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SEC v. Cochran

CASE: Michelle Cochran v. U.S. Securities and Exchange Commission

STATUS: Closed

NCLA ROLE: Counsel

COURTS HEARD IN: SCOTUS, 5th Cir., N.D. Tex.

ORIGINAL COURT: U.S. District Court for the Northern District of Texas

DECIDING COURT: U.S. Supreme Court

OPENED: December 31, 2018

AGENCIES: Securities and Exchange Commission

FOCUS AREAS:

Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Today, administrative agencies issue rules with the force of law, enforce laws, and prosecute people in proceedings before administrative law judges they hire. NCLA’s client Michelle Cochran worked as an auditor with a small Texas accounting firm until 2013, but she fell prey to this system when the U.S. Securities and Exchange Commission brought an enforcement action against the firm three years later and named her as a defendant, claiming she aided and abetted its alleged federal accounting rule violations. Representing herself, Ms. Cochran fought the allegations against her in a proceeding before an ALJ SEC hired to hear the case. At the time, SEC ALJs were hired by the prosecuting agency like any other civil servant. Unsurprisingly, ALJs rule for SEC in most cases. In 2017, Ms. Cochran’s ALJ ruled against her, imposing a $22,000 fine and banning her from practicing as an accountant before SEC for five years.

Then, the U.S. Supreme Court ruled in June 2018’s Lucia v. SEC decision that SEC ALJs must be appointed by the president rather than hired by the agency. SEC subsequently concluded that everyone facing pending enforcement proceedings had to be retried before new ALJs, assigning Ms. Cochran’s case to a new ALJ for a do-over in 2018.

To “faithfully execute the laws” under the Constitution, the president must be able to appoint and remove all federal officers. But SEC ALJs, like most civil servants, are protected by what amounts to life tenure. If the president cannot remove “officers” such as ALJs, then he can’t control the administrative agencies he’s charged with overseeing. The Supreme Court unanimously held in April 2023 that Ms. Cochran had the right to challenge the constitutionality of her ALJ’s removal protections in federal court before undergoing an administrative adjudication, a major NCLA victory.

Michelle Cochran, Plaintiff

Mark Chenoweth
President and Chief Legal Officer
Kara Rollins
Litigation Counsel
Margaret A. Little
Senior Litigation Counsel
Russ Ryan
Senior Litigation Counsel
Kaitlyn Schiraldi
Staff Attorney
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NCLA FILINGS

Order of U.S. District Judge Reed O'Connor

September 27, 2023 | Read More

Joint Stipulation of Dismissal

September 26, 2023 | Read More

Motion to Reconsider and Amend the Final Order

June 20, 2023 | Read More

Appellant's Reply Brief

May 12, 2023 | Read More

Opinion of the U.S. Supreme Court

April 14, 2023 | Read More

PRESS RELEASES

SEC Surrenders to NCLA Client Michelle Cochran in Wake of Her Unanimous Supreme Court Win

September 27, 2023 | Read More

Victory! U.S. Supreme Court Holds that Federal District Courts Have Jurisdiction to Hear Challenges to Unconstitutional Aspects of Federal Agencies’ Administrative Proceedings

April 14, 2023 | Read More

Watch: The Punishment Is the Process – Administrative Law Judge Proceedings Are Unconstitutional

April 14, 2023 | Read More

NCLA Asks High Court to Uphold Federal Court Jurisdiction over Unconstitutional Agency Proceedings

November 7, 2022 | Read More

NCLA’s Supreme Court Reply Brief Refutes SEC’s New Arguments Against District Court Jurisdiction

September 8, 2022

IN THE MEDIA

The SEC Puts Itself on Moot—Answering Justice Robert Jackson’s Eight-Decade-Old Query—Has the SEC Become a Law Unto Itself?

September 19, 2023

The Self-Regulated Art Market Leaves Bureaucrats Concerned about Job Security

NCLA Blog

June 19, 2023

The Demise of the SEC’s Adjudication System

June 9, 2023

Challenging SEC ALJs Shouldnt Be Illogical, 5th Circ. Told

Law360

February 7, 2023

SEC Administrative Law Judges are Unconstitutional, Peggy Little

The Ross Kaminsky Show

February 7, 2023

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