2. Deference to Congress

       The SEC further contends Congress intended its ALJs to be employees. It urges

us to “accor[d] significant weight” to congressional intent in determining whether the

ALJs are inferior officers. Aplee. Br. at 41.

       The SEC overstates its arguments. In its brief, it has not cited statutory language

expressly stating ALJs are employees for purposes of the Appointments Clause. Nor has

it cited legislative history indicating Congress has specifically addressed the question

whether ALJs are inferior officers. And to the extent the SEC seeks to infer

congressional intent from congressional action, the evidence is mixed.

       On the one hand, the SEC stresses that Congress was “deliberate” in constructing

the statutory framework governing the hiring of ALJs and the powers ALJs have in

relation to their agencies. Aplee. Br. at 27. This includes placing the position within the

civil service and tasking the OPM to prescribe rules governing ALJ hiring. 5 U.S.C.

§§ 1302, 3105, 3313; 5 C.F.R. § 930.201. The SEC argues this suggests congressional

intent to classify ALJs as employees. But, on the other hand, and as detailed previously,
______________________________________
Cont.

FDIC shows only that the ALJ shares the common characteristic of an ‘inferior
Officer.’”).

                                             - 30 -
Congress granted significant authority to SEC ALJs in the APA and the Exchange Act

and has authorized the agency to delegate “any of its [non-rulemaking] functions” to

ALJs. 5 U.S.C. §§ 556, 557; 15 U.S.C. § 78d-1(a).

      When it has faced a case or controversy concerning separation of powers, the

Supreme Court has determined whether the legislative or executive branches or both have

violated the Constitution. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986); INS v.

Chadha, 462 U.S. 919 (1983); Buckley, 424 U.S. at 1; Marbury v. Madison, 5 U.S. (1

Cranch) 137 (1803). This has been so even when a congressional scheme was carefully

devised and effective. Bowsher, 478 U.S. at 736.38 However “carefully devised” the

ALJ system may be generally and the SEC ALJ program particularly, see Lucia, 832 F.3d

at 289, that should not excuse failure to comply with the Appointments Clause. As a

circuit court, we must follow Supreme Court precedent. Hutto v. Davis, 454 U.S. 370,

375 (1982) (per curiam) (“[A] precedent of [the Supreme] Court must be followed by the

lower federal courts.”). And as explained, Freytag governs our result here.


      38
           In Bowsher, the Court stated:

              No one can doubt that Congress and the President are confronted
      with fiscal and economic problems of unprecedented magnitude, but “the
      fact that a given law or procedure is efficient, convenient, and useful in
      facilitating functions of government, standing alone, will not save it if it is
      contrary to the Constitution. Convenience and efficiency are not the
      primary objectives—or the hallmarks—of democratic government.”

478 U.S. at 736 (ellipsis omitted) (quoting Chadha, 462 U.S. at 944).


                                           - 31 -
       Moreover, the Supreme Court’s treatment of the government’s deference argument

in Freytag is instructive here. The government contended the Supreme Court should

“defer to the Executive Branch’s decision that there has been no legislative encroachment

on Presidential prerogatives under the Appointments Clause.” 501 U.S. at 879. The

Court rejected that argument: “[T]he Clause forbids Congress to grant the appointment

power to inappropriate members of the Executive Branch. Neither Congress nor the

Executive can agree to waive this structural protection. . . . The structural interests

protected by the Appointments Clause are not those of any one branch of Government but

of the entire Republic.” Id. at 880; see also NLRB v. Noel Canning, 134 S. Ct. 2550,

2594 (2014) (Scalia, J., concurring in the judgment) (“[T]he political branches cannot by

agreement alter the constitutional structure.”). As stated, we question whether Congress

has clearly classified SEC ALJs as employees. But even if it had, we would still follow

Freytag.

                               G. The Dissent’s Arguments

       We address three of the dissent’s main arguments. First, it points out the STJs had

“power to bind the Government and third parties,” and the “SEC ALJs do not.” Dissent

at 1. This is the final authority argument the SEC makes here and that the D.C. Circuit

relied on in Landry and Lucia. We have addressed this argument above.

       Second, the dissent contends that “even where [STJs] could not enter final

decisions, their initial decisions had binding effect.” Id. at 2. The SEC did not make this

argument. In any event, the contention is incorrect because it rests on a misapprehension
                                            - 32 -
of the Tax Court judges’ and STJs’ roles in cases where the Tax Court judges must make

the final decisions, such as Freytag. See Ballard v. Comm’r of Internal Revenue, 544

U.S. 40, 44 (2005) (citing 26 U.S.C. § 7443A(c)) (stating Tax Court judges must make

the “[u]ltimate decision in cases involving tax deficiencies that exceed $50,000”). The

dissent asserts that the STJs in effect made the final decisions in those cases because the

Tax Court “purported to adopt its [STJs’] opinions verbatim in 880 out of 880 cases

between 1983 and 2005.” Dissent at 8. At first blush, that assertion suggests the Tax

Court rubber stamped 880 STJ recommendations without making a single change. But a

full reading of the dissent’s cited sources shows that assertion is incorrect.

       In Ballard, a case the dissent mistakenly relies on to attempt to differentiate STJs

and SEC ALJs,39 the Supreme Court described the Tax Court’s process of reviewing

STJ’s recommendations based on the government’s own explanation of how Tax Court

judges and STJs worked together. 544 U.S. at 58, 65 (stating the government

“describe[d] and defend[ed]” its process). Beginning in 1983, STJs submitted “reports”

to the Tax Court judges tasked with making the final decision in each particular case. Id.

at 58. In each case, the Tax Court judge treated the report as an “in-house draft” and

engaged in a “collaborative process” with the STJ in which they “worked over” the report


       39
          The dissent relies on Ballard, Dissent at 2-4, yet objects to our use of the case to
rebut its argument that the Tax Court deferred to STJs on questions of law. Id. at 5 n.1.
We do not rely on Ballard in reaching our holding or in responding to the SEC’s
arguments (because the SEC did not rely on it). We discuss the case only to respond to
the dissent.

                                            - 33 -
and produced an “opinion of the [STJ].” Id. at 57. “When the collaborative process

[was] complete, the Tax Court judge issue[d] a decision in all cases agreeing with and

adopting the opinion of the [STJ].” Id. (alterations and quotations omitted). In sum, the

Tax Court judges adopted opinions they had a hand in supervising and producing.

       The law review article the dissent cites explains why it is simply not true that the

Tax Court rubber stamped 880 of 880 STJ opinions: “the Tax Court judge treated the

report and recommendation of the [STJ] as a draft of an opinion that would, after a

collaborative effort with the Tax Court judge, ultimately be adopted by the Tax Court.”

Christopher M. Pietruszkiewicz, Conflating Standards of Review in the Tax Court: A

Lesson in Ambiguity, 44 Hous. L. Rev. 1337, 1360 (2008). The dissent’s conclusion that

the STJs’ “initial report often decided the case,” Dissent at 3, overstates the STJs’ role.

