June 2023

Happy Independence Day! We have much to celebrate at NCLA because protecting the freedom and civil liberties of all Americans is our mission. We filed three cert petitions but closed out the month of June with a landmark amicus win against Biden’s student loan debt cancellation bailout. Also, check out our new case video exposing the Massachusetts Department of Health’s unlawful scheme with Google to auto-install spyware on its residents without their consent. Finally, if you want to find out who this year’s King George III Prize “winner” is for the worst abuser of civil liberties you’ll have to keep scrolling and see what else is happening at NCLA Now!

The Latest

Video: The Massachusetts Department of Public Health worked with Google to auto-install Covid-19 tracing spyware on the phones of over one million residents

???? WATCH: Government Spyware for Your Phone? There’s an App for That

Robert Wright will admit he’s not much of a techie, but he knows that by law he has the right to reject an App getting downloaded on his Android smartphone. Mr. Wright along with millions of others like him were shocked to learn the Massachusetts Department of Public Health worked with Google to auto-install spyware on the smartphones of more than one million unknowing Commonwealth residents, without their knowledge or consent, in a misguided effort to combat Covid-19. So he is suing them. Watch video>>

Photo: The U.S. Supreme Court has struck down the Biden Administration’s plan to cancel nearly a half-trillion dollars in outstanding student loans

NCLA Notches Supreme Court Amicus Win Against Biden’s Student Loan Debt Handout

NCLA applauds the recent U.S. Supreme Court decision blocking the Biden Administration’s plan to cancel nearly a half-trillion dollars in outstanding student loans owed to the U.S. Treasury. As NCLA urged in an amicus curiae brief it filed in the case of Biden v. Nebraska, the court ruled that Executive Branch administrators lack any legitimate power to make such sweeping changes to the law absent authorization from our elected representatives in Congress. Read more>>

Cases to Watch

Photo: NCLA client Crystal Moroney, former managing partner of Law Offices of Crystal Moroney, P.C.

Supreme Court Should Reverse Second Circuit, Hold CFPB’s Funding Method Unconstitutional

The Consumer Financial Protection Bureau is an outlier agency, and the U.S. Supreme Court should overturn its illegitimate funding method, NCLA has argued in a petition for a writ of certiorari filed in the case of Law Offices of Crystal Moroney v. CFPB. In October, the U.S. Court of Appeals for the Fifth Circuit decided in Community Financial Services Assoc. of America, Ltd. v. CFPB that the agency’s funding structure violates the Appropriations Clause of the U.S. Constitution. The Second Circuit panel in Moroney’s case explicitly disagreed with the Fifth Circuit, ruling in March that CFPB’s funding method was okay because it was “authorized by Congress and bound by specific statutory provisions.” Read more>>

Photo: NCLA and its client, Relentless Inc., have asked the U.S. Supreme Court to review NOAA’s unlawful at-sea monitoring rule

NCLA Cert Petition Joins Effort Asking U.S. Supreme Court to Overturn Chevron and Scrap Fishy Rule

The U.S. Department of Commerce’s National Oceanic and Atmospheric Administration and its National Marine Fisheries Service have imposed an unconstitutional rule requiring fishing companies to pay for at-sea government monitoring of their herring catch. Unfortunately, relying on Chevron deference to do the heavy lifting, the First Circuit Court of Appeals upheld that rule. NCLA has petitioned the U.S. Supreme Court for a writ of certiorari in Relentless Inc., et al. v. Dept. of Commerce, et al., seeking to overturn the Chevron precedent and vacate the rule. Read more>>

Photo: NCLA Senior Litigator Rich Samp (left) and NCLA President Mark Chenoweth (right) pose with NCLA Client Michael Cargill after oral argument in the Cargill case on September 13, 2022

NCLA Endorses Request for U.S. Supreme Court to Rule on ATF’s Unilateral Bump Stock Ban

