Case: 19-10396   Document: 00515524589     Page: 1   Date Filed: 08/12/2020




                           REVISED 8/12/2020

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                 No. 19-10396                         FILED
                                                                August 11, 2020
                                                                 Lyle W. Cayce
MICHELLE COCHRAN,                                                     Clerk

             Plaintiff - Appellant

v.

SECURITIES AND EXCHANGE COMMISSION; JAY CLAYTON, in his
official capacity as Chairman of the U.S. Securities and Exchange
Commission; WILLIAM P. BARR, U. S. ATTORNEY GENERAL, in his
Official Capacity,

             Defendants - Appellees



                Appeal from the United States District Court
                     for the Northern District of Texas
                           USDC No. 4:19-CV-66


Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      Judicial review of Securities and Exchange Commission proceedings lies
in the courts of appeals after the agency rules. 15 U.S.C. § 78y. This appeal
asks whether a party may nonetheless raise a constitutional challenge to an
SEC enforcement action in federal district court before the agency proceeding
ends. All five courts of appeals to address the question have held that a party
cannot circumvent the SEC judicial review statute that way. Bennett v. SEC,
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                                 No. 19-10396

(4th Cir. 2016); Hill v. SEC, 

(11th Cir. 2016); Tilton
v. SEC, 

(2d Cir. 2016); Jarkesy v. SEC, 

(D.C. Cir.
2015); Bebo v. SEC, 

(7th Cir. 2015). Just last year we held the
same for the Federal Deposit Insurance Corporation’s judicial review provision
in an appeal raising the separation-of-powers claim asserted in this case. See
Bank of La. v. FDIC, 

(5th Cir. 2019). Bound by Bank of Louisiana
and in accord with the unanimous view of other circuits, we hold that the
statutory review scheme is the exclusive path for asserting a constitutional
challenge to SEC proceedings.
                                       I.
      The SEC brought an enforcement action against Michelle Cochran. It
alleged that Cochran, a CPA, failed to comply with auditing standards in
violation of the Securities Exchange Act. Under that law, the SEC can initiate
enforcement proceedings in district court, before the Commission, or before an
administrative law judge. 15 U.S.C. §§ 78d-1(a), 78u(d). The SEC elected to
proceed before an ALJ.
      While Cochran’s case was pending, the Supreme Court held that SEC
ALJs are Officers of the United States whom the President, a court of law, or
a department head must appoint. Lucia v. SEC, 

, 2049, 2051
(2018). Before Lucia, SEC staff selected ALJs.

Following Lucia,
the SEC reassigned all adjudications to judges whose appointments had, by
then, been ratified by the Commission.
      After the new ALJ took over Cochran’s case, Cochran filed this lawsuit
in district court. She sought to enjoin the enforcement action because although
there is no longer a problem with how ALJs are appointed, Cochran contends
there is still a problem with how they can be removed. The constitutional
problem, in her view, is that the ALJs enjoy multiple layers of “for cause”
removal protection. See Free Enter. Fund v. Pub. Co. Accounting Oversight

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Bd., 

, 484 (2010) (holding unconstitutional removal protections for
officers of the Public Company Accounting Oversight Board). Cochran also
alleged a due process violation on the ground that ALJs do not follow SEC rules
and procedures.
      The district court dismissed for lack of subject jurisdiction. It concluded
that 15 U.S.C. § 78y provides the exclusive means for asserting these claims
before an Article III court—in the court of appeals after a final order issues.
After Cochran appealed, a panel of this court enjoined the SEC proceeding
pending this court’s decision.
                                         II.
      This appeal is not about whether Cochran will have the opportunity to
press her separation-of-powers claim. She will. It instead asks: Where and
when? As these are questions of federal court jurisdiction, Congress gets to
answer them. Sheldon v. Sill, 

, 442 (1850) (“[T]he disposal of the
judicial power, except in a few special cases, belongs to Congress; and the
courts cannot exercise jurisdiction in every case to which the judicial power
extends, without the intervention of Congress, who are not bound to enlarge
the jurisdiction of the Federal courts to every subject which the Constitution
might warrant.”).
      Cochran contends       that Congress       supplied    the answer to the
jurisdictional issue in the general federal question statute, which allows
district courts to hear cases “arising under the Constitution.” 18 U.S.C. § 1331.
The SEC counters that the specific review provision for SEC enforcement
actions displaces the general jurisdiction statute. Section 78y states:
      A person aggrieved by a final order of the Commission entered pursuant
      to this chapter may obtain review of the order in the United States Court
      of Appeals for the circuit in which he resides or has his principal place
      of business, or for the District of Columbia Circuit, by filing in such
      court, within sixty days after the entry of the order, a written petition
      requesting that the order be modified or set aside in whole or in part.

