April has been quite the month for us here at NCLA as the U.S. Supreme Court has decided that our client Michelle Cochran gets to have her case heard against the SEC before a real Article III court, not an SEC-hired administrative law judge. NCLA is also challenging the agency in a new case on behalf of a former business owner who has been inspected, investigated, and prosecuted since 2014 with no end in sight. In addition, the Department of Justice has sought a cert. petition from the U.S. Supreme Court to overturn NCLA’s victory in Cargill v. Garland. But that’s not all! Keep reading to find out what else we’ve been up to at NCLA Now to protect your civil liberties.

The Latest

Photo: NCLA Client Michelle Cochran and her daughters visit the U.S. Supreme Court in Washington, DC for oral argument in SEC v. Cochran on November 7, 2022

Victory! U.S. Supreme Court Holds that Federal District Courts Have Jurisdiction to Hear Challenges to Unconstitutional Aspects of Federal Agencies’ Administrative Proceedings
In an historic ruling, the U.S. Supreme Court has held that Texas accountant Michelle Cochran has the right to challenge the constitutionality of her Administrative Law Judge’s (ALJ) removal protections in federal court before undergoing an administrative adjudication. Writing unanimously for the Court, Justice Kagan’s opinion stated, “The statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act do not displace a district court’s federal-question jurisdiction over claims challenging as uncon­stitutional the structure or existence of the SEC or FTC.” “The ordinary statutory review scheme,” she wrote, “does not preclude a district court from entertaining these extraordinary claims.” Read more>>

???? Lunch and Law | SCOTUS Confirms Right to Challenge Agencies in Court
After seven years of an uphill battle challenging the adjudicatory process at the Securities and Exchange Commission, Michelle Cochran’s backbreaking journey has paid off. In a historic and unanimous Supreme Court victory in Axon v. FTC consolidated with SEC v. Cochran, the highest court in the land declared earlier this month that Michelle can, indeed, challenge the constitutionality of the agency’s adjudicatory process (and even the constitutionality of the agency itself) before undergoing yet another administrative adjudication. As Justice Gorsuch remarked after describing the long and painful path taken by NCLA’s client to get to this point: “This is what a win looks like.” But now what? NCLA President and General Counsel Mark Chenoweth moderates a discussion with our expert panelists: Greg Garre, partner at Latham & Watkins, and Peggy Little, Senior Litigation Counsel at NCLA, to answer that very question. Watch now>>

Cases to Watch

Photo: The U.S. Securities and Exchange Commission has investigated Marian Young and her former investment business since 2014

NCLA Challenges SEC’s ‘Hotel California’ Administrative Adjudication Regime
Since 2014, the U.S. Securities and Exchange Commission (SEC) has been inspecting, investigating, and prosecuting Marian Young and her former investment business Saving2Retire, LLC, with no end in sight. SEC’s adjudication regime has deprived them of a jury trial and the Commission itself is now willfully refusing to decide their appeal from an administrative law judge’s (ALJ) initial decision issued back in August 2019, effectively blocking them from access to federal court review for nearly four years. NCLA has filed a petition on behalf of Ms. Young and her company, asking the U.S. Court of Appeals for the Fifth Circuit to issue a writ of mandamus against the SEC Commissioners in In re Marian P. Young and Saving2Retire, LLC that would compel them to either dismiss the case or else promptly decide the appeal in the agency’s eight-year-old administrative matter. Read more>>

Photo: Chief Judge Moore claims that Judge Newman “is unable to discharge all duties of the office by reason of mental or physical disability”

Renowned Federal Judge Retains NCLA to Oppose CAFC Chief Judge’s Unlawful Efforts to Oust Her
NCLA has written to Chief Judge Kimberly A. Moore of the U.S. Court of Appeals for the Federal Circuit expressing concern with her efforts to remove fellow U.S. Circuit Judge Pauline Newman. Chief Judge Moore claims that Judge Newman “is unable to discharge all duties of the office by reason of mental or physical disability.” Moore has appointed a three-judge special committee—including herself—to investigate the matter. Without citing any legal authority and prior to the conclusion of any investigation, Chief Judge Moore removed Judge Newman from hearing cases for an indefinite period. She also impeded Judge Newman’s access to chambers phone and computer, and unilaterally decided that the judicial assistant working for Judge Newman “is no longer an employee of the Newman chambers.” NCLA is working to reverse these injustices. Read more>>

Photo: The Federal Trade Commission building in Washington, DC

Comment Warns Against FTC’s Novel Assertion of Power in Proposed Non-Compete Rule
The Federal Trade Commission’s (FTC) proposed “Non-Compete Clause Rule” would ban the use of non-compete clauses as “an unfair method of competition.” NCLA has filed a Comment objecting to FTC’s attempt to federalize state contract law with virtually no attention to the various interests of the states and market participants developed by the contract law over more than a hundred years. In particular, the Proposed Rule completely ignores the traditional legal analysis of non-competes based on factors such as length of time, subject matter, or geographic scope. Read more>>

Photo: NCLA’s new lawsuit challenges the U.S. Dept. of Education’s unlawful pause on student loan payments

