Bank of Louisiana v. F.D.I.C. , 919 F.3d 916 ( 2019 )


Menu:
  •      Case: 17-30044   Document: 00514892004     Page: 1   Date Filed: 03/28/2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    March 28, 2019
    No. 17-30044
    Lyle W. Cayce
    Clerk
    BANK OF LOUISIANA; G. HARRISON SCOTT; SHARRY SCOTT; JOHNNY
    CROW,
    Plaintiffs - Appellants
    v.
    FEDERAL DEPOSIT INSURANCE CORPORATION,
    Defendant - Appellee
    Appeal from the United States District Court
    for the Eastern District of Louisiana
    Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
    STUART KYLE DUNCAN, Circuit Judge:
    The Federal Deposit Insurance Corporation (“FDIC”) brought two
    enforcement proceedings against the Bank of Louisiana and three of its
    directors (collectively, the “Bank”) for violating federal banking laws. At the
    close of each proceeding, the FDIC Board (“Board”) issued a final order
    penalizing the Bank. In turn, the Bank petitioned this court for review of both
    orders pursuant to 
    12 U.S.C. § 1818
    (h)(2), which vests “exclusive” jurisdiction
    to review final Board orders in the federal circuit courts. But the Bank also
    sued the FDIC in federal district court, alleging various constitutional
    violations arising out of the same enforcement proceedings. The sole issue on
    Case: 17-30044       Document: 00514892004         Page: 2     Date Filed: 03/28/2019
    No. 17-30044
    appeal is whether the district court correctly dismissed the Bank’s lawsuit for
    lack of subject matter jurisdiction. It did. We therefore AFFIRM.
    I.
    A.
    Among its other responsibilities, the FDIC is authorized to investigate
    and institute proceedings against federally-insured banks and savings
    associations to prevent “unsafe or unsound practice[s]” and to enforce federal
    banking laws and regulations. See 
    12 U.S.C. §§ 1811
    , 1818(b); see also Fed.
    Deposit Ins. Corp. v. Bank of Coushatta, 
    930 F.2d 1122
    , 1124–26 (5th Cir. 1991)
    (discussing FDIC’s “regulatory tools for dealing with troubled banks”).
    Exercising that authority, the FDIC may issue a notice of charges (
    12 U.S.C. § 1818
    (b)), hold hearings (id. § 1818(h)) 1, issue cease-and-desist orders (id.
    § 1818(b), (c)), and levy monetary penalties (id. § 1818(i)).
    This enforcement scheme includes “a comprehensive system for judicial
    review.” Rhoades v. Casey, 
    196 F.3d 592
    , 597 (5th Cir. 1999) (citing Bd. of
    Governors of Fed. Reserve Sys. of U.S. v. MCorp Fin., Inc., 
    502 U.S. 32
    , 37
    (1991)). One may obtain judicial review of a final agency order “exclusively” by
    “filing in the [relevant] court of appeals of the United States … a written
    petition praying that the order of the agency be modified, terminated, or set
    aside.” 
    12 U.S.C. § 1818
    (h)(1), (h)(2) 2; see also Rhoades, 196 F.3d at 597
    (explaining “a party may obtain review of [an] order issued by the banking
    agency by filing [a petition] in a Court of Appeals of the United States”) (citing
    1  Such hearings “shall be conducted in accordance with the provisions of chapter 5 of
    Title 5,” id., meaning the rules concerning administrative hearings. See, e.g., 
    5 U.S.C. § 556
    (providing procedural and evidentiary rules for administrative hearings).
    2 “Review of such proceedings shall be had as provided in chapter 7 of Title 5,” 
    id.,
    meaning the rules concerning review of agency proceedings. See, e.g., 
    5 U.S.C. § 706
    (providing authority to review agency action, including “interpret[ing] constitutional and
    statutory provisions”).
    2
    Case: 17-30044     Document: 00514892004     Page: 3   Date Filed: 03/28/2019
    No. 17-30044
    
    12 U.S.C. § 1818
    (h)(2)); Groos Nat. Bank v. Comptroller of the Currency, 
    573 F.2d 889
    , 894 (5th Cir. 1978) (explaining “[j]udicial review of final agency cease
    and desist orders is placed in the United States Circuit Courts of Appeal by 
    12 U.S.C. § 1818
    (h)”). Only in specific circumstances may federal district courts
    exercise jurisdiction over banking agency orders. For instance, upon issuance
    of a temporary cease-and-desist order, a bank “may apply to [a] United States
    district court … for an injunction setting aside, limiting, or suspending the
    enforcement, operation, or effectiveness of such order” pending completion of
    administrative proceedings. 
