Circuits Split On SEC Judges’ Constitutionality

Fenwick’s securities enforcement co-chair Michael Dicke was quoted in a Law360 article about the likelihood that the U.S. Supreme Court would review the constitutionality of the U.S. Securities and Exchange Commission’s (SEC’s) administrative law judges.

The Tenth Circuit split from the D.C. Circuit on Dec. 27, 2016 when a divided three-judge panel overturned SEC sanctions against Colorado resident David F. Bandimere, finding that the sanctions had to be set aside because the administrative law judge presiding over Bandimere’s case was an inferior officer who should have been appointed, rather than hired, under the appointments clause of the U.S. Constitution, Law360 reported.

“The classic way that cases get before the U.S. Supreme Court is when there’s a clear circuit split,” said Dicke, who previously served as the associate regional director for enforcement in the SEC’s San Francisco regional office.

Before the cases can reach the high court, they may be reheard by the appellate courts.

Dicke, who previously clerked for Chief Judge Donald P. Lay of the Eighth Circuit, told Law360 that it’s likely the Tenth Circuit will agree to rehear the divided opinion, as judges in the circuit will be interested in grappling with the constitutional question. He also discussed the changes the SEC might need to make should the Supreme Court side with the Tenth Circuit.

The full article is available through the Law360 website​ (subscription required).