NCLA and Mackinac Center Challenge Unlawful Extensions of Federal Student Loan Deferments
NCLA has filed a lawsuit to stop the U.S. Department of Education’s unlawful pause on student loan payments. The lawsuit, Mackinac Center for Public Policy v. U.S. Department of Education, Miguel Cardona, and Richard Cordray, was filed on behalf of the Center in the U.S. District Court for the Eastern District of Michigan. In response to the Covid-19 pandemic, Congress lawfully suspended monthly payment obligations and interest accrual on federally held student loans for a period limited to six months. When that statutory deferment period expired in September 2020, however, the department unilaterally extended it without congressional appropriation. The complaint challenges the legality of extending the suspension 30 months past the statutory expiration date, which has cost taxpayers over $150 billion from lost interest. Read more>>

Photo: Department of Homeland Security IG Joseph Cuffari has been endlessly harassed by CIGIE’s Integrity Committee (Photo Credit: POGO)

NCLA Challenges IG Committee’s Structure and Illegal Interference with Inspector General Operations
For three years, Joseph V. Cuffari, a Presidentially-appointed and Senate-confirmed Inspector General (IG) has been endlessly harassed and had his office’s resources drained by a series of baseless inquiries headed by the Council of the Inspectors General on Integrity and Efficiency’s (CIGIE) Integrity Committee (IC). IGs are designed by law to be independent, and the agencies they oversee are not permitted to interfere with their investigations. But the IC and its persecutorial approach are unlawfully interfering with Plaintiffs’ legal responsibilities. NCLA has filed a Complaint in Fredricks, et al. v. Council of the Inspectors General on Integrity and Efficiency, et al. in the U.S. District Court for the Eastern District of Virginia. Read more>>

Photo: Appellant Micah Eldred, U.S. Securities and Exchange Commission v. Spartan Securities Group, LTD., et al.

NCLA Replies to SEC and Calls on 11th Cir. to Vacate District Court’s Judgment in Securities Case
NCLA has filed a reply brief on behalf of its clients in U.S. Securities and Exchange Commission v. Spartan Securities Group, LTD., et al. in the U.S. Court of Appeals for the Eleventh Circuit. NCLA contends that the district court committed multiple legal errors and abused its discretion throughout this litigation to the detriment of Appellants Micah Eldred, Carl Dilley, Spartan Securities Group, Island Capital Management, and their legal, procedural, and constitutional rights. After years of investigations, a 12-day jury trial, and securing a finding of no liability on 13 of 14 counts, Appellants are still correcting the Securities and Exchange Commission’s (SEC) errors. They also must contend with SEC’s subjective recitation of the facts, which makes assertions based on theories and factual premises the jury explicitly rejected. Read more>>
 

Click here for more cases to watch.

Friends of the Court

Photo: The Federal Deposit Insurance Corporation headqarters in Washington, DC

Amicus Brief Blasts FDIC for Depriving Ex-CEO of Jury Trial Rights in Enforcement Action
NCLA has filed an amicus curiae brief in Burgess v. FDIC, et al. urging the U.S. Court of Appeals for the Fifth Circuit to redress the Federal Deposit Insurance Corporation’s (FDIC) unlawful enforcement action against Cornelius Campbell Burgess, which the agency pursued through its in-house administrative court. NCLA argues that FDIC’s allegations must be tried in front of a jury rather than an Administrative Law Judge (ALJ). FDIC’s current ALJ enforcement regime deprives Burgess of his Seventh Amendment right to a jury trial. Read more>>

 Click here for more amicus briefs to watch.

In the News

Video: Senior Litigation Counsel Peggy Little joins FedSoc’s Courthouse Steps to discuss the U.S. Supreme Court decision in Axon v. FTC and SEC v. Cochran

???? Probe of Federal Appeals Judge Tests Aging U.S. Courts, Reuters

???? Supreme Court Sides with Accountant over SEC, Accounting Today

???? Biden’s Student Loan Forgiveness Plans And Payment Pause Face Multiple New Threats, Forbes

???? U.S. Audit Regulator Asks Court to Dismiss Suit by Accountant Challenging Disciplinary Proceedings, Thomson Reuters

???? Peggy Little with NCLA On Her Very Important Victory at the Supreme Court, The Ross Kaminsky Show
 

Click here for more media mentions.

Case Cartoon

Permission granted to reprint with attribution

How can President Biden cancel student loans without an act of Congress? Newsflash: He can’t! NCLA is currently challenging the Biden Administration’s student loan debt cancellation plan in two cases, Mackinac Center for Public Policy v. U.S. Department of Education, Miguel Cardona, and Richard Cordray  and Cato Institute v. Department of Education.

NCLA Impact

Photo: NCLA’s Summer 2023 intern Varun Magdi (middle) and Summer 2022 intern Nathan Darmon (right) pose with their team at the 2023 Philip C. Jessup International Law Moot Court Competition

NCLA’s Summer 2022 intern Nathan Darmon and Summer 2023 intern Varun Magdi have become two of the youngest French National Champions of the Philip C. Jessup International Law Moot Court Competition, one of the most prestigious law championships outside of the US! Jessup is the world’s largest moot court competition, with participants from roughly 700 law schools in 100 countries and jurisdictions. The Competition is a simulation of a fictional dispute between countries before the International Court of Justice, the judicial organ of the United Nations. Way to go, Nathan and Varun!

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