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15 U.S.C. § 78y(a)(1).
      Congress may strip federal courts of jurisdiction explicitly or implicitly. See
Thunder Basin Coal Co. v. Reich, 

, 207 (1994). The SEC argues
that section 78y, by channeling review directly to the court of appeals, does the
latter. This type of judicial review scheme divests district courts of jurisdiction
if the statute evinces a “fairly discernible” intent to limit jurisdiction, and the
claims at issue are the type that Congress intended the agency to review. Elgin
v. Dep’t of Treasury, 

, 9–10 (2012).
                                         A.
      The text and structure of the Securities Exchange Act reveal the
necessary intent to limit district court jurisdiction.

text,
the grant of jurisdiction to the aggrieved person’s local circuit or the D.C.
Circuit only after issuance of a final order implies that other courts lack
jurisdiction. See 

; Free 

(“Generally, when Congress creates procedures designed to permit agency
expertise to be brought to bear on particular problems, those procedures are to
be exclusive.”); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:
THE INTERPRETATION OF LEGAL TEXTS 107 (2012) (“[S]pecification of the one
implies exclusion of the other. . . .”). That suggestion moves into the realm of
certainty (which the caselaw does not even require) when one considers
another provision declaring that the court of appeals has “exclusive”
jurisdiction “to affirm or modify and enforce or to set aside the order in whole
or in part.” 15 U.S.C. § 78y(a)(3); 

. Other provisions
set forth exhaustion requirements, the standard of review the court of appeals
is to follow, and the process for remanding to “adduce additional evidence.” 15
U.S.C. §§ 78y(c)(1); (a)(4); (a)(5); 

. It would undermine
those rules if a party could seek review in a district court not constrained by
those rules. This comprehensive scheme for a postadjudication appeal straight

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to the court of appeals makes it “fairly discernible that Congress intended to
deny . . . an additional avenue of review in district court.” 

.
       The structure of the SEC enforcement scheme provides further evidence
for that conclusion. As mentioned, the SEC has three options when pursuing
a case. The Commission may adjudicate the case itself, pursue charges before
an ALJ, or file suit in district court. The agency’s statutory power to select the
forum would be illusory if defendants could file an action in district court.

; 

n.3.               And the provision
authorizing the SEC to seek injunctive relief in district courts, 15 U.S.C.
§ 78u(d)(1), would be unnecessary if district courts retained residual
jurisdiction over SEC matters.
       We thus conclude that the SEC judicial review scheme exhibits a general
intent to deprive district courts of subject matter jurisdiction, joining every
other circuit that has reached the issue. 

−69; 

−17; 

−82; 

−45;

−82; see also Bank of La., 

, 923 (5th Cir.
2019) (citing each of the other circuits’ cases with approval while analyzing the
FDIC judicial review provision).
                                           B.
       This general intent to displace district court jurisdiction does not end the
matter. We must still assess whether Congress intended to funnel the kind of
claim Cochran asserts through the statutory review scheme. Thunder 

–16. This is where Cochran pushes back on the dismissal of
her complaint, arguing that federal court review of her separation-of-powers
claim need not wait for agency adjudication. 1


       1  Because she presents the removal-power claim as her best case for district court
jurisdiction, we focus on it in addressing the Thunder Basin factors. It follows from our
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      We assume Congress did not intend a claim to go through a statutory
review scheme it created for an agency only when: (1) administrative
proceedings would “foreclose all meaningful judicial review”; (2) “the suit is
wholly collateral to a statute’s review provisions”; and (3) “the claim[] [is]
outside the agency’s expertise.” Free 

. These three
factors overlap, but each provides evidence of whether Congress intended
district courts or the SEC to get first crack at a claim. See 