And their actual role hardly supports the notions that Tax Court judges “appeared to defer

to its [STJs] on conclusions of law” or “that [the STJs] had as much authority as Tax

Court judges themselves.” Id. at 3, 6.40 Even if the Tax Court did not review STJs’


       40
          The dissent states the Tax Court judge in Freytag adopted the STJ’s report
“verbatim.” Dissent at 5 n.1. There is no indication that is true. By the time of the
Freytag trial in 1987, the Tax Court had been practicing the “collaborative process”
described above for four years. See Ballard, 544 U.S. at 57 (stating the Tax Court began
the “collaborative process” in 1983). The Tax Court judge in Freytag received the STJ’s
“report” and within four months adopted the STJ’s “opinion,” Freytag, 501 U.S. at 872
n.2 (emphasis added), which, as we learn from Ballard, is the document produced by the
STJ and the Tax Court judge collaboratively, Ballard, 544 U.S. at 58.
       In other words, Freytag appears to be an example of the collaborative process at
work—the STJ provided the Tax Court judge a “report,” and the Tax Court judge later
adopted the STJ’s “opinion” that resulted from the joint efforts of the STJ and Tax Court
                                                                             Continued . . .
                                           - 34 -
recommendations in most cases, that would not distinguish STJs from SEC ALJs. Most

of the SEC ALJs’ initial decisions—about 90 percent—become final without any review

or revision from an SEC Commissioner.41

       The dissent is left with its argument that in certain cases the STJs “had the power

to bind third parties and the government itself.” Id. at 6 n.2. But, as previously

explained, Freytag did not regard this ground as dispositive to hold the STJs are inferior

officers.42

       Moreover, even if the STJs exercise more authority than the SEC ALJs, it does not

follow that the former are inferior officers and the latter are employees or that the latter

do not exercise significant authority. We agree that ALJs are not identical to STJs. But,

______________________________________
Cont.

judge. Nevertheless, the dissent infers the Tax Court judge adopted the STJ’s
recommendation “verbatim,” Dissent at 5 n.1, even though the Supreme Court declined
“to assume ‘rubber stamp’ activity on the part of the [Tax Court judge],” Freytag, 501
U.S. at 872 n.2.
       41
         Amici report and the agency does not dispute that approximately 90 percent of
SEC ALJs’ initial decisions issued in 2014 and 2015 became final without agency
plenary review. Amici Br. at 13-14. Our review of the SEC’s archives confirms this
information. See SEC, ALJ Initial Decisions, https://www.sec.gov/alj/aljdec.shtml.
       42
          The dissent does not state it disagrees with our reading of Freytag. Rather, it
relies on passages from the petitioners’ brief in Freytag to describe the characteristics of
the STJs. What really counts, however, are the STJs’ features the Supreme Court relied
on to determine they are inferior officers. The Freytag opinion—not one side’s advocacy
brief—is the proper source for analysis. And, as our analysis shows, Freytag leads us to
conclude the SEC ALJs are inferior officers.


                                            - 35 -
as explained in detail above, STJs and ALJs closely resemble one another where it

counts. SEC ALJs can still be inferior officers without possessing identical powers as

STJs, just like STJs can still be inferior officers without possessing identical powers as

FEC commissioners and assistant surgeons. See Buckley, 424 U.S. at 125-26; Moore, 95

U.S. at 762.43

       Third, the dissent expresses concerns about “the probable consequences of today’s

decision.” Dissent at 11. It goes on to raise issues that are not before us and that the

parties did not brief.

       We recognize that our holding potentially implicates other questions. But no other

issues have been presented to us here, and we therefore cannot address them. Nothing in

this opinion should be read to answer any but the precise question before this court:

whether SEC ALJs are employees or inferior officers. Questions about officer removal,

officer status of other agencies’ ALJs, civil service protection, rulemaking, and

retroactivity, see Dissent at 11-15, are not issues on appeal and have not been briefed by

the parties. Having answered the question before us, and thus resolved Mr. Bandimere’s

petition, we must leave for another day any other putative consequences of that

conclusion.



       43
          The dissent does not explain or even acknowledge the differences between
inferior and principal officers. Nor does it recognize that inferior officers are
subordinates who are still considered officers even when a superior officer directs their
actions or makes final decisions.

                                           - 36 -
                                   III. CONCLUSION

       SEC ALJs “are more than mere aids” to the agency. Samuels, 930 F.2d at 986.

They “perform more than ministerial tasks.” Freytag, 501 U.S. at 881. The governing

statutes and regulations give them duties comparable to the STJs’ duties described in

Freytag. SEC ALJs carry out “important functions,” id. at 882, and “exercis[e]

significant authority pursuant to the laws of the United States,” Buckley, 424 U.S. at 126.

The SEC’s power to review its ALJs does not transform them into lesser functionaries.

Rather, it shows the ALJs are inferior officers subordinate to the SEC commissioners.

Edmond, 520 U.S. at 663.

       The SEC ALJ held his office unconstitutionally when he presided over Mr.

Bandimere’s hearing. We grant the petition for review and set aside the SEC’s opinion.




                                           - 37 -
No. 15-9586, Bandimere v. SEC

BRISCOE, Circuit Judge, concurring.

       I write not to differ with the rationale of the majority opinion, but rather to fully

join it. My focus here is on the dissent. I group my concerns in two categories: (I) the

dissent’s predictions about speculative “repercussions” of the opinion, by which it reaches

what appear to be several erroneous conclusions; and (II) its application of a truncated

legal framework to a misstated version of the facts of record.

                                               I

       Underlying the dissent’s position is a concern about the next case, and the one after

that. The dissent suggests that a “probable consequence[]” of the opinion is that “all”

1,792 “federal ALJs are at risk of being declared inferior Officers.” Dissent at 11 & n.5.

But this was no less true when Freytag v. Commissioner of Internal Revenue was decided.

501 U.S. 868 (1991). A “risk” always exists that a court will be called on to decide

whether any particular federal employee or group of employees has been delegated

sufficient authority to fall within the ambit of the Appointments Clause, U.S. Const. art. II,

§ 2, cl. 2, the Constitution’s structural safeguard tethering key personnel—Officers—to the

sovereign power of the United States, and thus to the people. Answering that question in

the affirmative as to the SEC’s five ALJs does no “mischief” to bedrock principles of

constitutional law. Dissent at 16.

       Further, the majority has not affected “thousands of administrative actions,” id. at

11, by answering that question. Freytag instead commands that courts engage in a case-

by-case analysis. 501 U.S. at 880–82. Specifically, a court must determine whether a

federal employee (or class of employees) is subject to the Appointments Clause by

                                               1
answering whether the employee exercises “significant authority pursuant to the laws of

the United States,” and, in turn, by analyzing the aggregate “duties and functions” the

employee performs or is authorized to perform. Id. at 881 (quotation marks and citations

omitted). That power sometimes comes in the form of final decision-making authority, id.

at 882; other times, not. Id. at 881–82. The majority merely and correctly applies

Freytag’s test to answer that question as to the SEC’s five ALJs.

       Relatedly, the dissent errs when it suggests that the majority is operating without

“much precedent.” Dissent at 16. The majority simply applies Freytag’s framework, as

all lower courts must do. In truth, the dissent takes issue with and devotes much of its

analysis to suggesting that the majority ought to follow the D.C. Circuit’s misapplication

of Freytag wrought in Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), and bolstered by

Raymond J. Lucia Cos., Inc. v. Securities and Exchange Commission, 832 F.3d 277 (D.C.