    12 U.S.C. § 1818
    (c)(2). And the agency itself may
    apply to a federal district court to enforce its orders. See 
    id.
     § 1818(i)(1).
    However, unless otherwise provided, “no court shall have jurisdiction to affect
    by injunction or otherwise the issuance or enforcement of any notice or order
    [under section 1818], or to review, modify, suspend, terminate, or set aside any
    such notice or order.” Id.
    We have described these procedures in section 1818 as “a detailed
    framework for regulatory enforcement and for orderly review of the various
    stages of enforcement.” Bd. of Governors of Fed. Reserve Sys. v. DLG Fin. Corp.,
    
    29 F.3d 993
    , 999 (5th Cir. 1994) (quoting Groos, 
    573 F.2d at 895
    ). And we have
    emphasized that “[section] 1818(i) in particular”—the jurisdictional bar
    referenced above—“evinces a clear intention that this regulatory process is not
    to be disturbed by untimely judicial intervention[.]” Id.; see also Rhoades, 196
    F.3d at 597 (noting “the Supreme Court [has] held that the plain, preclusive
    language of § 1818(i) ‘provides us with clear and convincing evidence that
    Congress intended to deny the District Court jurisdiction to review and enjoin’
    administrative proceedings”) (quoting MCorp, 
    502 U.S. at 44
    ).
    3
    Case: 17-30044     Document: 00514892004     Page: 4    Date Filed: 03/28/2019
    No. 17-30044
    B.
    The Bank is a New Orleans-based community bank founded in 1958 by
    G. Harrison Scott (“Scott”) and his late partner, James Comiskey. Scott has
    been chairman of the Bank’s Board of Directors since its founding and has
    served as the Bank’s president since 2005. In October and November 2013, the
    FDIC brought two enforcement actions against the Bank, alleging violations of
    various banking laws and regulations. While those proceedings were pending
    at different stages, in August 2016 the Bank and three of its directors—Scott,
    Sharry Scott, and Johnny Grow—sued the FDIC in federal district court,
    alleging constitutional violations arising out of the enforcement actions. We
    recount the intertwined history of these actions in some detail.
    The first enforcement proceeding began on October 22, 2013. The FDIC
    alleged that the three directors had caused the Bank to violate federal
    regulations over a two-year period, specifically by approving illegal loans in
    violation of Regulation O, 
    12 C.F.R. § 215.4
    , which limits the credit a bank can
    extend to its executives, directors, and principal shareholders. The directors
    were also charged with permitting Bank insiders to overdraw their accounts
    while avoiding overdraft fees. See generally Scott v. FDIC, 684 F. App’x 391
    (5th Cir. 2017) (discussing charges against the Bank). Following briefing and
    an evidentiary hearing, the presiding administrative law judge (“ALJ”) issued
    a decision on July 2, 2014, recommending a $10,000 civil penalty for each
    director in addition to costs and fees. On November 18, 2014, the Board
    adopted the ALJ’s recommendation in a final order. On December 22, 2014, the
    directors petitioned our court for review. After staying the case pending
    resolution of the second enforcement proceeding, we issued an opinion on April
    4, 2017, denying the directors’ petition. See 
    id. at 397
    .
    4
    Case: 17-30044         Document: 00514892004    Page: 5   Date Filed: 03/28/2019
    No. 17-30044
    The second enforcement proceeding began on November 1, 2013. The
    Bank was charged with operating in an unsafe and unsound manner and with
    violating provisions of the Bank Secrecy Act, 3 the Electronic Funds Transfer
    Act, 4 the Real Estate Settlement Procedures Act, 5 the Truth in Lending Act, 6
    the Home Mortgage Disclosure Act, 7 and the National Flood Insurance
    Program. 8 The same ALJ from the first proceeding conducted a six-day trial
    and, on May 17, 2016, recommended that the FDIC impose a $500,000 civil
    penalty and order the Bank to cease and desist its violations. The Board
    adopted the ALJ’s recommendation and issued a final order on November 15,
    2016. See Bank of La., FDIC-12-489b, FDIC-12-479k, 
    2016 WL 9050999
     (Nov.
