A team of GW Law professors worked together to develop an amicus brief to the Supreme Court in the case of Raymond J. Lucia Cos., Inc. v. Securities & Exchange Commission, which concerns the validity of Administrative Law Judges (ALJ) and Administrative Judges (AJ). Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, created the first draft of the brief and later recruited, Emily Hammond, Glen Earl Weston Research Professor; Robert L. Glicksman, J. B. and Maurice C. Shapiro Professor of Environmental Law; Jonathan R. Siegel, F. Elwood and Eleanor Davis Research Professor of Law; and Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, to provide input in producing a final brief, which was filed earlier this year. The U.S. Supreme Court will decide whether the Securities and Exchange Commission's in-house judges were appointed in violation of the Constitution; the case could upend administrative hearing systems across the federal government. The history of ALJs—and in particular, the importance of their independence within agencies, sheds important light on this case. The brief respectfully urged the Court to evaluate this case in light of the congressional purpose of ensuring the independence and neutrality of ALJs. These features, in turn, protect the property and liberty interests at stake in agency adjudications and, ultimately, act as checks on agency power.
The brief took no position on whether ALJs are employees or inferior officers. It urged the Court to issue an opinion that respects the decision that Congress made unanimously in 1946 to enact numerous statutory safeguards that assure that ALJs have decisional independence from the agencies where they work while assuring that agencies retain control over the policy content and legal basis for any decision made in an adjudication in which an ALJ presides. Professor Pierce had been working on a draft brief for some time; when he was ready to circulate it, the others went through it and shared their additions and edits. Despite their different views of administrative law, the authors were able to produce "a good product that could assist the Supreme Court," Professor Siegel said. There were several key factors that ensured their success, Professor Pierce explained. "We respect each other. We put aside any defensive tendencies and considered suggestions and criticisms with an open mind."
After Professor Pierce completed the initial work of the draft, and by the time the others got involved, they spent about six weeks sharing drafts. The five authors exchanged more than 100 emails and produced approximately 15-20 drafts. Once they made their edits, the final version was sent to 24 other scholars who agreed to participate in the brief. "I learned a lot from my colleagues, and the product was much better than it would have been if I had written it alone," Professor Pierce said.
Professor Pierce explains, in part, why the brief was filed. "The scholars who participated in the brief believe that the statutory safeguards of the decisional independence of ALJs in the Administrative Procedure Act (APA) are important to minimize the risk that ALJs will make decisions in their capacities as presiding officers that reflect pro-agency bias. They believe that a broadly worded opinion in Lucia could include either language that places those safeguards at imminent risk or language that has the effect of insulating those safeguards from the risk of future judicial nullification."
Of the experience, Professor Hammond shared her thoughts on how she, and the others, benefited from collaborating on this brief, saying, "It contributes to our sense of community; it makes the final product better than one any individual might have written; it stimulates deeper thinking for future projects and classroom discussions; and it strengthens our relationships as colleagues."
The brief concludes by urging the Court to issue an opinion that respects the decision that Congress made in 1946 to insulate ALJs from potential sources of pro-agency bias by including in the APA a combination of provisions that confer decisional independence on ALJs. The Supreme Court will hear the oral arguments in Lucia today, which will be broadcast by C-SPAN.