New Civil Liberties Alliance

SCOTUS Showdown: Justice Gorsuch v. Justice Barrett Vec gives a blow-by-blow account of the textualists doing battle. The Assassination Attempt of Justice Kavanaugh Mark and Vec share their thoughts on the attempted killing of Justice Kavanaugh.

Due Process Victory! AZ Court of Appeals Sides with NCLA A three-judge panel of the Arizona Court of Appeals ordered the removal of NCLA client Phillip B.’s name from the Arizona Department of Child Safety (DCS) Central Registry of substantiated findings of child abuse. DCS’s then-Director had ‘deleted’ factual findings and credibility determinations made by an independent administrative law judge (ALJ) who took live testimony in the case. DCS thereby unjustly destroyed Phillip B.’s reputation and career. In a decision that vindicates Phillip B., the Arizona Court of Appeals held: “Because [the DCS] Director’s Decision here does not meet the regulatory requirements for a substantiated finding, there is no legal authority for the Director to enter Phillip B.’s name into the Registry.” Mark announces the victory in the AZ Court of Appeals. In NCLA Amicus Win, SCOTUS Rules Against HHS A unanimous Supreme Court has ruled that the Department of Health and Human Services (HHS) violated the 2003 Medicare Act by lowering drug reimbursement rates for specific hospitals. NCLA filed an amicus brief in support of petitioners in American Hospital Association v. Becerra. NCLA agreed with the petitioners’ argument that HHS’s authority under the Medicare statute to “adjust[ ]” average sales price when calculating reimbursement rates does not include wholesale authority to substitute acquisition costs for average sales price. Mark discusses the amicus victory.

Geophysicist Disinvited from Prestigious Scientific Lecture for Wrongthink NCLA’s President and General Counsel Mark Chenoweth chats with Professor Dorian Abbot of the University of Chicago. The Massachusetts Institute of Technology invited Prof. Abbot to give a prestigious public lecture in the fall of 2021. But then the university withdrew its invitation after some students and faculty complained about a Newsweek op-ed co-authored by Abbot. In it, he argued that many aspects of affirmative action—and especially diversity, equity, and inclusion policies—violate “the ethical and legal principle of equal treatment” and treat “people as members of a group rather than as individuals, repeating the mistake that made possible the atrocities of the 20th century.”

The Winner of the King George III Prize Is … Mark and Clegg Ivey, NCLA’s Director of Engagement, discuss who won this year’s King George III Prize for worst bureaucrat. WhatEgbert v. BouleMeans forBivensCases Vecexplains the SCOTUS ruling inEgbert v. Bouleand what it means forBivenscases.

NCLA Wins Appeal in Cornell University Title IX Case The U.S. Court of Appeals for the Second Circuitrecentlyvacatedthe dismissal of the Title IX and defamation claims inDr. MukundVengalattorev. Cornell University and the U.S. Department of Education.The Courtheld that university discrimination against facultyon the basis ofsex is subject to suit under Title IX. The majority and concurring opinions expressed shock at the lack of due process and general treatment of Dr. MukundVengalattoreby Cornell University. Judge José Cabranes, in his concurrence, noted that Cornell’s actions (if proved at trial) represent “deeply troubling aspects of contemporary university procedures to adjudicate complaints under Title IX” and “signal a retreat from the foundational principle of due process.” NCLA’s SCOTUS Amicus BriefOnNondelegation Doctrine NCLAhas filed anamicusbriefwith the U.S. Supreme Court in the cases consolidated withHaaland, et al. v.Brackeen, et al.NCLA is urging the Supreme Court to declare that the Indian Child Welfare Act (ICWA) divests Congress’s lawmaking function to an entity outside of the federal government (i.e., Indian tribes), which Article I, Sec. 1 of the U.S. Constitution forbids.

Our 5th anniversary video highlights the history of the organization, its cases, and the stories of the clients who have stood up to unlawful abuses of administrative power by state and federal agencies. Since its founding, NCLA has evolved into a nationally renowned public-interest law firm specializing in filing original lawsuits and amicus curiae briefs against government agencies and defending targets of administrative enforcement. Just in the last month, the U.S. Supreme Court granted certiorari in Securities and Exchange Commission v. Michelle Cochran, NCLA’s first original lawsuit to be argued before the Court, and the Second and Third Circuits ruled in NCLA’s favor in lawsuits concerning the violation of our clients’ First Amendment and Due Process rights. NCLA currently has three cases with pending petitions for writ of certiorari: Aposhian v. Garland, et al., Romeril v. SEC, and Buffington v. McDonough. Website: https://nclalegal.org Facebook: https://www.facebook.com/NewCivilLibertiesAlliance Twitter: https://twitter.com/NCLAlegal LinkedIn: https://www.linkedin.com/company/ncla-legal/ Instagram: https://www.instagram.com/nclalegal/

