Earlier this week, the D.C. Circuit court issued a surprising decision in Lucia v. SEC. The case addresses whether administrative law judges (ALJs) are “inferior officers” and are therefore subject to the appointments clause. But the heart of the case is far less wonky than it seems. The question is really this: what makes a judge a judge? If a person has the power to ruin a company, bankrupt a person, force the person to give up a lifelong profession, and bar the individual from interacting with friends and former colleagues, and if the person does this wearing a black robe and sitting amidst the trappings of court of law, is that person an officer? Because ALJs do all of this and more. Their decisions about whether evidence is admissible and their determinations about whether a witness is lying have a profound effect not only on the hearings over which they preside, but over any subsequent appeal. If this much authority and discretion are not enough, what on earth is?

It seems the judges, who sat en banc to hear the case (a rare occurrence, signaling a case of particular import), could not agree. They split right down the middle and deadlocked. The earlier decision will stand…for now. The case is almost assuredly bound for the Supreme Court. But until the High Court takes it up (and while it seems this is the sort of case they would take, there are no guarantees on that front), the D.C. Circuit’s earlier ruling, finding that ALJs are not inferior officers but “mere employees” will stand.

Aside from the absurdity of stating that individuals with so much authority are “mere employees,” the earlier ruling is problematic for the simple reason that it relies on a poorly reasoned ruling in an earlier case by the same court. In Landry v. FDIC, the D.C. Circuit considered the role of ALJs at the FDIC and found they were simply employees because their decisions were not final; they were final only when issued by the FDIC itself. Similarly, ALJs at the SEC issue “initial,” not “final” decisions. 

It seems odd that an individual could perform almost all the same tasks a federal judge does, and yet because there is the possibility that the full commission could review and overturn the “initial” decision, that individual lacks the discretion of even an inferior officer. It also seems I am not alone in my opinion. The D.C. Circuit expressly stated its interest in revisiting Landry when it agreed to hear Lucia en banc. Unfortunately, my opinion seems to be shared with only an even half of the sitting judges in this Circuit. We will simply have to wait to see what the Justices up the way make of it.