November 2023

We are especially thankful for our brave clients and incredibly generous supporters this time of year. However, there’s one thing we’re definitely not grateful for – the Administrative State. Fortunately, the U.S. Supreme Court has just agreed to hear yet another NCLA case in its current term! That makes it three original NCLA cases now before the Supreme Court! First up in Relentless v. Department of Commerce, we’re taking on Chevron deference for violating the Constitution in not just one, but two major ways. Curious to learn more about how NCLA is shaking things up in the courts? Keep scrolling to read what’s happening at NCLA Now!

The Latest

NCLA Senior Litigation Counsel Rich Samp (left) and NCLA President Mark Chenoweth (right) stand with client Michael Cargill outside of the John Minor Wisdom U.S. Court of Appeals building in New Orleans, LA

U.S. Supreme Court Agrees to Hear NCLA Case Against ATF’s Unilateral Bump-Stock Ban

The U.S. Supreme Court has granted the government’s request for a writ of certiorari in NCLA’s challenge to the Bureau of Alcohol, Tobacco, Firearms and Explosives’ unilateral bump-stock ban. NCLA supported the Solicitor General’s request in Garland v. Cargill and eagerly accepts this invitation. We will ask the Justices to affirm the en banc ruling of the U.S. Court of Appeals for the Fifth Circuit that ATF’s regulatory ban conflicts with the federal statute defining “machineguns.” This marks NCLA’s third case to be heard in the Supreme Court’s current term. Read more>>

NCLA has represented more than 1,300 federally permitted charter boat owners in the class-action lawsuit against the Final Rule

Triumph in Unlawful Charter Boat Surveillance Rule Case Leads Gov’t to Pay Attorneys’ Fees

NCLA has agreed to dismiss its motion for fees under the Equal Access to Justice Act in Mexican Gulf Fishing Company v. U.S. Department of Commerce. In lieu of a court judgment on the pending motion, the U.S. Government has paid NCLA a $160,000 fee settlement. In February, NCLA convinced the U.S. Court of Appeals for the Fifth Circuit to set aside an unconstitutional National Marine Fisheries Service Final Rule that required 24-hour GPS tracking of recreational charter fishing vessels and reporting of confidential economic data. NCLA celebrates this just conclusion to our clients’ long-fought battle against the Final Rule, along with Greg Grimsal and his colleagues at the New Orleans firm of Gordon Arata, who provided invaluable local counsel in the case. Read more>>

Cases to Watch

NCLA’s clients have been threatened by unjust administrative power under NOAA’s at-sea monitor mandate

NCLA Asks Supreme Court to Sink Chevron Doctrine for Violating the Constitution in Two Key Respects

NCLA has filed its opening brief on the merits in the U.S. Supreme Court on behalf of clients Relentless, Inc., Huntress, Inc., and Seafreeze Fleet, LLC in Relentless v. Department of Commerce, urging the Court to overturn the Chevron doctrine. The Relentless brief highlights two core problems with Chevron deference that NCLA founder Philip Hamburger has pressed for years. First, employing such deference abandons a judge’s Article III duty of judicial independence. Second, when a federal judge defers to an agency’s legal interpretation, it denies due process of law to the entity opposing the government in that case. The logic of Chevron deference cannot withstand this withering dual critique. Read more>>

Nasdaq reported a wave of investor interest in discriminating against some companies and in favor of others based on the gender, race, and sexual orientation of those companies’ directors

NCLA Asks en Banc Fifth Circuit to Overturn Nasdaq Board Diversity Rules as Unauthorized by Statute

The Securities and Exchange Commission-approved “Board Diversity Rules” impose race, gender and sexual orientation-based quotas on the corporate boards of companies listed on the Nasdaq stock exchange. Under the rule, companies that don’t meet the quotas must publicly explain why. NCLA has petitioned the U.S. Court of Appeals for the Fifth Circuit for en banc rehearing of its National Center for Public Policy Research v. SEC lawsuit against these rules including one in which SEC furnishes lists of quota-satisfying names to companies unable to meet such quotas on their own. These rules must be set aside, as SEC has no statutory authority to promulgate them. Read more>>

The law interfered with the ability of doctors and their patients to freely communicate, and had been used as a weapon to intimidate and punish doctors who dissent from mainstream views

NCLA Urges Court to Rule on Lawsuit Against Censorship of COVID-19 Medical Advice

Even though California has announced the repeal of Assembly Bill 2098 NCLA has filed a brief asking the U.S. District Court for the Eastern District of California not to dismiss our Høeg v. Newsom lawsuit against it. The law subjected California physicians to discipline for sharing information departing from the “contemporary scientific consensus” on Covid-19 with their patients. NCLA represents several physicians licensed by the Medical Board of California, most of whom treat patients on a regular basis. Drs. Tracy Høeg, Ram Duriseti, Aaron Kheriaty, Pete Mazolewski, and Azadeh Khatibi alleged that AB 2098 violated their First Amendment rights to free speech and their Fourteenth Amendment rights to due process of law. NCLA’s brief insists the case is not moot both because the suit seeks nominal damages and because California has not repudiated its ability to punish doctors for this kind of speech. Read more>>

Click here for more cases to watch.