Tenth Circuit Rules Against R-CALF on FACA The United States Circuit Court of Appeals for the 10th District has ruled against R-CALF USA and ranchers who had challenged USDA’s use of two private groups to help formalize the government’s proposed rule requiring electronic ear tags. Mark discusses the Tenth Circuit ruling in R-CALF USA v. USDA. Is the Government Directing Social Media Sites to Censor Speech? NCLA argues in the lawsuit, Changizi, et al. v. HHS, et al., that the U.S. Surgeon General and the Department of Health and Human Services (HHS) have directed social media platforms, including Twitter, to censor alleged “misinformation” about Covid-19. The speech ban has included information the government later conceded was true but that conflicted with the government’s messaging on Covid-19 at the time. Vec discusses the U.S. District Court for the Southern District of Ohio’s recent determination in the case.

The Federal Employee Vaccine Mandate NCLA has filed an amicus curiae brief on behalf of clients it represents in the class-action lawsuit James Joseph Rodden, et al. v. Dr. Anthony Fauci, et al., who have acquired natural immunity to Covid-19. NCLA’s brief in Feds for Medical Freedom v. Biden supports a petition for Fifth Circuit en banc review after a split Fifth Circuit panel vacated a nationwide injunction issued by U.S. District Judge Jeffrey Brown against the Federal Employee Vaccine Mandate. Vec discusses the amicus brief in Feds for Medical Freedom. Jarkesy v. SEC Opinion Sparks Public Overreaction The U.S. Court of Appeals for the Fifth Circuit recently handed down a major decision vacating SEC’s decision in Jarkesy v. SEC and finding that the agency’s in-house adjudication of Mr. Jarkesy violated his constitutional rights. Mark discusses overreaction by some to the Jarkesy opinion.

Colorado resident David Lesh faces six months’ probation, 160 hours of community service, and a $10,000 fine for posting a photo on his personal Instagram account that allegedly depicted him snowmobiling over a jump at a closed ski resort. Mr. Lesh, who owns an outdoor apparel company, was charged pursuant to an overbroad delegation by Congress, that allows the U.S. Forest Service to make it a crime to sell merchandise or engage in commercial activity on its land without authorization. NCLA is arguing that Congress has unlawfully divested itself of the power to write criminal laws related to the management of national forest lands. The agency has also failed to take into consideration Mr. Lesh’s First Amendment right to post a photo to his Instagram account. The legislative delegation at issue, which authorized the Secretary of Agriculture to make rules to prevent trespasses and regulate the use of occupancy of national forest lands, is impermissibly vague, as Mr. Lesh’s case demonstrates. The reason the Government charged him with unauthorized sale is that Mr. Lesh had stated, in an interview with the New Yorker Magazine, that his sales had unexpectedly increased as a result of the publicity that the case had received. Congress only gave the U.S. Forest Service authority to enact regulations to prevent physical trespass of the land. The law in question had nothing to do with someone incidentally profiting because he was charged with a federal offense. Yet, a federal magistrate found him guilty of operating a snowmobile off of a designated route, and conducting unauthorized work or sale on federal lands. Beyond the serious constitutional concerns raised here, the Government also lacks sufficient proof to support the charges. There was no evidence that Mr. Lesh was the person in the photo, as the face of the individual cannot be discerned. There was also no evidence whatsoever that Mr. Lesh sold merchandise or conducted any work activity upon lands administered by the U.S. Forest Service. NCLA is asking the U.S. District Court for the District of Colorado to reverse the magistrate’s determination and vacate the sentence. Website: https://nclalegal.org Facebook: https://www.facebook.com/NewCivilLibertiesAlliance Twitter: https://twitter.com/NCLAlegal LinkedIn: https://www.linkedin.com/company/ncla-legal/ Instagram: https://www.instagram.com/nclalegal/

