Amicus Brief: Fleming et al. v. United States Department of Agriculture

AMICUS BRIEF SUMMARY

The U.S. Court of Appeals for the District of Columbia issued a disappointing ruling on February 16, 2021, in the case of Fleming, et al. v. United States Department of Agriculture —leaving Mr. Fleming in a legal limbo where his constitutional separation-of-powers claim cannot be heard by an Article III judge. The Fleming case contested the U.S. Department of Agriculture’s (USDA) use of unconstitutional administrative law judges (ALJs) in a way that violates Article II of the U.S. Constitution.

NCLA filed an amicus brief in March 2020, citing the U.S. Supreme Court’s 2018 decision in Lucia v. SEC and taking issue with the USDA’s use of unconstitutional ALJs. Mr. Fleming was sanctioned by a USDA ALJ who was an “officer of the United States” but was not appointed consistent with the Appointments Clause and was unconstitutionally insulated by multiple levels of tenure protection.  Therefore, Mr. Fleming had a right to have an Article III court rule on those important constitutional issues and ensure that he was not tried in front of a constitutionally defective ALJ. The District of Columbia Circuit’s decision to ignore the Supreme Court and create new ways to abdicate its constitutional role was troubling. The court has relented its duty to resolve constitutional questions about administrative adjudications—where Americans are tried before state agencies’ own in-house ALJs that are constitutionally defective.

What makes the decision so shocking is that the USDA told Mr. Fleming during his administrative appeal that his constitutional claims would have to wait until he got to federal court.  Then, once he did, USDA reversed its position and urged the D.C. Circuit to punish Mr. Fleming for not having the agency decide the claims first.  As Judge Rao observed in her forceful dissent, the court’s failure to act has trapped “petitioners in an administrative-judicial hall of mirrors. … The majority allows the government to argue before the agency that constitutional questions should be left to the courts and then argue before this court that constitutional questions should be left to the agency.”

NCLA represented clients Ray Lucia and Christopher Gibson in Lucia v. SEC and Gibson v. SEC before the Ninth and Eleventh Circuits respectively, who were challenging the multiple for-cause removal protections enjoyed by ALJs. NCLA currently represents Michelle Cochran with the same constitutional claim against the Securities and Exchange Commission.

“In the wake of the Supreme Court’s restoration of the proper separation of powers in Lucia, the U.S. Courts of Appeals have gone out of their way to come up with new and evasive reasons why courts should refuse to answer questions within their Article III jurisdiction. By turning a blind eye to the Petitioners’ separation-of-powers claim in Fleming, the D.C. Circuit has only created a new separation of powers issue: abdicating its duty to resolve constitutional questions that arise in administrative adjudications,” said NCLA Litigation Counsel, Jared McClain.

No statute, law, or court precedent compelled the D.C. Circuit’s decision. Longstanding precedent requires courts to fulfill their “unflagging” duty to hear such constitutional challenges that protect Americans from this merciless and illogical flex of government power. These cases have caused NCLA to confront a variety of issues relating to administrative exhaustion and forfeiture, and other agency attempts to nullify Article III court jurisdiction, as well as what remedy is appropriate when an agency’s ALJs are unconstitutional.  D.C. Circuit’s ruling in Fleming created yet another trap for litigants seeking to protect their civil liberties during hearings before the administrative state.

Join the new civil liberties movement. Protect Americans from the Administrative State!

CASE: Fleming et al. v. United States Department of Agriculture

COURT: U.S. Court of Appeals for the District of Columbia Circuit

DOCUMENT: Nos. 17-1246, 17-1249, 17-1250

ATTORNEYS FOR NEW CIVIL LIBERTIES ALLIANCE: Adi Dynar, Peggy Little, Jared McClain

FILED: March 5, 2020

CASE DOCUMENTS

February 16, 2021 | Opinion Issued by the U.S. Court of Appeals for the District of Columbia
Click here to read the full document.
March 5, 2020 | Amicus Curiae Brief of the New Civil Liberties Alliance in Support of Petitioners
Click here to read the full document.

PRESS RELEASES

March 5, 2020 | NCLA Challenges Use of Unconstitutional Administrative Law Judges at the USDA

WASHINGTON, DC, March 5, 2020 – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil rights organization, today filed an amicus brief with the U.S. Court of Appeals for the District of Columbia Circuit in support of Joe Fleming’s case against the U.S. Department of Agriculture (USDA). The Fleming case contests USDA’s use of unconstitutional administrative law judges (ALJs) in a way that violates Article II of the U.S. Constitution.

As NCLA’s brief shows, the U.S. Supreme Court’s 2018 decision in Lucia v. SEC held that ALJs at the U.S. Securities & Exchange Commission (SEC) are “officers” of the United States. As such, ALJs must be appointed consistent with the Appointments Clause. NCLA’s brief explains that USDA ALJs are executive “officers” too, and it argues that ALJs must also be removable in a way consistent with the Appointments Clause. Lucia clarified that defendants have a right not to be tried in front of constitutionally defective ALJs. Hence, federal courts must have jurisdiction to decide before an administrative hearing takes place whether an ALJ has the proper constitutional authority to hear the case. Fleming was sanctioned by a USDA ALJ who is not constitutionally removable.

Under an earlier precedent called Free Enterprise Fund v. Public Co. Accounting Oversight Board, the Supreme Court made clear that officers of the U.S. may not be insulated from removal by more than one layer of tenure protection without running afoul of the clause in Article II of the Constitution that requires the President to “take Care that the Laws be faithfully executed.” Free Enterprise Fund also squarely held that Article III jurisdiction exists to hear cases like this.

NCLA represents clients before the Fifth (Cochran), Ninth (Lucia), and Eleventh Circuits (Gibson) who are currently challenging the multiple layers of for-cause removal protection enjoyed by ALJs at the SEC as unconstitutional. Those cases enable NCLA to speak authoritatively about issues relating to administrative exhaustion and forfeiture, agency attempts to nullify Article III court jurisdiction, as well as what remedy may be appropriate when an agency’s ALJs are held unconstitutional.

NCLA released the following statements:

“When Congress nests protections in Matryoshka-doll-like fashion—it effectively immunizes executive officers of the President from removal, defeating the design of Article II.  NCLA is determined to get appellate courts to recognize the injustice of the costly, life-altering and business-destroying practice of administrative agencies trying Americans before their own in-house ALJs who are not constitutional. This is not exhaustion of remedies—it’s exhaustion of Americans.” —Peggy Little, NCLA Senior Litigation Counsel

“Following Lucia, courts considering the constitutionality of “quasi-judicial” officers must confront how the structural idiosyncrasies of each agency’s adjudicatory scheme raise distinct constitutional issues. What’s become clear—if it wasn’t already—is that only Congress can fix the unconstitutionality of agency adjudications. Each time a court tries to sever one unconstitutional provision, the legality and legitimacy of another provision inevitably raises its ugly head.” —Jared McClain, NCLA Staff Attorney

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.
For more information visit us online at: NCLAlegal.org.

Click here to download

OPINION