(discussing overlap between the first and second factors). Under Bank of
Louisiana, Cochran cannot prevail under this inquiry.
      As we find Bank of Louisiana controlling, before marching through its
analysis of the three Thunder Basin factors we address Cochran’s attempts to
distinguish it. She first points out that the FDIC review provision provides an
even stronger case for displacement of general federal question jurisdiction
than does its SEC analogue. That is true; the FDIC statute says “no court shall
have jurisdiction to affect by injunction or otherwise the issuance or
enforcement of any notice or order under [12 U.S.C. §§ 1818, 1831o, or 1831p-
1], or to review, modify, suspend, terminate, or set aside any such notice or
order.” 12 U.S.C. § 1818(i)(1). Bank of Louisiana observes that this language
might explicitly preclude 

–23. But it then decides
to nevertheless resolve the case under the “implicit preclusion analysis,” which
includes the three Thunder Basin factors.

(“The parties and the
district court addressed the question presented under the implicit preclusion
analysis, and we therefore do the same.”). When conducting that analysis, last
year’s decision saw no relevant difference between the FDIC and SEC
statutory schemes; it repeatedly found support for its holding in SEC cases
from other circuits. See

(quoting 

−87;


conclusion that the district court cannot hear the removal-power claim that it also cannot
hear the due process claim which is even more procedurally intertwined with agency action.
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−51; 

−90; 

−14, 16−17, 19−22−23, 28−29; 

, 773). 2
       If the difference in statutes is not a basis for avoiding Bank of Louisiana,
Cochran contends that her separation-of-powers claim is. On her telling, the
bank suing the FDIC was asserting run-of-the-mill due process claims rather
than challenging the very authority of ALJs to act. But Bank of Louisiana also
involved a “separation-of-powers challenge to the 

. We
held that claim should be channeled through the postadjudication review
scheme even though it “does not directly implicate the agency’s expertise in the
way . . . other constitutional claims 

(citing 

; 

–51; 

).
       What was the Bank of Louisiana separation-of-powers claim? The same
one brought here: a challenge to the constitutional authority of the ALJ. We
noted the bank was asserting the same constitutional claims in the district
court lawsuit that it had asserted in the agency 

(citing Bank of La., FDIC-12-489b, FDIC-12-479k, 

, at *11-
13 (Nov. 15, 2016).      Among those was a claim that the FDIC “ALJ was not
properly appointed under the Appointments Clause and the ALJ’s tenure
protections violate separation of powers principles.” Bank of La., 

, at *13; see 

(recognizing that the agency rejected
the argument that the “ALJ was unconstitutionally appointed”). Indeed, we
noted that the appeal of the agency proceeding had to be remanded after the
Supreme Court decided Lucia—the principal case Cochran relies on for her
separation-of-powers claim.

Even if Bank of Louisiana’s analysis of the Thunder Basin factors were an
alternative holding, it would still bind us. United States v. Reyes-Contreras, 

,
179 n.19 (5th Cir. 2018) (en banc).
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       As it must, the dissent recognizes that Bank of Louisiana twice
“mentioned the structural claim.” Dissenting Op. at 2. But it then dismisses
the opinion as addressing the separation-of-powers claim only “in passing.”

how most would characterize devoting an entire paragraph to
deciding whether the bank’s challenge to the ALJ’s constitutional authority
warranted a different Thunder Basin outcome than the other claims. 3 Bank of

(disagreeing with the argument that the lack of agency
expertise involved in deciding a separation-of-powers claim means a district
court has jurisdiction). 4 Regardless of whether one thinks that discussion was
thorough enough, what cannot be denied is that Bank of Louisiana recognized
the separation-of-powers claim—a Lucia-based challenged to the ALJ’s very
authority to act—and resolved 

, 931. That is enough to bind
us. Stare decisis does not require verbosity.
       Cochran’s attempts to distinguish Bank of Louisiana thus flounder.
That means a prior panel has already done our Thunder Basin work for us.
We will nonetheless address each factor, summarizing the answer we provided
last year that stare decisis requires we follow today.