    15, 2016). As relevant here, the Board concluded that the ALJ’s “lengthy,
    detailed, and well-reasoned opinion” had “fully addressed” and properly
    rejected the Bank’s arguments that the “FDIC’s examiners were motivated by
    age discrimination against Scott,” that the Bank was “denied due process” by
    certain ALJ rulings concerning document admissibility and witness
    sequestration, and that the ALJ was unconstitutionally appointed. 
    Id. at *2
    ,
    *11–13. On December 19, 2016, the Bank petitioned our court for review. We
    stayed proceedings pending the Supreme Court’s decision in Lucia v. SEC,
    which subsequently held that Securities and Exchange Commission ALJs are
    “Officers of the United States” under the federal Constitution’s Appointments
    Clause. See 
    138 S. Ct. 2044
    , 2049 (2018); U.S. CONST. art. II, § 2, cl. 2. On
    3   
    31 U.S.C. § 5311
     et seq.
    4   
    15 U.S.C. § 1693
     et seq.
    5   
    12 U.S.C. § 2601
     et seq.
    6   
    15 U.S.C. § 1601
     et seq.
    7   
    12 U.S.C. § 2801
     et seq.
    8   
    42 U.S.C. § 4001
     et seq.
    5
    Case: 17-30044       Document: 00514892004         Page: 6    Date Filed: 03/28/2019
    No. 17-30044
    September 5, 2018, we granted the FDIC’s motion to remand the case to the
    agency in light of Lucia.
    While the second proceeding was pending before the Board (and while
    the first proceeding was pending on appeal before us), the Bank filed the
    instant lawsuit in federal district court on August 4, 2016, claiming the FDIC
    committed constitutional violations during the enforcement proceedings.
    Specifically, the Bank alleged the FDIC denied it equal protection by targeting
    Scott, the Bank’s president, due to his age. 9 The Bank further alleged the ALJ
    violated due process by preventing it from proffering certain evidence and by
    preventing Scott from talking with his counsel at certain points during the
    proceedings. These were the same constitutional claims considered and
    rejected by the ALJ and the Board during the second enforcement proceeding.
    See Bank of La., 
    2016 WL 9050999
     at *11–13.
    The Bank originally sought a permanent injunction to prevent the Board
    from issuing a final order in the second proceeding; a declaratory judgment
    that the FDIC violated its constitutional and statutory rights during both
    enforcement proceedings; damages; sanctions; and attorney’s fees. After the
    Board issued its second order on November 15, 2016, the Bank abandoned its
    requests for injunctive relief and damages, leaving only its request for
    declaratory judgment.
    9 For example, the Bank alleges that on January 29, 2013, an FDIC employee stated
    in an email to another employee, “[T]his place will never change until the old man dies.” But
    see Bank of La., 
    2016 WL 9050999
     at *11–13 (noting that “the Bank has not identified any
    evidence of purported age discrimination that, if credited, likely would change the outcome
    of this proceeding” and concluding that “[w]hile this reference might be viewed in context as
    insensitive or unkind, it cannot fairly be read to demonstrate that FDIC staff harbored age-
    based animus toward [the Bank]”).
    6
    Case: 17-30044     Document: 00514892004      Page: 7   Date Filed: 03/28/2019
    No. 17-30044
    The FDIC moved to dismiss the Bank’s lawsuit for lack of subject matter
    jurisdiction, asserting that the statutory review scheme in 
    12 U.S.C. § 1818
    precludes district court jurisdiction. The district court granted the FDIC’s
    motion and dismissed the Bank’s lawsuit without prejudice, emphasizing that
    the Bank could assert its claims in this court on direct review of the agency’s
    final order. The Bank appeals.
    II.
    We review a dismissal for lack of subject matter jurisdiction de novo,
    accepting all well-pleaded facts as true and viewing those facts in the light
    most favorable to the plaintiff. Griener v. United States, 
    900 F.3d 700
    , 703 (5th
    Cir. 2018). “As a court of limited jurisdiction, a federal court must affirmatively
    ascertain subject-matter jurisdiction before adjudicating a suit. A district court
    should dismiss where it appears certain that the plaintiff cannot prove a
    plausible set of facts that establish subject-matter jurisdiction.” Venable v. La.
    Workers’ Comp. Corp., 
    740 F.3d 937
    , 941 (5th Cir. 2014) (cleaned up). A court
    may find that plausible set of facts by considering “(1) the complaint alone; (2)
    the complaint supplemented by undisputed facts evidenced in the record; or (3)
    the complaint supplemented by undisputed facts plus the court’s resolution of
    disputed facts.” Spotts v. United States, 
    613 F.3d 559
    , 565–66 (5th Cir. 2010)
    (citation omitted). The party asserting jurisdiction bears the burden of proof.
