Amicus Brief Argues That Justice Delayed Is Justice Denied

March 17, 2021

In light of recent Supreme Court precedent, there is a substantial question about whether administrative enforcement proceedings prosecuted by independent regulatory agencies such as the Securities and Exchange Commission(SEC) and the Federal Trade Commission (FTC) before their own  removal-for-cause-only administrative law judges (ALJs) violate the separation of powers, and thus are unconstitutional. Federal courts of appeals in several circuits have held, however, that federal district courts have been impliedly stripped of federal question jurisdiction to consider such structural constitutional claims. These courts of appeals have held that instead, respondents in SEC and FTC ALJ-conducted administrative enforcement proceedings must endure the costs and burdens of such a proceeding, suffer an adverse Commission judgment, and only then seek judicial review of their constitutional claims in a court of appeals.

In one of these cases, the respondent in an FTC administrative enforcement proceeding has filed a petition for rehearing en banc in the Ninth Circuit.  Capital Appellate Advocacy founder Lawrence S. Ebner has authored an amicus brief on behalf of the Atlantic Legal Foundation (ALF) in  support of the petition.

Issue Areas:  Free Enterprise, Limited Government

Case: Axon Enterprise, Inc. v. Federal Trade Commission, No. 20-15662 (9th Cir.)

Question Presented:  Whether the respondent in an FTC administrative enforcement proceeding can obtain judicial review of its structural constitutional claims


Background:  In Axon v. FTC, 986 F.3d 1173 (9th Cir. 2021), a Ninth Circuit panel, in a 2 to 1 decision, affirmed an Arizona federal district court’s holding that the FTC Act, which provides for court of appeals review of FTC cease and desist orders issued after an administrative hearing, impliedly strips district courts of jurisdiction to consider structural constitutional challenges to the FTC administrative enforcement scheme.

ALF Amicus BriefALF’s amicus brief urges the Ninth Circuit to grant en banc review because (i) the jurisdictional issue is exceptionally important, (ii) the majority’s ambivalent opinion, coupled with the strong dissenting opinion, cries out for further review, and (iii) district courts have not been impliedly stripped of federal question jurisdiction because delayed judicial review of structural constitutional claims cannot be meaningful.  Law360 has published on article discussing ALF’s amicus brief and quoting Larry Ebner.

Status: The petition for rehearing en banc is pending.

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The Atlantic Legal Foundation is a national, nonprofit, nonpartisan, public interest law firm whose mission is to advocate for individual liberty, free enterprise, property rights, limited government, sound science in judicial and regulatory proceedings, and school choice.

Capital Appellate Advocacy founder Larry Ebner serves as Executive Vice President & General Counsel of the Atlantic Legal Foundation.