Fleming v. United States Department of Agriculture, No. 17-1246 (D.C. Cir. 2021)
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The DC Circuit granted petitions for review asking the court to set aside the Department's decisions imposing sanctions on petitioners for violating the Horse Protection Act. The Supreme Court subsequently decided Lucia v. SEC, 138 S. Ct. 2044 (2018), holding that the SEC's ALJs had not been appointed in compliance with the Appointments Clause. In light of Lucia, the government agrees with petitioners that the ALJ who presided over petitioners' cases was improperly appointed, and moved for vacatur of the challenged orders. Petitioners oppose the government's motion, seeking to address a number of additional challenges in advance.
In regard to petitioners' argument that the dual layers of for-cause-removal protections for the Department's ALJs unconstitutionally limit the President's removal power under Free Enterprise Fund v. PCAOB, 561 U.S. 477, 492 (2010), the court concluded that petitioners have forfeited their argument by failing to raise it before the ALJ or Judicial Officer, and thus the argument is subject to a mandatory, non-excusable, issue-exhaustion requirement imposed by statute. The court concluded that petitioners preserved the remainder of their claims before the agency, but they fare no better in terms of obtaining additional relief from the court at this time.
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