       3 Bank of Louisiana spends more time discussing the separation-of-powers claim than
this opinion spends specifically discussing the due process claim. See supra note 1. Does
that mean this decision is not precedent for the due process claim? Allowing judges to decide
whether to follow caselaw based on how thoroughly they think it decided an issue would
throw stare decisis into disarray.
       4 This paragraph rejecting different treatment for the separation-of-powers claim cited

other decisions holding that challenges to the constitutional status of ALJs must await
judicial review until the end of the enforcement 

(citing; 

; 

). Circuits have unanimously reached that result in SEC
cases raising the identical claim Cochran brings. 

; 

; 

−80; 

. Bank of Louisiana’s repeated
reliance on those decisions further belies the notion that it somehow gave insufficient
consideration to the separation-of-powers claim it expressly resolved.
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                                               1.
         Meaningful judicial review is available for Cochran’s constitutional
claims. That opportunity exists when a party can raise its claims to a court of
appeals following an adverse agency ruling.                   See 

(constitutional claims of bill of attainder and sex discrimination); Thunder

(due process challenge to Mine Act); Bank of 

–28 (due process and removal-power challenge to enforcement
action).      The best illustration of how postadjudication judicial review can
vindicate separation-of-powers claims is one of the key cases Cochran relies on:
Lucia v. SEC. The Supreme Court issued that landmark Appointments Clause
ruling in an appeal that followed agency adjudication. 

−50. Cochran’s claim can follow the same path. 5
         Free Enterprise does not counsel otherwise. 6 As is true for just about
every other argument Cochran makes, Bank of Louisiana already rejected this
one. 

–27.       As our colleagues explained last year, Free
Enterprise involved an accounting firm that regulators were investigating but
had not yet charged.

(discussing Free 

–91).



         5This factor cannot be looked at from the standpoint of someone who prevails before
the agency. But see Dissenting Op. at 3–4. If that were the inquiry, then this factor would
mean nothing. Every type of claim—be it separation of powers, due process, statutory, or
something else—will escape federal court review when the charged party wins the
enforcement action. This factor thus must be considered from the standpoint of a party who
loses before the agency. And because Congress provides postenforcement judicial review
when a party loses before the agency, no Thunder Basin case involving a pending
enforcement action has ever held that there will be “no meaningful judicial review.”
        6 Nor does Seila Law LLC v. CFPB, 

(2020). The successful removal-

power claim in this case was raised as a defense to a district court proceeding brought by the
agency to enforce a “civil investigative demand.”

see also 12 U.S.C. § 5562(e)(1)
(authorizing the CFPB to “file, in the district court of the United States,” a petition to enforce
a civil investigative demand). So like Free Enterprise, Seila Law did not involve an
enforcement action.
        7 It is also notable that Elgin, in holding that the party to an adjudication had to raise

its constitutional claim through the agency-specific review scheme, cited Free Enterprise only
once and just to lay out the three Thunder Basin factors. 

.
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                                 No. 19-10396

The SEC judicial review provision does not provide an avenue for a party to
challenge an investigation (as opposed to an actual enforcement proceeding).
15 U.S.C. §§ 78y, 7214(h)(2). Consequently, the firm would have had to “incur
a sanction” to get its constitutional claim before a court via the ordinary SEC
review scheme. Bank of 

(quoting Free 

). Having to “bet the farm . . . by taking the violative action” is not a
“‘meaningful’ avenue” for judicial review, so section 78y does not prevent the
target of an investigation from suing in district court. Free 

–91. But Cochran, like the bank that sued the FDIC, is “already embroiled
in an enforcement proceeding”; she does “not have to ‘bet the farm’ to challenge
agency action. The farm [is] already on the table.” Bank of 

.
       Bank of Louisiana’s distinction between an investigation that may never
reach an ALJ and a pending adjudication that already has is the same one
every court of appeals has made. See 

; 

; 

−84; 

−75; 

. Free Enterprise does not allow a party to an enforcement action to
leapfrog the statutory review scheme. The seemingly anomalous result that a
party subject to the less onerous agency action of investigation may run to
federal court while a party that has been charged must wait flows directly from
the principle that federal court jurisdiction is a matter of statute. Because
Congress set forth specific judicial review provisions for SEC proceedings,
allowing recourse to the general grant of federal jurisdiction when there is a
pending enforcement action would disrupt that scheme. See Thunder 

−09.       There is no scheme for judicial review of SEC
investigations, so falling back on general federal question jurisdiction does not
undermine any contrary congressional path.


