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
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).
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).
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