Bioelectronics Corp (BIEL)

[seven-up]

Biel should be good to go they have stated the violation many times.
1. This Court decisions and rulings violate the Appointments Clause;
2. The structural defects from violation of the Appointments Clause are not curable;
Jan. 2018 filing

March 2018 Filing
2 ALJ Elliot was not properly appointed under the Appointments Clause of the US Constitution.
Bandimere v. United States Securities and Exchange Commission, AP# 15-9586, 844 F.3d 1168 (10th
Cir. 2016), citing Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991)); see also
RaymondJ. Lucia Cos., Inc. v. SEC, 832 F.3d 277 (D.C. Cir. 2016). The Ratification Order did not
cure the Appointments Clause violation. Because the SEC's ALJ's were hired by the OPM, not
appointed under the Appointments Clause, there was no appointment to ratify. See Marbury v.
Madison, 5 U.S. 137, 157 (1803). Separately, the purported ratification fails to satisfy common law
elements of ratification. A "ratifier must, at the time of ratification, still have the authority to take the
action to be ratified. Second, the ratifier must have full knowledge of the decision to be ratified. Third,
the ratifier must make a detached and considered affirmation of the earlier decision." Advanced
Disposal Servs. E. v. NLRB, 820 F.3d 592, 602 (3d Cir. 2016). The first element fails because the
OPM is not the agent of the Commission and the Commission is not the principal of the OPM. The
OPM hired ALJ Elliot. The OPM did not and could not appoint him. The Commission can, at most,
ratify the hiring. It cannot ratify an appointment that did not occur in the first place. See 5 U.S.C. §
1302; 5 C.F.R. §§ 930.201, 930.204, 337.101; OPM, Qual. Standard for Admin. Law Judge Positions,
https://perma.cc/2G7J-X5BW. The third element also fails. The Commission did not make a
"detached affirmation" of such appointments. The Commission's so-called ratification of every ALJ
reflects a legal strategy, not an independent analysis.
2
3. This case implicates several important legal issues and issues pertaining to the proper exercise
of discretion and application of law or policy that are important and that the Commission should
review, including:
a. Whether its ALJ's have been Constitutionally appointed? See footnote 2.
b. Whether a violation of the Appointments Clause constitutes a structural error requiring
automatic reversal of the Initial Decision? Bandimere at 1181, citing, among other cases, Plaut v.
Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995); and Rivera v. Illinois, 556 U.S. 148, 161 (2009).
c