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                                               2.
       The second question is whether Cochran’s claims are wholly collateral to
the SEC review provisions. As we noted in Bank of Louisiana, courts analyzing
whether a claim is wholly collateral to the administrative scheme have usually
asked whether the plaintiff’s claim arises as a result of the actions the agency
took during the challenged 

−29.          Cochran’s
challenge—that the official adjudicating her claim is unconstitutionally
insulated from executive control—is “inextricably intertwined with the conduct
of the very enforcement proceeding the statute grants the [SEC] the power to
institute and resolve as an initial matter.”

(quoting 

). In other circuits, that alone would be enough to conclude that her claim
is not wholly collateral to the statutory review scheme. 

−87; 

−88.
       If we were to adopt a different approach, also asking whether the
substance of Cochran’s claims is intertwined with the scheme, Cochran has a
stronger case.

separation-of-powers claim will not depend
on the record from the adjudication. But even if we were to become the first
circuit to conclude that this aspect of the wholly collateral question helped
Cochran on this factor, see

circuit courts have
suggested this approach though none have adopted it), 8 that would not
overcome the other two Thunder Basin factors to give the district court
jurisdiction in spite of the SEC-specific review provisions. See Free 

−91 (holding that district court had jurisdiction because all three
Thunder Basin factors favored that result); 

−75 (rejecting




       8 Bank of Louisiana declined to “decide whether focusing on substance over procedure
is the proper way to apply the wholly collateral 

. Because it is not does
not change the outcome here either, we likewise decline to decide the issue.
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                                     No. 19-10396

district court jurisdiction even after assuming the plaintiff’s claims were
“wholly collateral” to the scheme).
                                            3.
      The third Thunder Basin factor appears at first blush to also present a
close call. Purely legal questions that are not interpretations of the agency’s
statute or regulations—like issues of constitutional law—do not generally
benefit from agency expertise. See Thunder 

. But the
Supreme Court’s most recent instruction is that we should not just consider
whether the agency has expertise with respect to the particular claim the
plaintiff wants to resolve in district court. See 

; 

(explaining that Elgin “clarified . . . that an agency’s relative
level of insight into the merits of a constitutional question is not determinative”
on the agency expertise factor). The benefit of agency expertise should instead
be assessed by looking at the overall case, so this factor accounts for the
possibility that the agency’s resolution of other issues “may obviate the need to
address the constitutional challenge.” 

–23; see also FTC
v. Standard Oil Co. of Cal., 

, 244 n.11 (1980) (“[T]he possibility
that Socal’s challenge may be mooted in adjudication warrants the
requirement that Socal pursue adjudication, not shortcut it.”). 9
      The prospect that agency expertise could resolve the case against the
agency on a nonconstitutional ground is why Bank of Louisiana concluded that
this third factor did not support exempting even the separation-of-powers
claim from the exclusive review scheme Congress created. Bank of 

(citing 

; 

–51; 

). That is consistent with the principle that we should reach
difficult constitutional claims as a last, rather than first, resort. Ashwander v.


      9  In taking the position that we should create a split with five other circuits, the
dissent does not consider Elgin when addressing this factor.
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Tenn. Valley Auth., 

, 348 (1936) (Brandeis, J., concurring).
Allowing only separation-of-powers claims to evade the judicial review scheme
that Congress created would turn constitutional avoidance on its head. See

.
                                       C.
      Cochran and the dissent contend that allowing immediate judicial
resolution of her constitutional claims is the more expedient course. But the
efficiency of allowing separation-of-powers claims to short-circuit the SEC’s
statutory review scheme depends on the outcome of the various potential
proceedings. To be sure, requiring the adjudication to run its course before we
consider her constitutional claim could impose unnecessary costs on Cochran.
But the costs an individual may face when required to go through a full trial
before appealing legal issues—including consequences like imprisonment—
usually give way to larger systemic concerns about piecemeal review. See, e.g.,
Firestone Tire & Rubber Co. v. Risjord, 

, 374 (1981) (listing
reasons that “a party must ordinarily raise all claims of error in a single appeal
following final judgment on the merits”). For example, the general prohibition
on interlocutory appeals requires a party to litigate its whole case before
challenging a constitutionally deficient trial before us. See 

(“[W]hen a district court denies a federal criminal defendant’s pretrial
motion, that denial ordinarily is not immediately appealable.”).             And
abstention doctrines often prevent parties from seeking immediate vindication
of constitutional rights in federal court.    