Cir. 2016). The critical difference between the majority and Landry and Lucia is that the

majority recognizes that Freytag does not make final decision-making authority the sine

qua non of inferior Officer status. 501 U.S. at 881–82.

       The D.C. Circuit erroneously suggested as much in Landry when it said, over Judge

Randolph’s contrary view, that the Freytag Court saw final decision-making authority as

“exceptional[ly]” important and “critical” to determining Officer status. 204 F.3d at 1134.

And Lucia compounded that error when it acknowledged that the parties identified (as

here) other powers the SEC’s ALJs exercise but then narrowed its analysis to and rested its

holding entirely on whether those ALJs can issue final decisions for the SEC. See 832

F.3d at 285 (acknowledging that “the parties principally,” not only, “disagree[d] about

whether” the SEC’s “ALJs issue final decisions of the” SEC and explaining that the

                                              2
court’s “analysis begins, and ends,” with that question); id. at 285–89 (analyzing only

whether the SEC’s ALJs can render final decisions). The majority applies precedent:

Freytag, not Landry or Lucia.

       The dissent also contends that the majority’s opinion “will be used to strip all ALJs

of their dual layer for-cause protection.” Dissent at 14. This troubling statement calls for

a response because the dissent essentially predetermines the holdings of hypothetical cases

not before this court.

       In some future case, a litigant may argue that all ALJs are inferior Officers. But as

the majority here explains—and Freytag commands—whether a particular federal

employee or class of employees are Officers subject to the Appointments Clause requires a

position-by-position analysis of the authority Congress by law and a particular executive

agency by rule and practice has delegated to its personnel. 501 U.S. at 881–82. Some

ALJs within particular agencies may exercise so little authority and also be subject to such

complete oversight (e.g., unlike here, de novo review) that they are not Officers. The

majority rightly does not attempt to answer whether each ALJ in every federal agency is

an Officer because Freytag disclaims such sweeping pronouncements, id., and, in any

event, it is not necessary to do so to resolve Mr. Bandimere’s appeal.

       The dissent also does not stop after incorrectly stating that the majority has

addressed an issue not before us. It instead goes on to suggest that the majority’s non-

answer to an unasked question may lead to the implosion of the federal civil service, at

least as to all federal ALJs. But the dissent is wrong as to the outcome of such a

hypothetical future case. And in suggesting that this outcome follows from the majority’s

opinion, the dissent unnecessarily sounds alarms which demand rejoinder.

                                              3
       Specifically, the dissent worries that the consequence of the majority’s opinion is

that all federal ALJs are inferior Officers, that all federal ALJs are thus afforded the

double-for-good-cause-removal protection forbidden by Free Enterprise Fund v. PCAOB,

561 U.S. 477 (2010), and that, as a result, all federal ALJs will lose their civil service

protections. Warning of the dangers of such a conclusion, the dissent suggests that the

Social Security Administration will be impaired when its 1,537 ALJs lose their civil

service protections. But there are at least two errors in the dissent’s speculation about

facts not before this court.

       First, it may well be that within the Social Security Administration ALJs are

removable in a manner that does not run afoul of Free Enterprise Fund. For example, if

the person or persons responsible for firing those ALJs are not afforded good-cause

removal protections, then the Administration’s ALJs will retain their civil service

protections even if they are inferior Officers. The dissent cannot say for certain whether

this is so, because we have no briefing on the subject in this case, which deals only with

the SEC.

       Second, even assuming that all federal ALJs are Officers who are removable only

for good cause and that they are all selected by Officers who are also removable only for

good cause, the dissent knocks down a straw man by suggesting that Free Enterprise Fund

might require stripping all ALJs of their civil service protections. Rather, as Free

Enterprise Fund reminds us, courts normally are required to afford the minimum relief

necessary to bring administrative overreach in line with the Constitution:

       Generally speaking, when confronting a constitutional flaw in a statute, we
       try to limit the solution to the problem, severing any problematic portions
       while leaving the remainder intact. Because the unconstitutionality of a part
       of an Act does not necessarily defeat or affect the validity of its remaining

                                               4
       provisions, the normal rule is that partial, rather than facial, invalidation is
       the required course. . . . Concluding that the removal restrictions are invalid
       leaves [an Officer] removable . . . at will, and leaves the President separated
       from [the Officer] by only a single level of good-cause tenure.

Id. at 508–09 (quotation marks, alterations, and citations omitted).

       The D.C. Circuit just recently employed this principle in PHH Corp. v. Consumer

Financial Protection Bureau, 839 F.3d 1 (D.C. Cir. 2016). There, the court held, inter alia,

that the Consumer Financial Protection Bureau (CFPB) was so structured as to violate

Article II because it was headed by a single director who was removable only for good

cause. Id. at 12–39. But the remedy for this unconstitutional structure was not—as the

petitioners had urged—the abrogation of the CFPB. Id. at 37. Applying Free Enterprise

Fund and other Supreme Court precedents, the D.C. Circuit instead struck the single

offending clause from the CFPB’s implementing legislation and rendered the director

removable by the President at will, rather than for good cause. Id. at 37–39.

       Thus, contrary to the dissent’s suggestions, the majority’s opinion portends no

change to any ALJ’s robust protections. The dissent states that all 1,792 federal ALJs are

removable only by the United States Merit Systems Protect Board (MSPB), “and only for

good cause.” Dissent at 14. Assuming arguendo that is always correct, see 5 U.S.C.

§ 7521, cursory research on this un-briefed issue reveals that the MSPB is composed of

three members, each of whom are appointed directly by the President but removable only

for good cause. 5 C.F.R. § 1200.2. So even if this court were faced with the hypothetical

future case that troubles the dissent, there is no cause for alarm that the administrative state

will be eroded (and of course, that is of no import to whether the government is following

Article II). See Free Enterprise Fund, 561 U.S. at 499. A court faced with such a

challenge would be empowered only to order the minimal remedy effective to cure the

                                               5
Article II error, id. at 508–10: rendering the MSPB’s three members removable by the

President at will. While the dissent opines on the hypothetical consequences of the

majority’s opinion, today’s decision will have none of the consequences to the nationwide

civil service that the dissent predicts.

       Additionally, the dissent is incorrect when it argues that the majority is not showing

appropriate “deference to Congress,” Dissent at 16, on this structural constitutional

question, as when it states: “Whether federal ALJs should receive such dual for-cause

protections is perhaps a question that could be debated, but Congress has already decided

this question in favor of protecting ALJs . . . .” Id. at 14 n.8. Freytag rejected this exact

argument and recognized that “[t]he structural interests protected by the Appointments

Clause are not those of any one branch of Government but of the entire Republic.” 501

U.S. at 880. With respect to removal specifically, even if Congress sought to insulate all

federal ALJs from Executive control by placing them behind double layers of good-cause

removal protection, Free Enterprise Fund holds that a court would be obliged to afford that

decision no deference and instead to strike the unsound architecture. 561 U.S. at 497.

       In any event, the dissent’s dire predictions about hypothetical consequences of the

majority’s holding are exaggerated.

