In a decision addressing the scope of constitutional challenges to agency action, the US Court of Appeals for the District of Columbia Circuit affirmed a district court’s injunction barring an investigation by the US International Trade Commission premised on a protective order issued by an unconstitutionally appointed administrative law judge (ALJ). Sidak v. ITC, Case No. 23-5149 (D.C. Cir. Apr. 24, 2026) (Katsas, Rao, Walker, JJ.)
Gregory Sidak served as an expert witness in a 2017 Commission proceeding. During that proceeding, the presiding ALJ issued a protective order governing confidential information. At the time, ALJs were appointed unilaterally by the Commission’s chairman – a practice later called into question by the Supreme Court’s decision in Lucia v. SEC, which held that ALJs are “inferior officers” who must be appointed by the president, courts, or the “head” of a department. The Commission subsequently ratified the appointments of its ALJs but did not ratify their prior actions, including the protective order at issue.
Years later, the ITC initiated an investigation into whether Sidak violated that protective order. In response, Sidak filed suit in district court seeking to enjoin the investigation, arguing that the order was unenforceable because it had been issued by an improperly appointed ALJ and never ratified. The district court granted a permanent injunction, and the Commission appealed.
The DC Circuit affirmed, first addressing several threshold procedural issues. The Court determined that the district court had subject matter jurisdiction under 28 U.S.C. § 1331 because Sidak’s claim arose directly under the US Constitution. The Court explained that no applicable statutory review scheme displaced that jurisdiction for this type of claim, and that litigants may pursue equitable relief to enjoin unconstitutional agency action.
The DC Circuit also rejected the Commission’s argument that Sidak’s claim was unripe. Because the case presented purely legal questions regarding the enforceability of the protective order and Sidak faced a credible threat of sanctions, the dispute was both constitutionally and prudentially ripe. The Court further explained that final agency action is not required where a plaintiff brings an implied constitutional claim rather than a claim under the Administrative Procedure Act.
Turning to timeliness, the DC Circuit determined that Sidak had not forfeited his Appointments Clause challenge. Unlike a party that invokes an agency adjudication and seeks a ruling on the merits, Sidak was a third-party witness who neither initiated the underlying proceeding nor sought relief from the ITC. The Court emphasized that forfeiture principles apply differently in that context and that Sidak had no earlier opportunity or obligation to raise his claim.
On the merits, the DC Circuit affirmed the district court’s decision to enjoin the Commission’s investigation. The Commission did not dispute that the ALJ who issued the protective order had been improperly appointed or that the order had not been ratified. The DC Circuit concluded that the district court did not abuse its discretion by granting injunctive relief to prevent enforcement of an order lacking constitutional authority.
Finally, the DC Circuit rejected the Commission’s challenge to the injunction under the traditional equitable factors. The Court noted that the Commission had failed to meaningfully address key elements of the eBay framework (particularly irreparable harm) and had not preserved certain arguments below. Given the constitutional violation and the Commission’s litigation posture, the Court found no basis to disturb the injunction.
Practice note: This decision confirms that litigants may bring pre-enforcement constitutional challenges to agency action without waiting for final agency action where no applicable statutory review scheme governs. However, the availability of such relief is closely tied to the nature of the claim (particularly with regard to structural constitutional challenges) and does not broadly displace ordinary administrative law requirements.