; (citing
Younger v. Harris, 

(1971)).
      Rules against premature judicial intervention recognize that, in many
scenarios, piecemeal review will prove less efficient. See Cobbledick v. United
States, 

, 325 (1940) (explaining that the final judgment rule
“avoid[s] the obstruction of just claims that would come from permitting the

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                                      No. 19-10396

harassment and cost of a succession of separate appeals”). Cochran is viewing
efficiency from the lens of her constitutional arguments being winning ones.
But what if her claims—and more importantly the claims of other plaintiffs
that will follow if we open the gates to early district court adjudication of
separation-of-powers challenges to agency proceedings—fail on the merits?
Then, instead of the one court Congress authorized, three courts would have
devoted time to the agency matter: (1) the district court preadjudication; (2)
the court of appeals in its review of the preadjudication challenge, and (3)
another court of appeals panel in the traditional postadjudication review. Cf.
Standard 

(recognizing that “piecemeal review” prior to the
completion of adjudication “is inefficient and upon completion of the agency
process might prove to have been unnecessary”). The first two layers of judicial
review would have imposed costs on the parties and courts and delayed the
agency proceeding. Also problematic is that allowing judicial review both
before and after an adjudication would risk review of the same matter in
different circuits, a result that would be inefficient, anomalous, and potentially
mischievous. Cf. 

(recognizing that allowing district court
jurisdiction over challenges to agency proceedings creates the “potential for
inconsistent decisionmaking and duplicative judicial review”); see also 

. 10
       Another part of the efficiency calculus is what we have already noted: a
Cochran victory before the ALJ would eliminate the need for any judicial
review. And even under Cochran’s best scenario from an efficiency standpoint,



       10The dissent’s split verdict on the jurisdictional questions highlights the piecemeal
review that would result if separation-of-powers claims could jump in front of the statutory
scheme of agency adjudication followed by review in the court of appeals. Judge Haynes
would allow the removal claim to go forward in the district court, followed by an appeal.
Meanwhile, judicial review of Cochran’s due process claim would have to wait until the
agency rules.
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                                   No. 19-10396

in which she wins the district court suit, appellate review would follow. It is
not certain that district court litigation, followed by appellate review, would
produce a quicker resolution than agency adjudication followed by appellate
review. See 

(recognizing that a “double layer of judicial
review” of agency action can be “wasteful and irrational” (quoting United
States v. Fausto, 

, 445 (1988))).
         At the end of the day, however, which system of review is more efficient
is beside the point. Congress gets to make that policy decision. As Bank of
Louisiana and every other circuit to consider this question has held, even when
it comes to separation-of-powers claims Congress opted for court involvement
only after the end of the agency proceeding.
                                       ***
         The Thunder Basin analysis does not show that Congress exempted
Cochran’s claims from the common path for judicial review of agency action—
direct appeal to a court of appeals after the agency rules—that it adopted for
the SEC. Cochran may raise her removal-power claim before the ALJ and, if
she loses before the agency, in a court of appeals. She may even be able to get
her claim all the way to the Supreme Court as Lucia did. But Cochran cannot
circumvent the statutory review scheme by litigating it now in a federal trial
court.
         The judgment is AFFIRMED.           The stay of the SEC proceeding is
DISSOLVED.




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HAYNES, Circuit Judge, dissenting in part:
       I disagree with the majority opinion that Bank of Louisiana v. FDIC, 

(5th Cir. 2019), decided the issue as to the removal proceeding
challenge here, and I would conclude that Cochran’s claim on this point is not
the type over which Congress intended to limit judicial review. 1 Accordingly,
I respectfully dissent.
                  I.     Whether Bank of Louisiana Controls
       I do not think that Bank of Louisiana controls because it did not address
a structural claim. The opinion there did not squarely consider whether a
claim concerning the President’s removal power should be analyzed differently
than other types of constitutional claims. Instead, when it analyzed whether
the claims at issue were the type over which Congress intended to limit judicial
review, the court analyzed only the due process and equal protection claims.
See Bank of 

(stating that the Bank’s constitutional claims
“turned largely on why the agency brought charges”—i.e., the equal protection
claim—“and on how the hearing was conducted”—i.e., the due process claim).
The district court opinion similarly focused on those issues stating: “The
plaintiffs do not question the constitutionality or inherent authority of the
FDIC. The plaintiffs do not question the procedures of the FDIC. Instead, the
plaintiffs attack the motives underlying the FDIC’s decision to initiate the
proceedings.” Bank of La. v. FDIC, No. CV 16-13585, 

, at *6
(E.D. La. Jan 13, 2017).