                                               II

       Turning to the dissent’s proposal for deciding this case on the facts here, the dissent

appears to sub silentio urge this court to adopt Landry and Lucia’s misstatement of

Freytag’s test for determining whether a federal employee is an inferior Officer. That is,

the dissent focuses almost exclusively on whether the SEC’s ALJs exercise final decision-

making authority, calling it the “[m]ost important[]” consideration that “makes all the


                                               6
difference” in deciding whether the ALJs are Officers. Dissent at 1 (citing, inter alia,

Lucia, 832 F.3d at 285–87); see id. at 6 n.2 (arguing that “[d]elegated sovereign authority

has long been understood to be a key characteristic of a federal ‘office’”); id. at 7–8

(contending, absent citation to authority, that this question “is not about” the SEC’s

delegation to its ALJs of “day-to-day discretion” because “the Appointments Clause does

not care about that”).

       But as the majority points out, this mode of analysis—and the D.C. Circuit’s

repeated application of it—is wrong. Freytag instead compels courts, as the majority does

here, to examine all of the “duties and functions” a federal employee has been delegated

and then to determine whether that person is exercising the authority of the United States

(an Officer) or simply carrying out “ministerial” government tasks (an employee). 501

U.S. at 881–82. Here, the distinction is exemplified by whether the government employee

in question was engaged in the ministerial task of transcribing the record at Mr.

Bandimere’s hearing or was the person who decided on behalf of the United States that his

testimony there was not believable and in what respects, critical issues to determining

whether he ought to incur civil penalties. See id.

       Likewise, final decision-making authority is but one sovereign power, albeit an

important one that is typically sufficient to render an employee an Officer. See, e.g., id. at

882. Though final decision-making authority might be sufficient to make an employee an

Officer, that does not mean such authority is necessary for an employee to be an Officer,

contrary to the dissent’s suggestion and Lucia’s holding—by its refusal to consider any of

the SEC’s ALJs’ other duties and functions. 832 F.3d at 285. Conducting the correct,

nuanced analysis of the powers Congress by statute and the SEC by rule and practice have

afforded its ALJs, the majority correctly reasons that the SEC’s ALJs exercise significant
authority and are thus inferior Officers, subject to the Appointments Clause. The dissent

therefore errs—as do Landry and Lucia—by applying a truncated version of Freytag’s

legal framework.

       Further, even as to its analysis of the SEC’s ALJs’ decision-making authority, the

dissent mischaracterizes the factual record in a manner that it is imperative to correct.

Specifically, the dissent states and then repeatedly relies on the fact that the SEC is not

required to afford its ALJs any deference and that it conducts de novo review of their

decisions to conclude that the ALJs do not “have the sovereign power to bind the

Government and third parties.” Dissent at 1. The dissent also calls this a “difference that

makes all the difference” between the SEC’s ALJs and “the special trial judges at issue in”

Freytag. Id.

       The dissent additionally states that “even where special trial judges” in Freytag

“could not enter binding decisions, their initial decisions had binding effect” because the

Tax Court was “required to presume correct” their “factual findings, including findings of

intent, and to defer to [a] special trial judge’s determinations of credibility.” Id. at 2

(citations omitted). The dissent is undoubtedly correct that “[s]uch deference was a

delegation of significant authority to the special trial judges.” Id. As the dissent goes on

to explain, “[m]any cases before the Tax Court . . . involve critical credibility assessments,

rendering the appraisals of the special trial judge who presided at trial vital to the Tax

Court’s ultimate determination. And . . . findings of fact often conclusively decide tax

litigation, as they did in” Freytag. Id. at 2–3(quotation marks, alteration, and citation

omitted). The dissent is also correct that, “it cannot be reasonably disputed that findings

of fact ‘may well be determinative of guilt or innocence.’” Id. (quoting Napue v. Illinois,


                                                8
360 U.S. 264, 269 (1959)). Indeed, as Napue emphasized, assessing the “truthfulness and

reliability of a given witness” during live testimony is one such critical factual

determination. 360 U.S. at 269.

       The dissent rightly points out that if an agency deferred to its personnel on such

critical issues, “the Appointments Clause would be offended.” Dissent at 5 n.1. But the

dissent then applies these statements in an attempt to distinguish the special trial judges

imbued with that authority from the SEC’s ALJs: “The Securities and Exchange

Commission, by contrast, is not required to give its ALJs any deference” and “may review

its ALJs’ conclusions of law and findings of fact de novo.” Id. at 6. At the same time,

however, the dissent admits that the “SEC may sometimes defer to the credibility

determinations of its ALJs.” Id. at 7 n.3. And the dissent does not attempt to reconcile

that concession with its earlier-stated admission that credibility assessments may be

outcome determinative. Lucia relied in part on this same distinction. 832 F.3d at 286

(stating that the SEC conducts “de novo review” of its ALJs’ decisions); id. at 288 (stating

that the SEC “reviews an ALJ’s decisions de novo,” but acknowledging that the SEC “may

sometimes defer to the credibility determinations of its ALJs,” and citing Landry, 204 F.3d

at 1133, and the SEC’s own regulations and orders sanctioning this practice).

       This characterization of the SEC’s actual process of reviewing its ALJs’ decisions

is wrong, notwithstanding its attempt to characterize its review as “de novo.” David F.

Bandimere, SEC Release No. 9972, 2015 WL 6575665, at *20 (Oct. 29, 2015). In

footnotes 83 and 114 of its opinion in Mr. Bandimere’s case, the SEC reveals the full

effect of affording its ALJs the very deference that the dissent explains runs afoul of the

Appointments Clause. Id. at *15 n.83, *20 n.114. Specifically, the SEC determined that


                                               9
Mr. Bandimere’s “falsely telling [Mr.] Loebe that excess profits would go to a Christian

charity rather than to pay him [was] evidence of [his] intent to deceive.” Id. at *15. In

making that determination, the SEC explained that Mr. “Bandimere testified that he did

not remember making this statement to [Mr.] Loebe, but the ALJ found [Mr.] Loebe’s

testimony more credible than [Mr.] Bandimere’s as to this issue.” Id. at *15 n.83. Then,

instead of rendering its own credibility determination with respect to the conflicting

testimony, the SEC applied its rule that “[a]n ALJ’s credibility findings are entitled to

considerable weight.” Id. (citations omitted). The SEC thus engages in deferential, not de

novo review of key aspects of its ALJs’ decisions.

       The SEC admitted as much when it addressed Mr. Bandimere’s Appointments

Clause challenge. It professed to review its “ALJs’ decisions de novo.” Id. at *20. The

dissent simply takes the SEC at its word. Yet the SEC added the following caveat to that

statement: “We do not view the fact that we accord Commission ALJs deference in the

context of demeanor-based credibility determinations to afford our ALJs with the type of

authority that would qualify them as inferior officers.” Id. at *20 n.114. The SEC

attempted to shore up its conclusion on this Article II question with the disclaimer that it

“will disregard explicit determinations of credibility when [its] de novo review of the

record as a whole convinces [it] that a witness’s testimony is credible (or not) or that the

weight of the evidence warrants a different finding as to the ultimate facts at issue.” Id.

(quotation marks and citations omitted).