    Griener, 900 F.3d at 703.
    III.
    “Within constitutional bounds, Congress decides what cases the federal
    courts have jurisdiction to consider,” including “when, and under what
    conditions, federal courts can hear them.” Bowles v. Russell, 
    551 U.S. 205
    , 212–
    13 (2007); see also, e.g., La. Real Estate Appraisers Bd. v. Fed. Trade Comm’n,
    
    917 F.3d 389
    , 394 (5th Cir. 2019) (federal courts “cannot act without authority
    7
    Case: 17-30044      Document: 00514892004     Page: 8   Date Filed: 03/28/2019
    No. 17-30044
    from Congress or the Constitution”) (citing Kokkonen v. Guardian Life Ins. Co.
    of Am., 
    511 U.S. 375
    , 378 (1994)). As a general matter, federal district courts
    have subject matter jurisdiction over all civil cases arising under the
    Constitution and federal law. U.S. CONST. art. III, § 2; 
    28 U.S.C. §§ 1331
    , 2201.
    But sometimes Congress leapfrogs district courts by channeling claims
    through administrative review and directly to federal appellate courts. See
    Elgin v. Dep’t of Treasury, 
    567 U.S. 1
    , 9 (2012) (explaining Congress may
    “channel[ ] judicial review of a constitutional claim” through “a statutory
    scheme of administrative review followed by judicial review in a federal
    appellate court[,] [thereby] preclud[ing] district court jurisdiction”) (citing
    Thunder Basin Coal Co. v. Reich, 
    510 U.S. 200
    , 206 (1994)). In that event,
    federal district courts lack subject matter jurisdiction to hear those claims. See,
    e.g., Arbaugh v. Y&H Corp., 
    546 U.S. 500
    , 515 n.11 (2006) (explaining
    “Congress has exercised its prerogative to restrict the subject-matter
    jurisdiction of federal district courts based on a wide variety of factors”);
    Dresser v. Meba Med. & Benefits Plan, 
    628 F.3d 705
    , 708 (5th Cir. 2010)
    (district court properly dismissed lawsuit as “an attempt to circumvent the
    channeled path for judicial review” when review scheme required appeal from
    agency “to a federal circuit court”). The question in this case is whether
    Congress established such a scheme in 
    12 U.S.C. § 1818
    , which is the
    regulatory process deployed by the FDIC in its enforcement proceedings
    against the Bank. If it did, then the district court lacked subject matter
    jurisdiction over the Bank’s separate lawsuit challenging the constitutionality
    of those proceedings.
    Congress may preclude district court jurisdiction either explicitly or
    implicitly. To discern an explicit preclusion, we examine whether “the text …
    expressly limit[s] the jurisdiction that other statutes confer on district courts,”
    8
    Case: 17-30044       Document: 00514892004   Page: 9   Date Filed: 03/28/2019
    No. 17-30044
    such as 
    28 U.S.C. § 1331
    . Free Enter. Fund v. Pub. Co. Accounting Oversight
    Bd., 
    561 U.S. 477
    , 489 (2010); see also, e.g., Elgin, 
    567 U.S. at 25
     (Alito, J.,
    dissenting) (explaining that, “[w]hen dealing with an express preclusion clause
    … we determine the scope of preclusion simply by interpreting the words
    Congress has chosen”) (citing Shalala v. Ill. Council on Long Term Care, Inc.,
    
    529 U.S. 1
    , 5 (2000)).
    To discern an implicit preclusion, we engage in a more complex analysis.
    We first ask whether it is “fairly discernible” from the “text, structure, and
    purpose” of the statutory scheme that Congress intended to preclude district
    court jurisdiction. Elgin, 
    567 U.S. at 10
     (quoting Thunder Basin, 
    510 U.S. at 207
    ). We then ask whether the “claims at issue ‘are of the type Congress
    intended to be reviewed within th[e] statutory structure.’” Free Enter. Fund,
    561 U.S. at 489 (quoting Thunder Basin, 
    510 U.S. at 212
    ). To help answer that
    second question, the Supreme Court has identified three “factors,” sometimes
    referred to as the “Thunder Basin factors.” See Thunder Basin, 
    510 U.S. at
    212–13. Specifically, we inquire (1) whether precluding district court
    jurisdiction “could foreclose all meaningful judicial review”; (2) whether the
    Bank’s “suit is wholly collateral to a statute’s review provisions”; and
    (3) whether its claims are “outside the agency’s expertise.” Elgin, 
    567 U.S. at 15
     (quoting Free Enter. Fund, 561 U.S. at 489; Thunder Basin, 
    510 U.S. at
    212–
    13). Several of our sister circuits have used this framework to analyze an
    administrative review scheme in SEC enforcement proceedings. See, e.g.,
    Jarkesy v. SEC, 
    803 F.3d 9
    , 12 (D.C. Cir. 2015) (applying this “framework” to
    determine “whether Congress intended exclusivity when it established the
    statutory scheme” for reviewing SEC enforcement orders in 15 U.S.C.
