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Fleming v. USDA

Did we achieve our litigation objective? No. The D.C. Circuit never addressed whether the granting of multiple layers of for-cause protection to U.S. Department of Agriculture (USDA) administrative law judges (ALJs) violated Joe Fleming’s due process rights.

Court Outcome: The U.S. Court of Appeals for the District of Columbia Circuit chose not to review the three-judge panel’s decision. As a result, the case was sent back to the USDA for further proceedings.

Larger Impact: Judge Rao vigorously dissented from the D.C. Circuit’s decision not to review the case, arguing there is a “constitutional requirement that the President must have the power to control officers who execute the law and to remove them if necessary. That principle applies with equal force to ALJs who execute the law through adjudication.”

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 seperation-of-powers claim could not be heard by an Article III Judge. The Fleming case contested the U.S. Department of Agriculture’s use of unconstitutional administrative law judges (ALJs) in a way violative of 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 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 made the decision so shocking was 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 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 represented Michelle Cochran with the same constitutional claim against the Securities and Exchange Commission before the U.S. Supreme Court.

“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 then-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.


Orders Denying Panel Rehearing and Rehearing En Banc

April 13, 2021 | Read More

Petition for Panel Rehearing & Rehearing En Banc

April 1, 2021 | Read More

Opinion Issued by the U.S. Court of Appeals for the District of Columbia

February 16, 2021 | Read More

Amicus Curiae Brief of the New Civil Liberties Alliance in Support of Petitioners

March 5, 2020 | Read More


NCLA Seeks D.C. Cir. Rehearing to Urge Jurisdiction over Constitutional Claim Against USDA ALJs

April 1, 2021



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