       But that proviso is cold comfort to a defendant, like Mr. Bandimere, whose liability

for massive civil penalties depends in no small part on the United States’s assessment of

his credibility during live testimony, credibility determined by the only government


                                              10
employee designated to preside over that testimony—an ALJ. And whatever the SEC

means by its disclaimer, it does not equate to de novo review. Rather, whether the SEC

disagrees with its ALJs’ credibility determinations triggers its own rule that an ALJ’s

evaluation of a witness’s live testimony is entitled to “considerable weight.” Id. at *15

n.83. Thus, at minimum, the SEC’s ALJs exercise significant discretion over issues of

credibility, unchecked by faux “de novo” review.

       As the dissent concedes, affording bureaucrats such deference permits them to

exercise the sovereign authority of the United States in an often-outcome-determinative

fashion that is incompatible with the Appointments Clause. Therefore, even under the

dissent’s (and Lucia’s) truncated Freytag analysis, the majority correctly holds that the

SEC’s ALJs are inferior Officers.




                                             11
15-9586, Bandimere v. SEC

McKAY, Circuit Judge, dissenting

       Notwithstanding the majority’s protestations otherwise, today’s opinion carries

repercussions that will throw out of balance the teeter-totter approach to determining

which of all the federal officials are subject to the Appointments Clause. While the

Supreme Court perhaps opened the door to such an approach in Freytag v.

Commissioner, 501 U.S. 868 (1991), I would not throw it open any further, but in my

view that is exactly what the majority has done. I do not believe Freytag mandates the

result proposed here, and the probable consequences are too troublesome to risk without a

clear mandate from the Supreme Court. I respectfully dissent.

       The majority compares SEC ALJs to the Tax Court’s special trial judges, and it

reasons that because the duties of an ALJ are enough like those of a special trial judge,

ALJs must be “Officers” too. But the similarities between Freytag and this case matter

far less than the differences. Most importantly, the special trial judges at issue in Freytag

had the sovereign power to bind the Government and third parties. SEC ALJs do not.

And under the Appointments Clause, that difference makes all the difference. See

Officers of the United States Within the Meaning of the Appointments Clause, 31 Op.

O.L.C. 73, 73–74 (2007); Raymond J. Lucia Companies v. SEC, 832 F.3d 277, 285–87

(D.C. Cir. 2016).

       The requirements of the Appointments Clause are “designed to preserve political

accountability relative to important Government assignments.” Edmond v. United States,

520 U.S. 651, 663 (1997). It ensures that members of the executive branch cannot

                                            -1-
“escape responsibility” for significant decisions by hiding behind unappointed officials or

otherwise “pretending that” those decisions “are not [their] own.” Free Enter. Fund v.

Public Co. Accounting Oversight Bd., 561 U.S. 477, 497 (2010). Such government

officials— “those who exercise the power of the United States” —must be “accountable

to the President, who himself is accountable to the people.” Dep’t of Transp. v. Ass’n of

Am. R.Rs., 135 S. Ct. 1225, 1238 (2015) (Alito, J., concurring).

       It is not surprising, then, that the Tax Court’s special trial judges were held to be

officers in Freytag. 501 U.S. at 881–82. It is clear from the context, if not the Freytag

opinion, that these special trial judges had been delegated significant authority—much

more authority than SEC ALJs. In some cases, special trial judges could enter final

decisions on behalf of the Tax Court. Freytag, 501 U.S. at 882. In those cases, it was

conceded in Freytag that the special trial judges acted as inferior officers. Id. But even

where special trial judges could not enter final decisions, their initial decisions had

binding effect.

       Where the special trial judges did not issue a final decision, the Tax Court was still

required to presume correct the special trial judge’s factual findings, including findings

of intent, and to defer to the special trial judge’s determinations of credibility. See

Landry v. FDIC, 204 F.3d 1125, 1133 (D.C. Cir. 2000). Such deference was a delegation

of significant authority to the special trial court judges. Many cases before the Tax

Court, including the ones at issue in Freytag, “involve critical credibility assessments,

rendering the appraisals of the [special trial] judge who presided at trial vital to the Tax

Court’s ultimate determinations.” Ballard v. Comm’r, 544 U.S. 40, 60 (2005). In

                                             -2-
Ballard, for example, “[t]he Tax Court’s decision repeatedly [drew] outcome-influencing

conclusions regarding the credibility of Ballard . . . and several other witnesses.” Id.

And as the Freytag petitioners argued, “[f]indings of fact often conclusively decide tax

litigation, as they did in [that] case. Pet’rs’ Br. at 23, Freytag v. Comm’r, 501 U.S. 868

(1991) (No. 90-762), 1991 WL 11007938. Thus, even when the special trial judge was

not authorized to enter a final decision, his initial report often decided the case. The

majority says this overstates the role of special trial judges, but it cannot be reasonably

disputed that findings of fact “may well be determinative of guilt or innocence.” Napue

v. Illinois, 360 U.S. 264, 269 (1959).

       The majority barely mentions that the Tax Court was “required to defer” to the

special trial judges’ factual and credibility findings “unless they were clearly erroneous.”

Landry, 204 F.3d at 1133. But the powers of the special trial judges must be understood

in context. As Freytag illustrates, a special trial judge’s initial decision is not like an

ALJ’s—it is the difference between chiseling in stone and drafting in pencil.

       The majority also fails to appreciate that the Tax Court appeared to defer to its

special trial judges on conclusions of law as well. But this point was squarely before the

Supreme Court. As the Freytag petitioners argued, “[i]n practice, special trial judge

factual findings and legal opinions are routinely adopted verbatim by the regular Tax

Court judges to whom they are assigned.” Brief for Petitioner, supra, at 7. Between

1983 and 1991, when Freytag was decided, every initial report submitted by a special

trial judge was purportedly adopted verbatim—a fact made known to the Freytag Court.

See Pet’rs’ Br., supra, at 6–10.

                                             -3-
         Every reported decision, including the Tax Court’s decision in Freytag,

“invariably beg[an] with a stock statement that the Tax Court judge ‘agrees with and

adopts the opinion of the special trial judge.’” Ballard, 544 U.S. at 46 (citation omitted)

(original brackets omitted); see, e.g., Freytag v. Comm’r, 89 T.C. 849, 849 (1987) (“The

Court agrees with and adopts the opinion of the Special Trial Judge that is set forth

below.”). Following that disclaimer was an opinion issued in the name of the special trial

judge.