NCLA has filed a brief agreeing that the U.S. Supreme Court should grant the U.S. Solicitor General’s cert petition in the Garland v. Cargill case. That petition asks the Court to hear NCLA’s challenge to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ unilateral bump stock ban. Contrary to the Solicitor General, however, NCLA’s brief urges the Court to affirm the recent en banc decision of the U.S. Court of Appeals for the Fifth Circuit, which held that ATF’s regulatory ban conflicts with the federal statute defining “machineguns.” Read more>>

Photo: The U.S. Securities and Exchange Commission building in Washington, DC

Hopelessly Compromised SEC Dismisses Dozens of Cases Due to Widespread Agency Misconduct

The U.S. Securities and Exchange Commission has dismissed dozens of enforcement cases, including two involving current NCLA clients (Michelle Cochran, Marian Young) and one of a former client (Christopher Gibson). The agency revealed on June 2, 2023, that members of its enforcement staff had gained illicit access to confidential adjudicative documents and downloaded them in far more cases than originally reported, exposing rot in a hopelessly compromised in-house adjudication regime. Read more>>

Photo: The U.S. Court of Appeals for the Federal Circuit in Washington, DC

NCLA Asks U.S. District Court to Stop Unconstitutional Suspension of Circuit Judge Pauline Newman

Chief Judge Kimberly Moore and the Judicial Council of the U.S. Court of Appeals for the Federal Circuit have indefinitely suspended highly-respected veteran Judge Pauline Newman from hearing new cases—and they did so before investigating her. The 1980 Judicial Conduct and Disability Act does not authorize such indefinite or pre-investigatory suspensions. Another federal statute requires Federal Circuit panels to be comprised of a fair draw from all the Court’s active judges. Hence, suspending Judge Newman also infringes on the right of every Federal Circuit plaintiff and defendant to have their cases heard by a fair draw from all the Court’s active judges. NCLA has filed an amended Complaint and a Motion for a Preliminary Injunction on Judge Newman’s behalf, asking the U.S. District Court for the District of Columbia to order the Federal Circuit’s Judicial Council to restore Judge Newman’s full participation in the work of her court immediately. Read more>>

Photo: NCLA Senior Litigation Counsel John Vecchione presents U.S. Attorney General Merrick Garland as the worst abuser of civil liberties in 2022 at NCLA’s “Georgie” Awards on June 1, 2023

King George III Award Recognizes Attorney General Garland as Worst Violator of Civil Liberties

The People have spoken. The biggest abuser of civil liberties in the Administrative State is Attorney General Merrick Garland. After a weeks-long public vote as part of the Third Annual “King George III Prize,” Garland garnered the most votes among overreaching bureaucrats in a bracket campaign that ran on NCLA’s social media sites. Garland prevailed out of a “Flagrant Four” finalists that included California Governor Gavin Newsom, student loan cancellation architect Richard Cordray, and FBI agent (and social media censor) Elvis Chan. The award was announced at an event in Washington, DC. Read more>>

Photo: NCLA client Michelle Cochran and her two daughters pose with the NCLA team after oral argument at the U.S. Supreme Court on November 7, 2022

NCLA Asks SEC to Officially Close Possibility of Refiled Charges Against Michelle Cochran After Case Dismissal

NCLA has filed a motion on client Michelle Cochran’s behalf asking The U.S. Securities and Exchange Commission to amend its order to clarify that the agency’s recent dismissals were conducted with prejudice, which would prevent the agency from refiling charges against her or the other concerned parties. In April, Ms. Cochran won her argument before the Supreme Court that she had the right to challenge the constitutionality of her Administrative Law Judge’s removal protections in federal court before undergoing an administrative adjudication. Read more>>

Photo: Wildchild Stockholm, Inc. Founder Lisa Furuland Kotsianis

NCLA Calls Out CPSC Commissioner Trumka’s Deliberate Efforts to Ban DockATot Infant Loungers

NCLA has sent a formal letter to the U.S. Consumer Product Safety Commission detailing how CPSC, and Commissioner Richard Trumka in particular, have severely violated the constitutional and statutory rights of NCLA client Wildchild Stockholm, Inc. Wildchild, founded by mom and entrepreneur Lisa Furuland Kotsianis, designs and imports the award-winning, Scandinavian-inspired DockATot® Deluxe+ docks. The letter states that Commissioner Trumka has taken deliberate actions and made specific statements that infringe Wildchild’s constitutional right to have a fair and impartial tribunal. Read more>>

