DD Support Board and Research Team

[lucky, mydog]

UNITED STATES OF AMERICA
before the
SECURITIES AND EXCHANGE COMMISSION
SECURITIES ACT OF 1933
Release No. 10536 / August 22, 2018
SECURITIES EXCHANGE ACT OF 1934
Release No. 83907 / August 22, 2018
INVESTMENT ADVISERS ACT OF 1940
Release No. 4993 / August 22, 2018
INVESTMENT COMPANY ACT OF 1940
Release No. 33211 / August 22, 2018
In re:
Pending Administrative Proceedings ORDER
On November 30, 2017, we ratified the appointments of Chief Administrative Law Judge
Brenda Murray and Administrative Law Judges Carol Fox Foelak, Cameron Elliot, James E.
Grimes, and Jason S. Patil to the office of administrative law judge in the Securities and
Exchange Commission.
1
In an abundance of caution and for avoidance of doubt, we today
reiterate our approval of their appointments as our own under the Constitution.
In light of the Supreme Court’s decision in Lucia v. SEC,
2
we previously stayed any
pending administrative proceeding initiated by an order instituting proceedings that commenced
the proceeding and set it for hearing before an ALJ, including any such proceeding currently
pending before the Commission.3
We now find it prudent to allow the stay to expire effective
today, August 22, 2018.
With respect to any such proceeding currently pending before an ALJ or the Commission,
we order that respondents be provided with the opportunity for a new hearing before an ALJ who
did not previously participate in the matter. We remand all proceedings currently pending before
the Commission to the Office of Administrative Law Judges for this purpose and vacate any

1 Order, Exchange Act Release No. 82178, 2017 WL 5969234 (Nov. 30, 2017); see also
SEC Ratifies Appointment of Administrative Law Judges, https://www.sec.gov/news/pressrelease/2017-215
(Nov. 30, 2017).
2
138 S. Ct. 2044 (2018).
3 Order, Exchange Act Release No. 83675, 2018 WL 3494802 (July 20, 2018); Order,
Exchange Act Release No. 83495, 2018 WL 3193858 (June 21, 2018).
2
prior opinion we have issued in the matter. A list of matters is attached as Exhibit A. In these
matters, as well as the matters currently pending before an ALJ, we direct the conduct of further
proceedings consistent with this order and the Court’s decision in Lucia v. SEC. The ALJs are
directed to notify the parties in the cases pending before them of this order.
Any pending deadlines in each administrative proceeding currently pending before an
ALJ or remanded to the Office of Administrative Law Judges, as described above, are hereby
vacated and superseded by the procedures and deadlines set forth in this order. In each such
proceeding, absent express agreement by the parties regarding alternative procedures, the Chief
Administrative Law Judge shall by rotation to the extent practicable designate an ALJ who did
not previously participate in the matter to be the presiding hearing officer.4
Any agreement by
the parties regarding alternative procedures shall be submitted to the Chief Administrative Law
Judge by September 7, 2018. In all cases, assignments shall be made no later than September 21,
2018.
The assigned ALJ shall exercise the full powers conferred by the Commission’s Rules of
Practice and the Administrative Procedure Act and shall not give weight to or otherwise presume
the correctness of any prior opinions, orders, or rulings issued in the matter.5
Within 21 days of
being assigned to the proceeding, the ALJ shall issue an order directing the parties to submit
proposals for the conduct of further proceedings. After considering the parties’ submissions, the
ALJ shall hold a new hearing and prepare an initial decision; but if a party fails to submit a
proposal, the ALJ may enter a default against that party pursuant to Rule of Practice 155 or
impose another appropriate sanction under Rule of Practice 180.6

The Rules of Practice as amended on July 13, 2016 shall govern all pending
proceedings,7
unless the presiding ALJ determines, after giving the parties notice and an

4
17 C.F.R. § 200.30-10(a)(2).
5
E.g., Rule of Practice 111, 17 C.F.R. § 201.111; 5 U.S.C. § 556.
6
17 C.F.R. §§ 201.155, .180.
7
In proceedings instituted before the effective date of the amended Rules of Practice, the
Commission directed the ALJ to issue an initial decision within 120, 210, or 300 days of service
of the OIP; for purposes of applying the amended Rules of Practice to such proceedings, they
shall be deemed proceedings under the 30-, 75-, or 120-day timeframes, respectively, as
specified in Rule of Practice 360(a)(2). In all proceedings, the ALJ shall compute the deadlines
for scheduling a hearing and issuing an initial decision as specified in amended Rule of Practice
360(a)(2) from the date the proceeding is assigned to a hearing officer pursuant to this order,
rather than the date of service of the relevant order instituting proceedings. The deadlines stated
in this order confer no procedural or substantive rights on any party, and the presiding ALJ may,
for good cause shown, modify any of them, including the date by which the initial decision must
be issued. This grant of authority allowing the presiding ALJ to modify the deadlines stated in
(footnote continued . . . )
3
opportunity to be heard, that application of a particular amended rule in a proceeding instituted
prior to their effective date would not be just and practicable or otherwise would work a manifest
injustice under the circumstances of that case, in which case the former rule applies.
This order does not preclude the Commission from assigning any proceeding to the
Commission itself or to any member of the Commission at any time.
By the Commission.
Brent J. Fields
Secretary

( . . . continued)
this order supersedes the provisions in Rule of Practice 360(a)(3)(i) and (ii) governing the
circumstances under which the deadlines to issue initial decisions may be e

https://www.sec.gov/litigation/opinions/2018/33-10536.pdf