         Freytag thus illustrates another point that the majority misses: the Tax Court may

not have even reviewed the supposedly nonfinal decisions of its special trial judges. As

the Freytag petitioners argued before the Supreme Court, that case was “a perfect

example of how special trial judges routinely do the Tax Court’s work with only the most

cursory supervision, if any.” Pet’rs’ Br., supra, at 23. There, “after one of the longest

trials in Tax Court history,” which involved “14 weeks of complex financial testimony

spanning two years of trial” and which produced “9,000 pages of transcript and . . . 3,000

exhibits,” the Tax Court purported to adopt the special trial judge’s report—verbatim—

and filed it as the Tax Court’s decision on the very same day it received the report. Id. at

23, 9. As the Freytag petitioners argued to the Supreme Court, “[t]he special trial judge’s

filing of his report and its verbatim adoption by [Tax Court] Chief Judge Sterrett appear

from the record to have been virtually simultaneous.” Id. at 8. That decision resolved

several unsettled, important legal questions. Yet, according to the docket, the Tax Court




                                             -4-
judge filed the decision as his own on the same day that the special trial judge filed his

proposed findings and opinions. See id.1




1
        The majority’s emphasis on Ballard is misplaced; that case has little to do with the
question before us. In Ballard, a case decided 14 years after Freytag, the government
averred that a Tax Court special trial judge’s report was treated as an “in-house draft to
be worked over collaboratively by the regular [Tax Court] judge and the special trial
judge.” See 544 U.S. 40, 57. The majority puts this averment forward as fact, but the
Ballard Court “[did] not know what happened in the Tax Court, a point that is important
to underscore here.” Ballard, 544 U.S. at 67 (Kennedy, J., concurring). Indeed, the
Court could not have known: the special trial judges’ initial reports were not disclosed
even to the Supreme Court. As the concurring opinion clarified, Ballard should be
interpreted “as indicating that there might be such a practice, not that there is.” Id. The
majority ignores this. The majority also fails to explain why Ballard should color an
interpretation of Freytag when the purported practice had not yet been disclosed, let
alone put in front of the Freytag Court.
        The majority next states that there is “no indication” the Tax Court judge in
Freytag adopted the STJ’s report “verbatim”—but the Tax Court judge purported to do
just that. Freytag, 89 T.C. at 849. Indeed, “[i]n the 880 cases heard between . . . 1983
and . . . 2005, there appear to be no instances in which a special trial judge issued a report
and recommendation that the Tax Court publicly modified or rejected.” Christopher M.
Pietruszkiewicz, Conflating Standards of Review in the Tax Court: A Lesson in
Ambiguity, 44 Houston L. Rev. 1337, 1360 (2008). What’s more, after Ballard was
decided, the Tax Court tried to make good by releasing the undisclosed reports from
every case heard initially by a special trial judge since 1983. Louise Story, Tax Court
Lifts Secrecy, Putting Some Cases in New Light, N.Y. Times, Sept. 24, 2005, at C6. It
could find initial reports in only 117 of the 923 cases. Id. Of those 117 cases, the Tax
Court modified the special trial judges’ recommendations only 4 times. Id. Such figures
demonstrate the level of deference afforded to special trial judges.
        Following its lengthy discussion of the Tax Court’s purported collaborative
practice, the majority says “[w]hat really counts . . . are the STJs features the Supreme
Court relied on” in Freytag. Maj. Op. at 35. But Freytag did not “rely” on this purported
practice—indeed; it had not yet been disclosed by the Tax Court. Taking the majority at
its word, its own reliance on Ballard seems out of place. Instead, we should look to what
was actually before the Freytag Court.
        In any event, whether the Tax Court in practice deferred to the special trial judges
on both facts and law, or whether it directed the outcome of a case while escaping
responsibility by disclaiming the decision is a distinction without a difference. Either
way, the Appointments Clause would be offended.

                                            -5-
       The Freytag petitioners’ point was that special trial judges had as much authority

as Tax Court judges themselves. The petitioners referred to them as “full-fledged

surrogates for the Tax Court judges,” who “exercise virtually the same powers as

presidentially-appointed Tax Court judges.” Id. at 12, 27. The Supreme Court, then, was

thoroughly briefed on the true power of the special trial judges: In some cases, special

trial judges could enter final decisions on behalf of the Tax Court. In others, special trial

judges had, by rule, near-final say on outcome-determinative facts. And in practice they

had de facto power “to issue findings and opinions that may be adopted verbatim by the

Tax Court without meaningful review even in the most complex, significant and far-

reaching cases, as they were [in Freytag].” Id. at 27. Thus, the special trial judges

exercised “significant authority pursuant to the laws of the United States.” Freytag, 501

U.S. at 881 (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).2

       The majority says that “SEC ALJs closely resemble the STJs described in

Freytag.” Maj. Op. at 21. But that is simply not the case. The Securities and Exchange

Commission, by contrast, is not required to give its ALJs any deference. The

Commission may review its ALJs’ conclusions of law and findings of fact de novo. 17

C.F.R. § 201.411(a). It employs ALJs in its discretion, and all final agency orders are

those of the Commission, not of its ALJs. An ALJ serving as a hearing officer prepares


2
       Put another way, the special trial judges had been delegated a portion of the
sovereign powers of the federal government; they could act on behalf of the Tax Court,
and they had the power to bind third parties and the government itself. See Lucia, 832
F.3d at 285. Delegated sovereign authority has long been understood to be a key
characteristic of a federal “office.” See 31 Op. O.L.C. 73 (reviewing historical
precedents leading up to Buckley). And it is delegated sovereignty that is lacking here.
                                             -6-
only an “initial decision.” Id. § 201.360(a)(1). And at any time during the administrative

process, the Commission may “direct that any matter be submitted to it for review.” Id. §

201.400(a). The Commission thus “retains plenary authority over the course of its

administrative proceedings and the rulings of its law judges—both before and after the

issuance of the initial decision and irrespective of whether any party has sought relief.”

Mendenhall, Exchange Act Release No. 74532, 2015 WL 1247374, at *1 (Mar. 19,

2015).3

       On appeal, the Commission is not limited by the record before it. It “may expand

the record by hearing additional evidence” itself or it may “remand for further

proceedings.” Bandimere, SEC Release No. 9972, 2015 WL 6575665 (Oct. 29, 2015)

(internal quotation marks and brackets omitted). The Commission “may affirm, reverse,

modify, set aside” the initial decision or remand, “in whole or in part,” and it “may make

any findings or conclusions that in its judgment are proper and on the basis of the

record.” 17 C.F.R. § 201.411(a). If “a majority of participating Commissioners do not

agree to a disposition on the merits, the initial decision shall be of no effect.” Id. §

201.411(f).

       The majority says that, like special trial judges, SEC ALJs also “exercise

significant discretion.” Maj. Op. at 19. But again the majority misses the point. It is not

3
       It is true, as the majority points out, that the Commission may sometimes defer to
the credibility determinations of its ALJs. But because the Commission has retained
plenary authority over its ALJs, it is “not required to adopt the credibility determinations
of an ALJ.” Lucia, 832 F.3d at 288 (citation omitted). By contrast, the Tax Court was
required to defer to its special trial judges. In my estimate, this power to bind the
government is, in large part, what separates “purely recommendatory power” from
“significant authority,” and ALJs from special trial judges.
                                               -7-
about day-to-day discretion—the Appointments Clause does not care about that. Special

trial judges “exercise[d] significant discretion” in setting the record because the Tax

Court was required to defer to its special trial judges’ findings. We say, for example, that

a “district court has significant discretion in sentencing” because we “review for abuse of

discretion.” United States v. Tindall, 519 F.3d 1057, 1065 (10th Cir. 2008); see also,

e.g., Murphy v. Deloitte & Touche Grp. Ins. Plan, 619 F.3d 1151, 1164 (10th Cir. 2010)

(recognizing that a district court has “substantial discretion in handling discovery

requests,” because our standard of review is highly deferential). Similarly, a special trial

judge had “significant discretion” because the Tax Court had to review its findings

equally deferentially. The Commission, by contrast, does not have to review its ALJ’s

opinions with any deference. An SEC ALJ, thus, does not exercise “significant

discretion” in any meaningful way.

