NCLA Wins Major Fifth Circuit en Banc Decision Versus SEC

In a major victory for NCLA, the full Fifth Circuit bench ruled that Texas accountant Michelle Cochran has the right to challenge the constitutionality of her Administrative Law Judge’s (ALJ) removal protections in federal court before undergoing an administrative adjudication. NCLA represents Ms. Cochran in Michelle Cochran v. Securities and Exchange Commission. We applaud this decision, which will allow our client to plead her case before a real Article III federal court rather than be subjected to an endless series of unlawful agency hearings.

At issue before the en banc panel was whether a provision of the Securities Exchange Act of 1934 implicitly strips federal district courts of subject-matter jurisdiction to hear structural constitutional claims. Judge Haynes’s opinion, joined by eight others, reverses and remands the district court’s reluctantly adverse decision. Her decision for the court holds that Section 78y of the Securities and Exchange Act of 1934 neither explicitly nor implicitly strips federal district courts of jurisdiction to decide Article II removal questions. 

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