PLF-Cato Joint Litigation Strategy Forum for Administrative State Reform: January 26

January 26, 2023, at 12:00 p.m. EDT  - 1:15 p.m. EDT 

Cato Institute , 1000 Massachusetts Ave, NW Washington, DC

This event is co-hosted by Pacific Legal Foundation and The Cato Institute. 

Our next discussion  will focus on the implications of a reinvigorated Seventh Amendment right to jury trial for the administrative state. 

The Seventh Amendment guarantees the right to a jury trial in suits at common law—including in suits brought under a statute seeking civil penalties. In Atlas Roofing v. OSHRC (1977) and subsequent cases, the Supreme Court weakened Seventh Amendment protections for targets of administrative prosecutions. Last May, however, the U.S. Court of Appeals for the Fifth Circuit renewed the focus on the Seventh Amendment in administrative law. In Jarkesy v. SEC, the court held that the SEC’s in-house enforcement deprived the petitioners of their constitutional right to a jury trial. The Fifth Circuit’s reasoning applies where the agency prosecutes “fraud.” This was the key to distinguishing Atlas Roofing, which instead pertained to a violation “unknown to the common law.” The SEC undoubtedly will seek review of this ruling from the Supreme Court. 

If it stands, Jarkesy would incur significant consequences for the administrative state. Enforcement of fraud-like allegations for steep civil penalties comprise a significant subset of coercive agency adjudications, although the vast majority of agency adjudications involve benefits programs. What other agencies are susceptible to Jarkesy’s holding? Is the Fifth Circuit’s treatment of Atlas Roofing viable? Are there other ways to distinguish Atlas Roofing?

Our January 26 program will encourage participation from all attendees. To help facilitate the discussion, we will hear from Ashley Parrish of King & Spalding and Oliver Dunford from Pacific Legal Foundation.

You’re welcome to recommend the program to other attorneys in your firm who share our goals, especially if you are unable to attend yourself.

Please reach out to Gwen Hodge with any questions.