       SEC ALJs, then, possess only a “purely recommendatory power,” Landry, 204

F.3d at 1132, which separates them from constitutional officers. The Supreme Court has

suggested as much. See Free Enter. Fund, 561 U.S. at 507. In Free Enterprise Fund, the

Court explained that its holding “does not address that subset of independent agency

employees who serve as administrative law judges” and that “unlike members of the

[Public Company Accounting Oversight] Board,” who were officers, “many

administrative law judges . . . perform adjudicative rather than enforcement or

policymaking functions, or possess purely recommendatory powers.” Id. at 507 n.10

(citation omitted).



                                            -8-
       The results speak for themselves: Unlike the Tax Court, which purported to adopt

its special tax judges’ opinions verbatim in 880 out of 880 cases between 1983 and 2005,

the Commission followed its ALJs’ recommendations in their entirety in only 3 of the 13

appeals decided thus far in 2016.4 In the other 10 cases, the Commission disagreed with

its ALJs for various reasons: In one case, the Commission reversed its ALJ because the

SEC Enforcement Division failed to meet its burden; in another, it held that civil

penalties, which the ALJ had recommended, were not available due to the statute of

limitations.

       In the end, then, it is the Commission that “ultimately controls the record for

review and decides what is in the record.” Lucia, 832 F.3d at 288 (citation omitted); see

also Nash v. Bowen, 869 F.2d 675, 680 (2d Cir. 1989) (recognizing that, under 5 U.S.C. §

557(b), the agency “retains ‘all the powers which it would have in making the initial

decision’”). It is the Commission that enters the final order—in all cases—and it is the

commissioners who shoulder the blame.

       The majority argues that the current process for selecting ALJs “does not lend

itself to . . . accountability,” Maj. Op. at 23, but it is quite clear where the buck stops.

4
       See Grossman, Release No. 10227, 2016 WL 5571616 (Sept. 30, 2016); Schalk,
Release No. 10219, 2016 WL 5219501 (Sept. 21, 2016); Cohen, Release No. 10205,
2016 WL 4727517 (Sept. 9, 2016); optionsXpress, Inc., Release No. 10125, 2016 WL
4413227 (Aug. 18, 2016); Gonnella, Release No. 10119, 2016 WL 4233837 (Aug. 10,
2016); Aesoph, Release No. 78490, 2016 WL 4176930 (Aug. 5, 2016); Malouf, Release
No. 10115, 2016 WL 4035575 (July 27, 2016); J.S. Oliver Capital Management, L.P.,
Release No. 10100, 2016 WL 3361166 (June 17, 2016); Riad, Release No. 78049, 2016
WL 3226836 (June 13, 2016); Page, Release No. 4400, 2016 WL 3030845 (May 27,
2016); Doxey, Release No. 10077, 2016 WL 2593988 (May 5, 2016); Young, Release
No. 10060, 2016 WL 1168564 (March 24, 2016); Wulf, Release No. 77411, 2016 WL
1085661 (Mar. 21, 2016).
                                        -9-
Because the Commission is not bound in any way by its ALJ’s decisions, unlike the Tax

Court, the blame for its unpopular decisions will fall squarely on the commissioners and,

in turn, the president who appointed them. So long as the commissioners have been

validly appointed, the Appointments Clause is satisfied.

       Putting aside that the Commission is not bound—in any way—by an ALJ’s

recommendations, amici’s attempt to analogize SEC ALJs to magistrate judges only

serves to highlight the difference between ALJs and constitutional officers. Unlike ALJs,

magistrate judges have been delegated sovereign authority and have the power to bind the

government and third parties. Magistrate judges are authorized to issue arrest warrants,

18 U.S.C. § 3041; determine pretrial detention, id. §§ 3141, 3142; detain a material

witness, id. § 3144; enter a sentence for a petty offense, without the consent of the United

States or the defendant, 28 U.S.C. § 636(a)(4); and issue final judgments in misdemeanor

cases and all civil cases with the consent of the parties, id. §636(a)(5), (c); 18 U.S.C.

§3401. Magistrate judges may also impose sanctions for contempt. 28 U.S.C. § 636(e).

SEC ALJs can do none of these things.

       The majority’s reliance on Supreme Court decisions from the nineteenth century

and early twentieth century is equally problematic. The majority’s casual citation to

these cases might lead one to believe there is a body of caselaw to which we can

analogize. But these decisions “often employed circular logic, granting officer status to

an official based in part upon his appointment by the head of a department.” Landry, 204

F.3d at 1132–33. For example, United States v. Mouat, 124 U.S. 303 (1888), cited by the

majority, held that “[u]nless a person . . . holds his place by virtue of an appointment by

                                            - 10 -
the President, or of one of the courts of justice or heads of Departments authorized by law

to make such an appointment, he is not, strictly speaking, an officer of the United States.”

Id. at 307; see also Free Ent. Fund, 561 U.S. at 539 (Breyer, J., dissenting) (quoting

commentary that described “early precedent as ‘circular’ and [the Court’s] later law as

‘not particularly useful’”).

       Finally, I began this dissent by expressing my fears of the probable consequences

of today’s decision. It does more than allow malefactors who have abused the financial

system to escape responsibility. Under the majority’s reading of Freytag, all federal

ALJs are at risk of being declared inferior officers. Despite the majority’s protestations,

its holding is quite sweeping, and I worry that it has effectively rendered invalid

thousands of administrative actions. Today’s judgment is a quantitative one—it does not

tell us how much authority is too much. It lists the duties of SEC ALJs, without telling us

which, if any, were more important to its decision than others and why. And I worry that

this approach, and the end result, leaves us with more questions than it answers.

       Are all federal ALJs constitutional officers? Take, for example, the 1,537 Social

Security Administration (SSA) ALJs,5 who collectively handle hundreds of thousands of

hearings a year.6 SSA ALJs, like SEC ALJs, are civil service employees in the

“competitive service” system. 5 C.F.R. § 930.201(b). In addition to presiding over

5
        See Office of Pers. Mgmt., ALJs by Agency, https://www.opm.gov/services-for-
agencies/administrative-law-judges/#url=ALJs-by-Agency (last visited Oct. 31, 2016).
According to the Office of Personnel Management’s latest count, there are 1,792 total
federal administrative law judges. Id.
6
        See SSA, Annual Performance Report 2014-2016, Table 3.1h, at 82, available at
http://www.ssa.gov/agency/performance/2016/FINAL_2014_2016_APR_508_compliant.
pdf.
                                          - 11 -
sanctions actions, which are adversarial, see 20 C.F.R. § 404.459, SSA ALJs conduct

nonadversarial hearings to review benefits decisions, see id. §§ 404.900, 405.1(c),

416.1400. In these proceedings, the claimant may appear, submit evidence, and present

and question witnesses. Id. §§ 404.929, 404.935, 416.1429, 416.1435. Like SEC ALJs,

SSA ALJs “regulate the course of the hearing and the conduct of representatives, parties,

and witnesses.” Id. § 498.204(b)(8). Like SEC ALJs, SSA ALJs administer oaths and

affirmations, see id. § 404.950, and examine witnesses, id. § 498.204(b)(9). Like SEC

ALJs, SSA ALJs may receive, exclude, or limit evidence. Id. § 498.204(b)(10).