SCOTUS Rejects FEC Argument Against Sen. Cruz’s Standing to Sue In a 6-3 ruling, the Supreme Court has invalidated a provision of federal campaign finance law limiting the amount of money a candidate can be repaid for personal loans made to their campaign. NCLA filed an amicus brief in support of Senator Ted Cruz’s challenge to Section 304 of the Bipartisan Campaign Reform Act of 2002, which unconstitutionally burdens core political speech. Senator Cruz also raised challenges to the Federal Election Commission’s (FEC) implementing regulation. In the amicus brief, NCLA argued, and the Court agreed, that the FEC’s proposed heightened standing standard, if adopted, would severely restrict the ability to challenge unlawful government action. Mark interviews NCLA Litigation Counsel Sheng Li about our amicus victory in FEC v. Cruz. Court Denies Covid Eviction Moratorium Taking Claim Thirty-eight landlords and rental property owners filed suit in the U.S. Court of Federal Claims, asserting that the nationwide residential eviction moratorium effected either a compensable taking or an illegal exaction under the Fifth Amendment. The plaintiffs argued in Darby Development Company v. U.S. that the government forced them to continue housing non-rent-paying tenants rather than replace them with rent-paying tenants and subjected them to significant fines and imprisonment if they pursued otherwise lawful evictions. The Court granted the defendant’s motion to dismiss. Vec bemoans the Court’s decision.

NCLA Celebrates Third Circuit Victory in Free Speech Lawsuit Against NLRB The U.S. Court of Appeals for the Third Circuit recently sided with NCLA in its ruling to vacate the National Labor Relations Board’s (NLRB) flawed decision to charge FDLRST Media, LLC with committing an “unfair labor practice.” The Court said, “[t]he record contains no sign—indeed, no inkling—of any circumstance at FDRLST Media that leads us to conclude that a reasonable employee would interpret Domenech’s tweet as a veiled threat.” Mark and Vec celebrate the major First Amendment win and the merits of the FDRLST concurrence by Judge Paul Matey.

NCLA Celebrates Fifth Circuit Decision in Jarkesy v. SEC The U.S. Court of Appeals for the Fifth Circuit handed down a major decision vacating SEC’s decision in Jarkesy v. SEC and finding that the agency’s in-house adjudication of Mr. Jarkesy violated his constitutional rights. NCLA filed an amicus brief in support of his appeal of an SEC Final Order that imposed sanctions for alleged violations of securities laws. Vec and Mark lay out the three major holdings from Fifth Circuit’s opinion and celebrate the merits.

Supreme Court Grants Cert in SEC v. Cochran The U.S. Supreme Court has granted certiorari in Securities and Exchange Commission v. Michelle Cochran. The Court will review a Fifth Circuit en banc decision that ruled Texas accountant Michelle Cochran has the right to challenge the constitutionality of her Administrative Law Judge’s removal protections in federal court before undergoing an administrative adjudication. Mark interviews lead counsel Peggy Little about the Supreme Court cert grant. What’s Next? Vec and Mark discuss additional aspects of the Cochran case and what to expect.

NCLA is suing the City of Coral Gables as well as the Florida Department of State (FDOS) and the Florida Department of Law Enforcement (FDLE), on behalf of long-time Coral Gables resident, Raul Mas Canosa. Mas Canosa says the city’s use of Automatic License Plate Readers, is a violation of Florida Law and Floridians’ Fourth Amendment rights to privacy. The ALPR system tracks all vehicle traffic and stores the data for three years. It also allows law enforcement to pore over those records for security purposes, but the City has never identified a single crime that has been solved by this system. Mas Canosa and NCLA's Sheng Li join CBS 4 News Miami to discuss the case against the City of Coral Gables.

Plaintiff Ben Domenech joins The Chris Stigall show to discuss his recent major First Amendment win in the case, FDRLST Media v. NLRB.

The U.S. Court of Appeals for the Third Circuit has dismissed the case against Ben Domenech and FDRLST Media over a joke posted on Twitter. Ben Domenech, publisher for NCLA client FDRLST Media, joins Clay and Buck to discuss the recent victory in FDRLST Media, LLC v. NLRB. Listen to the full podcast here: https://ihr.fm/3sMkGzC

NCLA Litigation Counsel Jenin Younes and Senior Litigation Counsel John Vecchione join The Bill Walton Show to explain NCLA's First Amendment lawsuit against the federal government and what’s at stake for free speech.

NCLA’s Four Cert Petitions Before the Supreme Court Mark explains the four cert petitions NCLA clients have before the U.S. Supreme Court. The Threats Facing Judges After a Supreme Court draft opinion in Dobbs v. Jackson Women’s Health was leaked, activists published the addresses of some of the justices’ homes and organized protests outside of them. Some also posted threats of violence against them on social media platforms. Vec discusses threats to U.S. federal judges for doing their jobs.

