Bioelectronics Corp (BIEL)

[srinsocal]

BIEL did question the Constitutionality of the AP Judges

3/31/2017 BIEL Appeal Brief
A. ALJ Elliot's Appointment Did Not Comply with the Appointments Clause. ALJ Elliot was not properly appointed under the Appointments Clause of the United States Constitution. Bandimere v. United States Securities and Exchange Commission, AP# 159586, 844 F.3d 1168 (l01h Cir. December 27, 2016), citing Freytag v. Commissioner of Internal
Revenue, 501 U.S. 868 (1991)). Because the proceedings here were conducted by ALJ Elliot, the same judge whose decision was overturned in Bandimere, there can be no doubt that his appointment did not comply with the Appointments Clause. Violations of the Appointments Clause of the United States Constitution constitute a structural error requiring automatic reversal of the Initial Decision. See Bandimere at footnote
31, citing Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 239 (1995); Rivera v. Jllinois, 556 U.S. 148, 161 (2009); Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 796 F.3d 111, 123
(D.C. Cir.2015); and United States v. Solon, 596 F.3d 1206, 1211 (10th Cir. 2010).

https://www.sec.gov/litigation/apdocuments/3-17104-event-139.pdf

2/14/2018 Ratifying Order
2. Respondents also assert that the Commission’s ratification of my appointment as a Commission administrative law judge was invalid. Respondents Br. 4-5. This argument is unavailing. The Commission’s ratification order “put to rest any claim that administrative proceedings pending before, or presided over by, Commission administrative law judges violate the Appointments Clause.” Pending Admin. Proc., 2017 SEC LEXIS 3724, at *1 (Nov. 30, 2017). Respondents’ contention that the Commission “could not and did not make a ‘detached affirmation’” of the appointment of its administrative law judges is unsupported by any evidence, and is inconsistent with the ratification order itself, which was obviously the result of careful deliberation. Respondents Br. 5. And even if it were “nothing more than a rubberstamp,” the Commission’s ratification still resolved any Appointments Clause deficiencies. CFPB v. Gordon, 819 F.3d 1179, 1191-92 (9th Cir. 2016) (quoting FEC v. Legi-Tech, 75 F.3d 704, 709 (D.C. Cir. 1996)); see Wilkes-Barre Hosp. Co. v. NLRB, 857 F.3d 364, 372 (D.C. Cir. 2017).

https://www.sec.gov/alj/aljorders/2018/ap-5591.pdf