On Friday, November 15, D.C. Circuit Judges Srinivasan, Katsas, and Rao heard oral arguments in Joe Fleming, et al. v. U.S. Dept. of Agriculture, No. 17-1246, which challenges the U.S. Department of Agriculture’s Administrative Law Judges’ appointments and tenure protections.  We’re watching this case and keeping an eye out for other challenges to legal proceedings before ALJs who enjoy multiple layers of protection from removal cases in part because even the government has already acknowledged in Lucia v. SEC, 138 S. Ct. 2044 (2018), that these tenure protections are impermissible under existing Supreme Court precedent.

NCLA currently represents two clients, Mr. Ray Lucia and Ms. Michelle Cochran, who are challenging the lawfulness of the Securities and Exchange Commissions’ ALJs’ multiple layers of protection from removal.  In both cases, NCLA challenged the SEC administrative proceedings in an Article III district court, arguing that Mr. Lucia and Ms. Cochran should not be forced before yet another unconstitutional administrative proceeding doomed to be voided.  Both district courts agreed with pre-Lucia circuit decisions that held the district court lacked jurisdiction to hear our clients’ constitutional claims – claims that the SEC was aware of when they instituted the administrative proceedings before ALJs who lack jurisdiction to decide such claims.  

Fortunately, a panel of judges on the Fifth Circuit of Appeals granted an injunction pending appeal for Ms. Cochran on September 24, 2019, granting her a reprieve from the unconstitutional administrative proceeding while the appellate court reviews her constitutional claims. On December 4, 2019, NCLA filed a motion for injunction pending appeal in the Lucia case.  Counsel for Fleming and his fellow petitioners cited both our Lucia case, as well as the Cochran case and 5^th Circuit injunction, as persuasive authority in his oral arguments. 

At oral argument in Fleming, Judge Srinivasan asked counsel for petitioners whether remand to the USDA’s ALJs was the proper remedy under the Supreme Court’s decision in Lucia.  Fleming’s counsel argued, much like NCLA’s arguments in Cochran and Lucia, that remand was improper because the ALJ that Fleming would appear before is an Officer of the United States under Art. II, §2, cl. 2, who enjoys tenure protections in violation of the President’s removal powers.

The USDA made arguments similar to those NCLA has encountered in our legal challenges to the SEC’s ALJs protection from removal cases.  In the briefing and at the Fleming oral argument, the USDA argued that the D.C. Circuit should ignore this constitutional problem and send Fleming and the other petitioners to an administrative hearing before an ALJ who enjoys impermissible protections from removal, because the petitioners might win on the facts.  In case the court was inclined to resolve the constitutional problem, USDA argued that the court should rewrite the meaning of “good cause” in 5 U.S.C. § 7521 and reinterpret the role the Merit Systems Protection Board plays in the removal of ALJs.  But as NCLA has argued in our SEC removal protection challenges: [such a] proposal does not involve honest statutory construction, but freewheeling judicial reformation of all or part of three levels of impermissible tenure protection. It is implausible simply to construe the statute to make the multiple layers of tenure protection go away, and it requires more than mere “construction” to alter this tenure protection scheme.

When Judge Rao asked Fleming’s counsel what remedy would be appropriate for the protection from removal claim [if not remand], counsel argued that Article III courts should not sever statutes in order to fix the issue, and that the solution to the impermissible layers of protection from removal  is an important question that should be left for Congress to address. 

Whether the D.C. Circuit decides to address Fleming and his fellow petitioners’ dual tenure challenge now, or remands their case to a USDA administrative proceeding, NCLA remains committed to challenging abuses of power by administrative agencies that treat Americans’ civil liberties as options dispensed, if at all, at the government’s pleasure rather than constitutional obligations that bind the government.

You can listen to the Fleming v. USDA oral arguments here.  Counsel for petitioners cites NCLA’s Cochran and Lucia challenges to the SEC’s ALJs protections from removal at the 23:25 mark.  

 Written by Jessica Thompson