January 2023

NCLA kicked off the new year with multiple wins! The full Fifth Circuit bench has ruled in our favor, declaring the ATF does not have statutory authority to rewrite the law to ban bump stocks. In California, a district judge has halted a new law passed by Governor Newsom censoring doctors who don’t agree with the state’s messaging regarding Covid. Meanwhile, NCLA continues to uncover even more evidence of the Biden administration’s bullying tactics that were used on tech companies to silence free speech online. Keep scrolling to read about what’s happening at NCLA now, including a recent amicus win against Congress’ “Tax Cut Ban.”

Recent Victories

Photo: CA Gov. Gavin Newsom signed AB 2098 in September 2022, allowing the Medical Board of California to punish doctors for spreading “misinformation” to their patients

California Judge Grants Injunction to NCLA Clients, Halts Implementation of Law Censoring Doctors

Senior Judge William B. Shubb of the U.S. District Court for the Eastern District of California has granted NCLA’s motion for preliminary injunction in Høeg, et al. v. Newsom, et al. He held that plaintiffs have standing to bring a legal challenge and enjoined implementation of Assembly Bill (AB) 2098 in California. The controversial state law empowered the Medical Board of California to discipline physicians who “disseminate” information regarding Covid-19 that departs from the “contemporary scientific consensus.” Read more>>

Photo: The U.S. Department of Transportation building in Washington, DC

Sixth Circuit Vacates Penalty Against NCLA Client, Sends Case Back to Dept. of Transportation

The U.S. Court of Appeals for the Sixth Circuit has issued a ruling in Polyweave Packaging v. U.S. Dept. of Transportation vacating the civil penalty against Polyweave Packaging, Inc. and remanding the case back to the Pipeline and Hazardous Materials Safety Administration. NCLA, which represents Polyweave, petitioned for review of a decision by PHMSA’s Chief Safety Officer—a career civil servant who is not politically accountable and thus lacks appropriate authority—after he issued a Final Decision affirming alleged violations against Polyweave and assessing a civil penalty of $14,460. The agency conceded to the court that the Chief Safety Officer was not properly appointed at the time of the decision against Polyweave in October 2021. Read more>>

Video: NCLA client, gun shop owner, and Army veteran Michael Cargill tells his story

Major Fifth Circuit en Banc Decision Tosses ATF’s Bump Stock Ban

The full Fifth Circuit bench has ruled that a bump stock does not fall within the definition of “machinegun” as set forth in federal law. Thus, the Bureau of Alcohol, Tobacco, Firearms and Explosives lacked the statutory authority to issue the Final Rule banning bump stocks. NCLA represents gun shop owner, Army veteran, and firearms instructor Michael Cargill in Michael Cargill v. Merrick B. Garland, et al. NCLA applauds this decision, which not only allows our client to keep his property, but also prevents ATF’s unlawful attempt to rewrite a criminal law. Stay tuned to see if ATF appeals the case to the U.S. Supreme Court. Read more>>

Cases to Watch

Photo: Damaging emails from WH Dir. of Digital Strategy Rob Flaherty show the tactics used by the Biden Administration to coerce social media companies into censoring Americans

More Emails Reveal Bully Tactics from White House to Control COVID Messaging on Social Media

Emails from White House Director of Digital Strategy, Rob Flaherty, have shed light on an extensive government-directed social media censorship campaign, which included harsh recriminations for tech company executives who did not immediately censor to Mr. Flaherty’s liking. These emails establish a clear pattern wherein Flaherty, representing the White House, expressed anger at the social media companies’ alleged failure to censor Covid-related content adequately. The companies succumbed to this pressure campaign by changing their policies to address his demands. NCLA’s lawsuit, State of Missouri ex rel. Schmitt, et al. v. Joseph R. Biden, Jr., et al., has exposed widespread government-induced censorship. Read more>>

Photo: PCAOB’s secret prosecutorial processes are often referred to as ‘peekaboo’ prosecutions after the acronym

Complaint Challenges Modern Star Chamber Proceedings at Public Company Accounting Oversight Board

NCLA has filed a complaint in the U.S. District Court for the Northern District of Texas seeking declaratory and injunctive relief from the Public Company Accounting Oversight Board’s secret, unaccountable, and inherently biased prosecutorial processes. With no meaningful supervision by any government official appointed or directly removable by the President, and using funds raised by private taxes with no Congressional appropriation or oversight, PCAOB has investigated and brought a secret prosecution seeking to strip NCLA’s client of his livelihood and impose quasi-criminal monetary penalties—without a jury trial, due process of law, an impartial adjudicator, or any constitutional accountability. Read more>>

Photo: The Fulbright-Hays Fellowship application process disadvantages immigrants from non-English-speaking countries

Deptartment of Education’s Fulbright-Hays Application Includes Discriminatory “Native Language Penalty”

Undermining the spirit of international openness and exchange, the U.S. Department of Education’s application process for the Fulbright-Hays Fellowship significantly disadvantages immigrants from non-English-speaking countries and children of such immigrants. NCLA has filed a Motion for Preliminary Injunction in the lawsuit, Edgar Ulloa Lujan, Samar Ahmad, and Veronica Gonzalez v. U.S. Department of Education, et al. NCLA is asking the U.S. District Court for the Western District of Texas to require the Department of Education to reevaluate Plaintiff Veronica Gonzalez’s 2022 application for the Fulbright-Hays Doctoral Dissertation Research Abroad Fellowship and stop discriminating against applicants based on their national origin.  Read more>>

Photo: VA awarded NCLA client Thomas Buffington lower disability benefits than those to which he was entitled

NCLA and CVAF Ask Deptartment of Veterans Affairs to Amend Regulation Denying Benefits to Disabled Vets

NCLA and Concerned Veterans for America Foundation have filed a petition asking the U.S. Department of Veterans Affairs to amend its controversial regulation regarding the payment of benefits to veterans who have been deemed eligible for disability benefits but who later return temporarily to active duty. The current regulation denies many disabled veterans the benefits to which federal law entitles them. NCLA and CVAF have urgeed VA to do the right thing: amend the rule to reinstate disability benefits due veterans who return to active duty the moment they leave active duty. Read more>>

Click here for more cases to watch.

