Professor Marshall Breger addressed the Faculty Research Colloquia Friday, January 20. He discussed his current research on “Implied Preclusion, Exhaustion and the Administrative Judiciary”.

His paper discusses if and when parties with constitutional claims who are involved in an altercations with an administrative agency can “skip” in-house administrative procedures and go directly to federal court or whether they have to exhaust their administrative remedies first. Whether or not such ‘skipping’ is allowed can have significant impact on administrative adjudication and by implication on the administrative state. The 2nd, 4th, 7th, 11th, and DC circuits found that the applicable statutes required that petitioners exhaust the in-house adjudication system before going to federal court. The 5th circuit en banc in Cochrane disagreed, thus creating a conflict between the circuits.

The Supreme Court granted certiorari and held oral argument last Nov. 29 in SEC v. Cochrane which directly posed this issue. The case concerns an SEC enforcement action under the Dodd-Frank Act. The Act gives the SEC a choice between commencing an enforcement action “in-house” or start an enforcement proceeding in federal court. The agency chose to proceed ‘in-house.’ Ms. Cochrane claimed that the SEC removal process for ALJs was constitutionally flawed (in that they had been given ‘for cause’ removal protection) and that she should not have to ‘exhaust’ the administrative process before going to federal court. While in some sense a technical doctrinal question, the results of the Court’s decision in Cochrane may have vast implications to administrative agencies as we know them.

The Faculty Research Colloquium is a monthly meeting whereby law school faculty present on ‘work in progress’ and receive criticism and suggestions from their colleagues. It is directed by Professor Lucia Silecchia, Associate Dean of Faculty Research.