Southeast Texas Record

Thursday, February 27, 2020

NCLA wins stay pending appeal from Fifth Circuit in post-Lucia SEC case

By David Yates | Oct 3, 2019

WASHINGTON - It took barely a couple of hours  after oral argument on the motion in New Orleans, for a panel of the  U.S. Court of Appeals for the Fifth Circuit to issue an order staying the SEC’s enforcement proceedings against NCLA client Michelle Cochran, according to a press release. 

The order in Cochran v. Securities and Exchange Commission stays  the SEC’s in-house administrative hearing against her until the Fifth  Circuit resolves the merits of the appeal now pending before them in Ms.  Cochran’s case.

The  order from JJ. Edith Jones, Stephen Higginson, and Andrew Oldham reads:  “IT IS ORDERED that Appellant’s motion for an injunction pending appeal  under Federal Rule of Appellate Procedure 8 is GRANTED.”

The  issue due up for appeal on the merits to the Fifth Circuit is whether  the SEC may force Ms. Cochran to proceed in front of an SEC  administrative law judge (ALJ) who enjoys multiple layers of  unconstitutional protection from removal. NCLA and Michelle Cochran are  delighted with the decision of the Fifth Circuit panel to stay her  constitutionally defective administrative proceeding. Both are also  pleased that the court appears willing to consider correcting a path  appellate law in other circuits has taken that has been permitting the  SEC to impose hearings on defendants that are predestined to be vacated.

The  Fifth Circuit’s stay recognizes the enormous human cost and prejudicial  delay that senseless, serial prosecutions impose on Americans like Ms.  Cochran. Cochran’s case was one of dozens slated for reconsideration  after the U.S. Supreme Court’s ruling last June in Lucia v. SEC—which  determined the SEC had been using unconstitutionally appointed ALJs.  NCLA also represents Mr. Lucia in his post-Supreme Court litigation. 

Further details about Michelle’s case are available here.

NCLA released the following statements:

“I  am so proud to be represented by NCLA!! Thank you so much for all you  are doing for me and for all of the others like me out there!!”—Michelle Cochran, NCLA Client

“NCLA looks forward to a robust challenge to the SEC’s power to deny Americans a hearing before a constitutional tribunal.”—Peggy Little, NCLA Senior Litigation Counsel

“The  SEC brazenly violated Michelle Cochran’s civil rights, and the  injunction stopping the SEC proceedings against her is an important  first step in holding the SEC to account.”—Philip Hamburger, NCLA President

“This  victory ensures that Michelle will get a decision from a real judge  before she has to endure any further SEC hearings. It should also awaken  other courts to the rights at stake here—and the need to protect such  rights before administrative hearings ever proceed.”—Mark Chenoweth, NCLA General Counsel

“The  court’s ruling will have consequences across the country. The court  rebuked the SEC’s attempt to keep federal courts from even questioning  what happens at in-house administrative proceedings.”—Caleb Kruckenberg, NCLA Litigation Counsel

ABOUT NCLA 

NCLA is a nonprofit civil rights organization founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy  strive to tame the unlawful power of state and federal agencies and to  foster a new civil liberties movement that will help restore Americans’  fundamental rights.

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