Justices invite O’Melveny’s Metlitsky to defend lower court Lucia ALJ judgment

By Mark S. Nelson, J.D.The Supreme Court has invited O'Melveny & Myers LLP partner Anton Metlitsky to serve as amicus curiae in Lucia v. SEC to defend the judgment below in which the D.C. Circuit Court held that the SEC’s administrative law judges are employees rather than inferior officers who must be appointed in conformance with the U.S. Constitution’s Appointments Clause. The justices recently agreed to hear Raymond Lucia’s appeal regarding the constitutional status of the SEC’s ALJs (Lucia argues the ALJs are officers); a decision in the case also may impact other federal agencies. The appointment of an amicus became necessary when the government confessed error in its certiorari-stage brief by ceasing to defend the SEC’s view that its ALJs are employees and instead conceded that the SEC’s ALJs are officers (Lucia v. SEC, January 18, 2018).Although Lucia would be Metlitsky’s first argument before the Supreme Court, he does…

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