Photo: Former professional skier David Lesh was wrongly convicted for violating U.S. Forest Service regulations

U.S. Forest Service Illegitimately Created Crimes, Prosecuted Skier over Instagram Post

NCLA has filed an opening brief with the U.S. Court of Appeals for the Tenth Circuit, appealing its client David Lesh’s contested criminal convictions for violating two regulations promulgated by the U.S. Forest Service. NCLA argues that the government failed to prove essential elements of its allegations, and it punished Mr. Lesh in violation of his First Amendment free speech rights. In addition, because these regulatory violations are classified as so-called petty offenses, the courts below denied Mr. Lesh his Sixth Amendment right to a trial by jury. Finally, Lesh’s convictions must be overturned because the regulations USFS promulgated specify criminal violations, a legislative function that is solely Congress’s prerogative. Read more>>

Photo: NCLA’s Sheng Li and John Vecchione appeared before the Sixth Circuit Court of Appeals for oral argument in Changizi v. HHS on June 15, 2023

Oral Argument in Lawsuit Against Government-Directed Social Media Censorship

NCLA appeared before Judges Boggs, White, and Bush of the U.S. Court of Appeals for the Sixth Circuit for a hearing in a major lawsuit against Biden Administration officials, including some within the Department of Health and Human Services, for violating the First Amendment by directing social media companies to censor viewpoints that conflicted with the government’s Covid-19 messaging. NCLA represents Mark Changizi, Daniel Kotzin, and Michael Senger in Mark Changizi, et al. v. Department of Health and Human Services, et al. Listen to oral argument>>

Photo: SEC civil penalties have become wildly inconsistent and unpredictable from case to case

NCLA Asks Supreme Court to Rein in SEC Practice of Seeking Penalties in Excess of Statutory Caps

Securities and Exchange Commission penalties have exploded in size in recent years, in large part because the agency ignores statutory penalty caps Congress set in 1990. SEC civil penalties have become wildly inconsistent and unpredictable from case to case, depriving regulated parties of any semblance of fair notice about the potential consequences of their behavior. NCLA has filed a petition for a writ of certiorari with the U.S. Supreme Court on behalf of its client Richard Gounaud in Jocelyn M. Murphy, Michael S. Murphy, and Richard C. Gounaud v. SEC. NCLA asks the Justices to stop SEC from counting the number of violations in arbitrary ways when seeking penalties, to clarify who must register with SEC as a “broker,” and to uphold jury trial rights when the government seeks to impose punitive sanctions. Read more>>

Click here for more cases to watch.

In the News

Video: NCLA Litigation Counsel Sheng Li and NCLA client Mark Changizi join Newsmax to discuss Changizi v. HHS, NCLA’s case against government-directed social media censorship ???? Colleagues Want a 95-Year-Old Judge to Retire. She’s Suing Them Instead., The Washington Post ???? SEC Dismisses 42 Cases after Admitting Enforcement Breach Larger than Reported, New York Post ???? Rhode Island Fishermen Ask Supreme Court to Hear Challenge to Observer Fees, National Fishermen ???? Twitter Users Suspended for Covid Tweets Argue to Reinstate Case against Feds, Courthouse News Service ???? SEC Dismisses Dozens of Cases Due to Widespread Agency Misconduct, The Ross Kaminsky Show ???? Government-Directed Social Media Censorship on Trial, The Chris Stigall Podcast

Click here for more media mentions.

Case Cartoon

Permission granted to reprint with attribution

In a momentous win for charter boat fishermen in the Gulf of Mexico, the Court of Appeals for the Fifth Circuit struck down the National Marine Fisheries Service’s efforts to play big brother. A Final Rule issued by the agency would have required 24-hour GPS tracking of recreational charter boat fishing vessels and the reporting of confidential economic data. NCLA represented more than 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company v. U.S. Department of Commerce, and ultimately secured this landmark victory. Read more>>

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