Absent Federal Rules of Procedure: Reflection on SEC Trail Practice

By: Hilary Barnard, 2L, Journal Staff Member

It is an interesting development within the Security Exchange Commission (SEC) proceedings that SEC alternative procedure can circumvent the Federal Rules of Civil Procedure. Glassman mentions this within his article about Constitutional challenges to administrative proceedings. There are still levels of protection and efficiency in the process. In giving regard to the pubic interest and urgency of the subject matter, a hearing will occur in a time frame of 120 to three hundred days. See 17 C.F.R. § 201.360(a)(2). In a federal, civil trial the process of discovery alone may take that time period. The relative speed at which SEC administrative hearings occur may be beneficial to parties. Parties may also benefit from the subject matter expertise of the SEC in lieu of the district courts.

What Glassman does not spend a lot of time addressing in his article are protections preserved by the Federal Rules of Civil Procedure and the Federal Rules of Evidence. Further, Glassman does not spend a lot of time addressing the formality or informality of the SEC hearings. Under the Administrative Procedure Act Section 554 details the nature of formal agency adjudications, and Section 556(c) lays out the foundation for the reception of evidence for a hearing. It is these very formal devises that agencies must now rely on as Dodd-Frank continues to increase their dockets. The more items on the docket, and the more challenges to agency action, the more important the adjudicatory process is to ensure the integrity of the administrative adjudication process.