Friends of the Court

NCLA is urging the Supreme Court to recognize Corner Post’s right to sue despite the statute of limitations

NCLA Amicus Brief Asks Supreme Court to Uphold a Small Business’s Right to Judicial Review

The U.S. Court of Appeals for the Eighth Circuit upheld the dismissal of Corner Post’s lawsuit challenging a Federal Reserve regulation, ruling that the six-year statute of limitations to challenge the rule had already expired. However, Corner Post did not exist until more than six years after the rule issued, and it filed suit less than four years after opening for business. NCLA has filed an amicus curiae brief in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, urging the U.S. Supreme Court to allow the lawsuit to go forward in such circumstances and protect judicial review. Read more>>

The Federal Communications Commission building in Washington, DC

Amicus Brief Encourages Supreme Court to Hear Case Against FCC’s Universal Service Fund

Every year the Federal Communications Commission collects billions of dollars from telecommunications customers—anyone with a telephone—to fund “universal service.” The program subsidizes high-cost areas and certain educational and healthcare providers. However, Congress wrote an evolving and open-ended statute, leaving FCC to set and then rewrite its own policies for the Universal Service Fund (USF) and to fund the program without limit through fees that escape Congressional oversight. NCLA has filed an amicus curiae brief urging the U.S. Supreme Court to hear the case of Consumers’ Research v. FCC, overturn this unconstitutional arrangement, and correct the enfeebled “nondelegation” doctrine that has enabled it. Read more>>

NCLA is taking on SEC’s “Restricted Activities Rule” as unlawfully promulgated

NCLA Encourages Fifth Circuit to Rein in Renegade SEC’s Unlawful Private Fund Regulation Effort

The Securities and Exchange Commission recently promulgated a rule that restricts—and in some cases prohibits—certain common contractual agreements between private investment funds and their investment advisers. NCLA has filed an amici curiae brief in National Association of Private Fund Managers v. SEC, asking the U.S. Court of Appeals for the Fifth Circuit to set aside this unlawful rule, which exceeds SEC’s statutory authority and ignores Congress’ design. Securities law scholars Paul Mahoney, Adam Pritchard, and J.W. Verret joined NCLA’s brief in the case, which draws from comments some of them filed during SEC’s rulemaking process. Read more>>

Starbucks is fighting NLRB’s unique and textually baseless preliminary injunction standard

NCLA Asks Supreme Court to Hear Case Challenging NLRB’s Odd Injunction Standard

The National Labor Relations Board has deprived Starbucks of property without due process of law by obtaining a preliminary injunction without even establishing that the company likely broke the law. The U.S. Court of Appeals for the Sixth Circuit upheld the district court’s injunction standard, which allows an employer to be punished based on legal and factual allegations that fall far short of meeting the ordinary preliminary injunction standard. NCLA has filed an amicus curiae brief urging the U.S. Supreme Court to hear the Starbucks Corp. v. McKinney case, reverse the Sixth Circuit’s error, and overturn the injunction. Read more>>

NCLA is supporting Becket’s religious liberty case at the Ninth Circuit

Amicus Brief Tells Ninth Circuit to End Calif. Ban on Special Ed. Funding for Religious Schools

California bars private religious schools and parents of their students from accessing federal and state-level special education funds and programs. NCLA has filed an amicus curiae brief in Loffman v. California Department of Education, urging the U.S. Court of Appeals for the Ninth Circuit to block this policy, which violates faithful Californians’ First Amendment rights. Provisions in the California Education Code only allow “nonsectarian” schools to be certified for receiving special education services. By categorically denying these resources to religious schools, California defies the First Amendment’s clause protecting the free exercise of religion. Read more>>

NCLA’s brief urges the Supreme Court to uphold jury trial rights in administrative law cases

U.S. Supreme Court Hears Oral Argument in Challenge to Administrative Adjudication

The U.S. Supreme Court has heard arguments in the case of SEC v. Jarkesy. NCLA proudly filed an amicus curiae brief in this case, with core constitutional rights at stake. SEC prosecuted George R. Jarkesy, Jr. in a years-long administrative proceeding that denied him his Seventh Amendment right to a jury trial. His administrative proceeding was adjudicated by an ALJ who was improperly insulated from removal. For both of these reasons, NCLA encouraged the court to rule against the SEC Listen to the oral argument>>

Click here for more amicus briefs to watch.

In the News

???? Mark Chenoweth at FedSoc Fireside Chat with FTC Chair Lina Kahn, C-SPAN

???? Chevron Briefcase Oral Argument – Mark Chenoweth,Federalist Society

???? New Emails Show DHS Created Stanford ‘Disinfo’ Group That Censored Speech before 2020 Election, New York Post

???? Supreme Court to Decide Whether ATF Can Prohibit Bump Stocks under Law Banning Machine Guns, ABA Journal

???? Deny Oldest US Judge’s Case for Reinstatement, Colleagues Argue, Bloomberg Law

???? Lawyers for Rhode Island Fishermen File Supreme Court Brief, National Fisherman
???? Jenin Younes & Dr. Kelly Victory on State of the Nation, TNT Radio

Click here for more media mentions.

Administrative Toon

Permission granted to reprint with attribution

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