       1 By contrast, I think the due process claim is intertwined and, therefore, I concur
that the district court lacked jurisdiction over it. Cochran asserts that she has been denied
due process because the SEC has failed to comply with the deadlines prescribed in applicable
statutes and regulations. As we held in Bank of Louisiana, claims alleging “irregularities”
during an enforcement proceeding are not wholly collateral, either procedurally or
substantively. 

–29.
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                                       No. 19-10396

       The majority opinion here, however, contends that Bank of Louisiana
addressed the separation-of-powers claim. Maj. Op. 7. In Bank of Louisiana,
this court mentioned the structural claim twice in passing: it first noted that
the ALJ’s opinion addressed, among other things, a separation-of-powers claim
and later stated that “the Bank’s separation-of-powers challenge to the ALJ
does not directly implicate the agency’s expertise.” Bank of 

, 930. But our court neither analyzed the separation-of-powers claim nor
discussed whether structural claims should be treated differently than other
constitutional claims. 2 Indeed, our court never considered whether the
structural nature of a claim might bear on the jurisdictional analysis.
Importantly, jurisdictional issues addressed sub silentio are generally not of
the nature that constitutes binding precedent. Pennhurst State Sch. & Hosp.
v. Halderman, 

, 119 (1984).                Because Bank of Louisiana was
addressing a different statute and failed to address a key point that is relevant
to this case, I conclude that it does not mandate the decision here.
       II.    Whether Congress Intended to Limit Judicial Review
       I also disagree with the majority opinion’s conclusion that Cochran’s
removal claim is the type over which Congress intended to limit jurisdiction.
To make this determination, courts look to the three Thunder Basin factors,
under which “we presume that Congress does not intend to limit jurisdiction if
‘a finding of preclusion could foreclose all meaningful judicial review’; if the
suit is ‘wholly collateral to a statute’s review provisions’; and if the claims are
‘outside the agency’s expertise.’” Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 

, 489 (2010) (quoting Thunder Basin Coal Co. v.
Reich, 

, 212–13 (1994)).




       2  It is not, as the majority opinion contends, a matter of verbosity v. succinctness. It
is a matter of whether the issue here was addressed.
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                                   No. 19-10396

   A.     Meaningful Judicial Review
        I conclude that precluding district court jurisdiction would likely
foreclose all meaningful judicial review. There are some differences between
this case and Free Enterprise Fund, since Cochran need not expose herself to
additional liability under the circumstances of this case. Nonetheless, she
must continue to participate in an adjudicative system that may well be
constitutionally illegitimate depending on the determination of the removal
claim. As a result, this case is not analogous to Thunder Basin or Elgin v.
Department of Treasury, 

(2012). In those cases, the parties to an
administrative proceeding challenged the constitutionality of a substantive
statute that gave rise to an administrative action; they did not challenge the
constitutional grounding of the agency overseeing the proceedings.             See
Thunder 

–204 (challenging the Mine Act and its
regulations but not the overseeing administrative agency’s structure); 

–7 (challenging statutes that require men to register for the draft
and make failure to do so a bar from federal employment). Here, Cochran does
not allege that the Exchange Act is unconstitutional; she instead asserts that
the ALJ who oversees the proceeding against her enjoys unconstitutional
removal protection.
        As a result, Cochran finds herself in a lose–lose situation in front of the
SEC. Of course, she loses if the SEC imposes a sanction. In that case, she
(now an aggrieved party) could challenge both the substantive securities
determination and the constitutional issues in federal court. See 15 U.S.C.
§ 78y. But if she wins in front of the SEC and no sanction is imposed, she will
lose the opportunity to have a court consider her now-moot removal challenge,
all while having been subject to a potentially unconstitutional proceeding. See
Tilton v. SEC, 

, 290 (2d Cir. 2016) (“[T]he Commission could rule



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                                 No. 19-10396

that the appellants did not violate the [securities laws], in which case the
constitutional question would become moot.”).
      I conclude that cases concerning the President’s removal powers (or
similar fundamental structural concerns) are different than those where a
party to an administrative proceeding argues that the statute they have
allegedly violated is unconstitutional. In more typical cases, winning on the
statutory claim “obviate[s] the need to address the constitutional challenge.”