      If a claimant is dissatisfied with an SSA ALJ’s decision, he may seek the SSA’s

Appeals Council’s review. The Appeals Council may then deny or dismiss the request

for review or grant it. Id. §§ 404.967, 416.1467. Like the Securities and Exchange

Commission, the Appeals Council may also review an ALJ’s decision on its own motion.

Id. §§ 404.969(a), 416.1469(a). After it has reviewed all the evidence in the ALJ’s

hearing record and any additional evidence received, the Appeals Council will make a

decision or remand the case to an ALJ. Id. §§ 404.977, 404.979, 416.1477, 416.1479.

The Appeals Council may affirm, modify or reverse the ALJ’s decision. Id. If no review

is sought and the Appeals Council does not review the ALJ’s decision on its own motion,

the ALJ’s decision becomes final. See id. §§ 404.955, 404.969, 416.1455, 416.1469.

      This should all sound familiar. SSA ALJs have largely the same duties as SEC

ALJs, and the appeals process appears similar as well. But the parallels between SEC

ALJs and SSA ALJs do not end there. Like SEC ALJs, SSA ALJs can hold prehearing

conferences, id. § 405.330; punish contemptuous conduct by excluding a person from a

                                          - 12 -
hearing, see Social Security Administration Hearings, Appeals and Litigation Law

Manual (HALLEX), I-2-6-60 (Jan. 15, 2016)7; rule on dispositive and procedural

motions, 20 C.F.R. § 498.204(b); rule on sanctions, see HALLEX, I-2-10-16; and take

depositions, see HALLEX, I-2-6-22. Like SEC ALJs, an SSA ALJ “may, on his or her

own initiative or at the request of a party, issue subpoenas for the appearance and

testimony of witnesses and for the production of books, records, correspondence, papers,

or other documents that are material to an issue at the hearing.” 20 C.F.R. § 404.950.

Like SEC ALJs, though, SSA ALJs cannot enforce or seek enforcement of a subpoena;

the SSA itself would have to get an order from a federal district court to compel

compliance. See 42 U.S.C. § 405(e).

       This is all to say that SEC ALJs are not unique. I cannot discern a meaningful

difference between SEC ALJs and SSA ALJs under the majority’s reading of Freytag.

Indeed, litigants have already begun drawing this precise comparison between SEC ALJs

and SSA ALJs. See, e.g., Manbeck v. Colvin, No. 15 CV 2132 (VB), 2016 WL 29631

(S.D.N.Y. Jan. 4, 2016). Insofar as SSA ALJs are not appointed by the president, a court

of law, or the head of a department, cf. O’Leary v. Office of Pers. Mgmt., No. DA-300A-

12-0430-B-1, 2016 WL 3365404 (M.S.P.B. June 17, 2016), today’s decision risks

throwing much into confusion. “Does every losing party before an ALJ now have

grounds to appeal on the basis that the decision entered against him is unconstitutional?”

Free Enter. Fund, 561 U.S. at 543 (Breyer, J., dissenting). It certainly seems that way.




7
       Available at https://www.ssa.gov/OP_Home/hallex/hallex-I.html.
                                         - 13 -
       And what of the ALJs going forward? When understood in conjunction with Free

Enterprise Fund, I worry today’s opinion will be used to strip ALJs of their dual layer

for-cause protection. In Free Enterprise Fund, the Supreme Court held that “dual for-

cause limitations on the removal” of some inferior officers is unconstitutional. 561 U.S.

at 492. Presently, SEC ALJs (and SSA ALJs) have such dual for-cause protection: An

SEC ALJ may only be removed by the Merit Systems Protection Board and only for good

cause. See 5 U.S.C. § 7521(a), (b). The members of the Merit Systems Protection Board

are themselves protected from at-will removal. Id. at § 1202. I appreciate that this issue

is not before the court, but today’s decision makes it more likely that either ALJs or the

Board, or both, will lose this civil service protection. See Free Enter. Fund., 561 U.S.

477, 542, 525 (2010) (Breyer, J., dissenting).8

       I am similarly concerned about what the majority’s decision portends for untold

rules and regulations. “Although almost all rulemaking is today accomplished through

informal notice and comment, the APA actually contemplated a much more formal

process for most rulemaking. To that end, it provided for elaborate trial-like hearings in

which proponents of particular rules would introduce evidence and bear the burden of

proof in support of those proposed rules.” Perez v. Mortg. Bankers Ass’n, 135 S. Ct.

1199, 1222 n.5 (2015) (Thomas, J., concurring) (citing 5 U.S.C. § 556).




8
       Whether federal ALJs should receive such dual for-cause protections is perhaps a
question that could be debated, but Congress has already decided this question in favor of
protecting ALJs, and the majority opinion shows little concern for the way its decision
will overturn congressional intent and disrupt a system that has been in place for decades.
                                           - 14 -
       Formal rulemaking proceedings must be presided over by an agency official or an

ALJ. An ALJ’s function in formal rulemaking is nearly identical to its function in formal

adjudications. See 5 U.S.C. §§ 556, 557. So, if ALJs are officers for purposes of formal

adjudication, as the majority so holds, they must also be officers for formal rulemaking.

See also Freytag, 501 U.S. at 882 (“Special trial judges are not inferior officers for

purposes of some of their duties under § 7443A, but mere employees with respect to

other responsibilities. . . . If a special trial judge is an inferior officer for purposes of

subsections (b)(1), (2), and (3), he is an inferior officer within the meaning of the

Appointments Clause and he must be properly appointed.”). Though formal rulemaking

is much rarer today, see Perez 135 S. Ct. at 1222 n.5, this was not always the case. And I

worry that rules and regulations that were promulgated via formal rulemaking before an

agency ALJ and are still enforced today are now constitutionally suspect.9

       Today’s holding risks throwing much into disarray. Since the Administrative

Procedures Act created the position of administrative law judge in 1946, the federal

government has employed thousands of ALJs to help with the day-to-day functioning of

the administrative state. Freytag, which was decided 25 years ago, has never before been

extended by a circuit court to any ALJ. And yet, the majority is resolved to create a


9
        Some of these questions could, perhaps, be resolved by an explicit statement that
the opinion does not apply retroactively. See e.g., Buckley, 424 U.S. at 142 (holding that
the appointment of some Commissioners violated the Appointments Clause, but that the
“past acts of the Commission are therefore accorded de facto validity,” even though
“[t]he issue [was] not before [the Court].” Id. at 744 (Burger, C.J., concurring in part and
dissenting in part)). But see Maj. Op. 36 (“Questions about . . . retroactivity are not
issues on appeal . . . . we must leave for another day any putative consequences of [our]
conclusion.’”).
                                             - 15 -
circuit split. When there are competing understandings of Supreme Court precedent, I

would prefer the outcome that does the least mischief.

       Furthermore, faced with such uncertainty, “we must hesitate to upset the

compromises and working arrangements that the elected branches of Government

themselves have reached.” NLRB v. Noel Canning, 134 S. Ct. 2550, 2560 (2014).

Judicial review must fit the occasion. In a close case regarding the application of a

constitutional rule in a discrete factual setting, and without much precedent to guide us,

deference to Congress seems particularly relevant. I respectfully dissent.




                                           - 16 -
