NCLA Files Suit Over Unconstitutional SEC Appointees

Group Urges Court to Stop ALJ from Hearing Raymond Lucia Sr. Case

WASHINGTON, Nov. 29, 2018 -- The New Civil Liberties Alliance, a nonprofit civil-rights organization and public-interest law firm, has filed a complaint seeking declarative and injunctive relief against the U.S. Securities and Exchange Commission in the U.S. District Court for the Southern District of California. NCLA represents Ray Lucia(pronounced "loo-chee-aa") and his former company. The suit seeks to prevent these Plaintiffs from being compelled to submit—yet again—to a proceeding before an unconstitutional Administrative Law Judge (ALJ) at the SEC. NCLA is also seeking a stay in that proceeding today from the ALJ.

Mr. Lucia suffered irreparable professional, reputational and financial harm from the first unconstitutional proceeding. He should not have to endure another years-long, constitutionally flawed ALJ proceeding before getting heard—and vindicated—on his constitutional objections.

"There is a human toll that is rarely considered in cases like this. Even though the SEC's prior decision has been set aside, Ray Lucia Sr.'s name and reputation are still tainted. Haling a citizen before an unlawful ALJ once is a grave breach of his constitutional rights. Doing it twice is unthinkable," said Peggy Little, NCLA Senior Litigation Counsel.

The SEC charged Mr. Lucia in 2012. Since then, he's endured six years of protracted litigation taking his case all the way to the U.S. Supreme Court -and winning- on the argument that the first ALJ he appeared before was improperly appointed. Rather than retrying the Lucia case before the Commission itself, the SEC is proceeding in front of another constitutionally defective ALJ. This time, the problem is that multiple layers of removal protection violate the Constitution's requirement that the President be able to remove all officers of the United States.

The Solicitor General's briefing to the Supreme Court in Lucia v. SEC flagged the President's inability to remove ALJs as constitutionally dubious and asked the Court to decide the issue then, which it declined to do (awaiting further input from lower courts). Despite this glaring constitutional problem, SEC persists in ignoring its due process obligation to bring enforcement actions in a lawful forum.

"The SEC could have brought its original enforcement proceeding in federal district court. Instead, it chose to bring the case before an unconstitutionally appointed in-house judge. And now it is violating Article II of the Constitution again. The process has become the punishment for Ray. Enough is enough," said Mark Chenoweth, Executive Director and General Counsel of NCLA.

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 pro bono public-interest litigation and other advocacy strive to tame the unchecked power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans' fundamental rights. For more information visit us online: NCLAlegal.org

Media Inquiries: Please contact Judy Pino, 202-869-5218 or email Judy.Pino@NCLA.legal