–23; see also FTC v. Standard Oil Co., 

, 244
& n.11 (1980). But more is at stake here. A favorable outcome from Cochran’s
administrative proceeding would not obviate the need to address her removal
challenge; it would instead eliminate any opportunity for her challenge to be
heard. I do not think that the law requires Cochran to be subjected to an
adjudicative process in front of an officer who may not have constitutional
authority to decide her case, leaving her without recourse if she successfully
defends her case. See generally Seila Law LLC v. Consumer Fin. Prot. Bureau,

, 2197–2207 (2020) (discussing case law on the President’s
removal power and determining that the CFPB Director’s for-cause removal
protections violated the Constitution’s separation-of-powers doctrine). I do not,
at this point, conclude what the correct answer to this challenge is. Compare
Collins v. Mnuchin, 

, 588 (5th Cir. 2019) (en banc) (addressing
removal issue under HERA), cert. granted, 

(U.S. July 9,
2020) (mem.) (Nos. 19-422 & 19-563), with Humphrey’s Ex’r v. United States,

, 629 (1935) (upholding the Federal Trade Commission’s structure
and rejecting removal-power challenge). But I think the challenge here is
relevant. For these reasons, I would hold that precluding jurisdiction could
foreclose all meaningful judicial review of Cochran’s removal claim.




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                                  No. 19-10396

   B.     Collateral Nature of the Claim
        I next consider whether Cochran’s removal claim is wholly collateral to
the Exchange Act’s administrative review scheme. Case law does not make
clear whether courts should focus on the procedural relationship—whether the
claim is “inextricably intertwined” with the enforcement proceeding—or the
substantive     relationship—whether    Cochran’s    claim     is   “substantively
collateral” to the enforcement proceeding. Bank of 

. I
would conclude that the removal claim is collateral either way.
        Unlike in Bank of Louisiana, Cochran’s removal claim does not “allege
agency misdeeds during the enforcement proceedings themselves.”

structure undergirding the SEC’s administrative system, which
transcends any particular proceeding. For this reason, I would conclude that
her claim is not intertwined with the merits of the proceedings against her.
        Additionally, in Free Enterprise Fund, the Court determined that the
petitioners’ claims were collateral to the administrative proceedings because
the petitioners “object[ed] to the Board’s existence, not to any of its auditing

. Cochran’s removal claim similarly challenges the
ALJs’ existence within their current structure. She does not challenge the
securities laws underlying the administrative proceedings. For this reason,
her removal claim is substantively collateral as well.
   C.     Agency Expertise
        Finally, on whether Cochran’s removal claim is outside the SEC’s
competence and expertise, Free Enterprise Fund is again instructive. There,
the Court determined that the claims at issue were outside the Commission’s
competence and expertise, specifically because the claims did not call for
subject-matter expertise or “technical considerations of agency policy.” Free
Enter. 

(brackets and internal quotation marks omitted).
Here too, Cochran’s removal claim does not call for administrative expertise,

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                                  No. 19-10396

and she has not asked the court to delve into a fact-bound inquiry or into any
issues of securities law. See

the district court to
answer a constitutional question that courts are well positioned to address.
Thus, I would conclude that the claim here, like the one in Free Enterprise
Fund, is outside the SEC’s expertise.
      In sum, our court in Bank of Louisiana did not directly answer whether
structural claims should be considered different than other types of
constitutional claims, and I accordingly do not think that Bank of Louisiana
compels any particular outcome here with respect to the removal claim. After
analyzing Cochran’s claims under the Thunder Basin factors, I would conclude
that her structural removal claim is not the type over which Congress intended
to limit jurisdiction. For these reasons, I respectfully dissent.




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