Administrative Law Judge Cameron Elliot has declined the SEC's unusual request In the Matter of Timbervest LLC et al. As discussed here, on June 4, 2015, the SEC issued an order in that case in which it stated that "we are hereby inviting ALJ Elliot to file by July 1, 2015, an affidavit addressing whether he has had any communications or experienced any pressure" to find in favor of the SEC in his cases.
On June 9, Judge Elliot sent his regrets, effectively RSVP'ing "no" to this odd invitation. The WSJ reports that in a one-sentence email, Judge Elliot simply wrote, "I respectfully decline to submit the affidavit requested."
The SEC's request followed a May 6, 2015 Wall Street Journal article in which former ALJ Lillian McEwen said that while she was an ALJ, the SEC's chief judge questioned her loyalty to the SEC for finding too often in favor of defendants. Respondents in the Timbervest case have requested to take depositions of Judge Elliot, Chief Judge Brenda Murray, and former Judge McEwen on whether there is pressure on ALJs to rule in favor of the Commission.
Kent Barnett, assistant law professor and administrative law expert at the University of Georgia, told the WSJ that be believed that the SEC's invitation was unprecedented--and "seems bizarre." Barnett added that it was “not clear why the SEC is doing this – it may be for public relations purposes.”
It is also not clear where this leaves matters in the Timbervest case, where the respondents are seeking depositions and a substantial number and range of documents in support of their claim that the "administrative forum lacks impartiality." The Commission stated in its June 4 "invitation" that it believed an affidavit from Judge Elliot would assist in its consideration of the respondents' motion for discovery, but that assistance will apparently not be forthcoming.