NCLA Files Lawsuit Against Discriminatory Fulbright Rule A complaint filed by NCLA argues the U.S. Department of Education’s application process for the Fulbright-Hays Fellowship unlawfully discriminates based on applicants’ nation of origin. NCLA represents the plaintiffs in Samar Ahmad and Edgar Ulloa Lujan v. U.S. Department of Education, et al., which asks the U.S. District Court for the Western District of Texas to declare this process unconstitutional and not authorized by the Fulbright-Hays Act of 1961.Mark and Vec discuss NCLA’s new case. Government Tracking of Charter Boats Case Garners Strong Amicus Support The states of Louisiana, Alabama, Mississippi, and South Carolina, and two public interest organizations are among the amici curiae who have filed briefs in support of the arguments presented by NCLA in the lawsuit challenging government agencies—Commerce, NOAA, and NMFS—forcing charter boats that take customers fishing and sightseeing in the Gulf of Mexico to purchase a vessel monitoring system (VMS) and submit to 24-7 warrantless surveillance. Vec discusses the amicus briefs in support of Mexican Gulf v. Commerce in the Fifth Circuit.

Federal Agencies and Regulatory Overreach Mark and Vec discuss the tendency of agencies to address problems they were not set up to tackle. The Supreme Court’s Unprecedented Leak A Supreme Court draft opinion written by Justice Samuel Alito that was leaked and published on Monday by Politico indicated the court might be preparing to overturn Roe v. Wade, the 1973 precedent that established a constitutional right to an abortion. Mark and Vec discuss the unprecedented SCOTUS draft leak, which Chief Justice John Roberts described as “absolutely appalling.”

NCLA Files Appeal in Gulf of Mexico Charter Boat Class-Action Lawsuit NCLA has filed its opening brief in its appeal to the U.S. Court of Appeals for the Fifth Circuit on behalf of more than 1,300 federally permitted charter boat owners in the class-action lawsuit, Mexican Gulf Fishing Company, et al. v. Dept. of Commerce, et al. The appeal challenges a Final Rule issued by the National Marine Fisheries Service (NMFS) pursuant to the Magnuson-Stevens Act. It requires 24-hour GPS tracking of recreational charter boat fishing vessels in the Gulf of Mexico. NCLA argues that the district court erred in holding that the Fourth Amendment allows an agency to monitor charter boat operators without a warrant or any suspicion of wrongdoing. Vec describes the appeal in Mexican Gulf. New Texas Case May Challenge Humphrey’s Executor Ruling Humphrey's Executor v. United States was a case decided on May 27, 1935, by the United States Supreme Court. It involved the power of the president to remove a member of the Federal Trade Commission for reasons other than the ones explicitly stated in the Federal Trade Commission Act. The Supreme Court ruled that the president could not remove a commissioner for a cause other than those listed in the act, which were “inefficiency, neglect of duty, or malfeasance in office.” Mark discusses Biden v. Texas, a case that may challenge Humphrey’s Executor.

NCLA's Director of Engagement, Clegg Ivey, joins the Federalist Society's 2022 Ohio Chapters Conference with Prof. William S. Jordan III, C. Blake of the University of Akron, Patrick Strawbridge, partner of Consovoy McCarthy Park PLLC, and moderator Hon. Alice Batchelder, a senior judge of the U.S. Court of Appeals for the Sixth Circuit, to discuss the administrative state's threat to individual liberties.

NCLA founder Professor Philip Hamburger joins Hon. Sally Katzen at the Federalist Society Tenth Annual Executive Branch Review Conference to look at recent and upcoming Supreme Court cases—ranging from vaccine mandates, to environmental rulemakings, to foundational challenges to agency structure—and to discuss the future of the administrative state.

What is “Cassell” Deference? Ever heard of “Cassell” deference?Us neither.But it’s a problem. Mark and Vec explain. NCLA’s King George III Prize Enters ‘Elitist Eight’ Round The KGIII prize is NCLA’s campaign to call attention to the most egregious violations of our basic civil liberties by highlighting the people and institutions responsible for those abuses. Starting with 32 nominees, we’ve now shaved the bracket down to the final eight nominees. Mark and Clegg Ivey, NCLA’s Director of Engagement, banter over the KGIII cutdown to the Elitist Eight.

NCLA Files for Preliminary Injunction in Twitter Censorship Case NCLA has filed a motion for a preliminary injunction in Changizi v. HHS, a lawsuit challenging Government directed censorship of Twitter users who spread so-called “misinformation” about Covid-19. Absent a preliminary injunction, Plaintiffs will suffer irreparable harm in the form of continued violations of their First Amendment and statutory rights, as well as the prospect of their private information being handed over to the Government in violation of their Fourth Amendment rights to remain free from unreasonable searches and seizures. Vec discusses Changizi v. HHS and the preliminary injunction motion. Elon Musk Takes Over Twitter Twitter’s board has announced it has agreed to sell the social media company to Tesla CEO Elon Musk in a deal valued at $44 billion. Musk has pledged to make Twitter a bastion of free speech. Mark and Vec discuss the implications of Musk’s Twitter takeover.