Friends of the Court

Photo: The Tax Cut Ban is unprecedented federal control of state taxation under Pres. Biden’s American Rescue Plan

Eleventh Circuit Court of Appeals Holds Congress’ State Tax Cut Ban Unconstitutional, in NCLA Win

The Eleventh Circuit has handed down a ruling in West Virginia v. U.S. Department of the Treasury, upholding the district court’s decision to permanently enjoin the Secretary of the Treasury from enforcing a “Tax Cut Ban” against the 13 states that sued her: West Virginia, Alabama, Alaska, Arkansas, Florida, Iowa, Kansas, Montana, New Hampshire, Oklahoma, South Carolina, South Dakota, and Utah. The ruling marks NCLA’s second amicus win on appeal—following Commonwealth of Kentucky and State of Tennessee v. Janet Yellen, et al.—in lawsuits contesting Congress’ attempt to usurp state taxing authority. Read more>>

Photo: NCLA client and founder of Spartan Securities Group Micah Eldred

NCLA Received Amicus Support After Calling on 11th Cir. to Vacate District Court’s Judgment in Securities Case

The Buckeye Institute and Investor Choice Advocates Network have filed amicus curiae briefs in support of the arguments presented by NCLA in the securities lawsuit, SEC v. Spartan Securities Group, LTD., et al. NCLA’s opening brief asks the U.S. Court of Appeals for the Eleventh Circuit to decide, among other issues, the availability of disgorgement for violations of the securities laws when the disgorged monies are returned to the U.S. Treasury. NCLA argues 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. Read more>>

Photo: Stinson deference unjustly forces people to spend more time in prison than Congress requires

NCLA Called on the Fifth Circuit to Reject Judicial Deference to U.S. Sentencing Guidelines Commentary

The entire bench of the U.S. Court of Appeals for the Fifth Circuit has heard oral argument in United States v. Vargas. In this case, the Fifth Circuit will decide how much deference, if any, courts should give Commentary to the U.S. Sentencing Guidelines. NCLA was the only group to file an amicus brief in United States v. Vargas, urging the Fifth Circuit to decide that Stinson deference should not be applied when it results in a more severe criminal sentence. Existing Fifth Circuit precedent follows flawed reasoning and causes courts to defer reflexively to U.S. Sentencing Guidelines Commentary, even though Congress does not vote on the Commentary. Listen to the oral argument>>

Photo: The Supreme Court of Ohio building in Columbus, OH

In Amicus Win, Ohio Supreme Court Rejects Deference to Agency Interpretations

The Supreme Court of Ohio has denounced agency deference and ruled that the state’s courts need not defer to agency interpretations of ambiguous statutes. In no uncertain terms, Justice Pat DeWine, writing for the majority, stated, “We reaffirm today that it is the role of the judiciary, not administrative agencies, to make the ultimate determination about what the law means. Thus, the judicial branch is never required to defer to an agency’s interpretation of the law.” NCLA filed an amicus brief in TWISM Enterprises, LLC v. State Board of Registration for Professional Engineers and Surveyors, urging the Supreme Court of Ohio to declare agency deference unconstitutional. Read more>>

Click here for more amicus briefs to watch.

In the News

Video: NCLA client Michael Cargill and NCLA President Mark Chenoweth join Newsmax to discuss NCLA’s major win in the Fifth Circuit against ATF’s bump stock ban ???? The White House Covid Censorship Machine, The Wall Street Journal ???? Bump Stock Ruling Highlights Appellate Dispute: Can Agencies Decide What Is a Crime?, Reuters ???? A Federal Court Blocks California’s New Medical Misinformation Law, The New York Times ???? U.S. Accounting Watchdog Faces Lawsuit Over Its ‘Secretive’ Disciplinary Process, Reuters ???? Federal Appeals Court Strikes Down ATF Rule Banning Rapid-fire Bump Stocks, ABA Journal ???? Discovery of Biden WH Coercion of Big Tech, The Clay Travis & Buck Sexton Show ???? Big Tech Colluding With Government on Pandemic Censorship, NTD ???? California Judge Temporarily Blocks Covid Misinformation Law, Newsmax

Click here for more media mentions.

#TeamReality

Challenging Covid-19 Regulations and Orders Imposed by Executive Decree

The COVID-19 pandemic has proven to be a threat not only to the health and safety of Americans, but also to our way of life. Under the aegis of public safety, federal, state and local governments have violated constitutional law by implementing regulations and emergency orders by executive decree. As elected leaders and bureaucrats have taken turns trampling civil rights underfoot, NCLA has been working overtime to put constitutional guardrails on the Administrative State’s pandemic response. Join #TeamReality>>

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