    § 78y(a)(1) and similar statutes); see also Bennett v. SEC, 
    844 F.3d 174
    , 181
    (4th Cir. 2016); Hill v. SEC, 
    825 F.3d 1236
    , 1241 (11th Cir. 2016); Tilton v.
    9
    Case: 17-30044    Document: 00514892004      Page: 10    Date Filed: 03/28/2019
    No. 17-30044
    SEC, 
    824 F.3d 276
    , 281 (2d Cir. 2016); Bebo v. SEC, 
    799 F.3d 765
    , 768–69 (7th
    Cir. 2015). We find that framework helpful in confronting the analogous
    question presented here.
    A.
    The parties and the district court addressed the question presented
    under the implicit preclusion analysis, and we therefore do the same.
    Consequently, we first ask whether it is “fairly discernible” from the text,
    structure, and purpose of 
    12 U.S.C. § 1818
     that Congress intended to preclude
    district court jurisdiction over the Bank’s claims against the FDIC. Agreeing
    with the FDIC, the district court concluded that its jurisdiction was precluded
    by the “clear text” of § 1818(i)(1). That subsection provides that, unless
    otherwise allowed, “no court shall have jurisdiction to affect by injunction or
    otherwise the issuance or enforcement or any notice or order under [§ 1818], or
    to review, modify, suspect, terminate, or set aside any such notice or order.” Id.
    On appeal, the Bank makes no argument with respect to this first step
    of the analysis. In fact, the Bank “concedes that it is fairly discernible from the
    face of … § 1818 that Congress intended to limit the jurisdiction of district
    courts over certain claims seeking review of FDIC Board actions.” The Bank
    instead reserves its arguments for the three Thunder Basin factors, which, it
    claims, show Congress did not intend to preclude its claims. See infra III.B.
    The Bank wisely concedes that the section 1818 scheme displays
    Congress’ intent to preclude district court jurisdiction over claims against the
    FDIC arising out of enforcement proceedings. Our precedent virtually compels
    that concession. Even setting aside the specific jurisdictional bar in section
    1818(i)(2), we have described the section 1818 scheme as a “comprehensive
    system for judicial review” of agency orders, Rhoades, 196 F.3d at 597, and a
    “detailed framework … for orderly review of the various stages of enforcement,”
    10
    Case: 17-30044     Document: 00514892004      Page: 11    Date Filed: 03/28/2019
    No. 17-30044
    DLG Financial, 
    29 F.3d at 999
     (quoting Groos, 
    573 F.2d at 895
    ); see supra I.A.
    Following an administrative hearing, the Board reviews the ALJ’s
    recommendation de novo and issues a final order, which is routed for
    “exclusive” review directly to a federal appellate court. See 
    12 U.S.C. § 1818
    (h)(1)–(2). District court jurisdiction is prescribed only in specific
    circumstances not present here. See 
    id.
     § 1818(a)(8)(D), (c)(2), (d), (f), (i)(1),
    (i)(2)(I)(i), (n). This calibrated structure is, for present purposes, materially the
    same as review structures the Supreme Court and sister circuits have found
    expressive of Congress’ intent to preclude district court jurisdiction. See, e.g.,
    Bennett, 844 F.3d at 181–82; Hill, 825 F.3d at 1242–45; Tilton, 824 F.3d at
    281–82; Jarkesy, 803 F.3d at 16–17.
    Furthermore, if the general section 1818 scheme were not enough to
    show Congress’ preclusive intent, the jurisdictional bar in section 1818(i)(1)
    ices the cake. Both the Supreme Court and our court have “held that the plain,
    preclusive language of § 1818(i) ‘provides … clear and convincing evidence that
    Congress intended to deny the District Court jurisdiction to review and enjoin’
    administrative proceedings.” Rhoades, 196 F.3d at 597 (quoting MCorp, 
    502 U.S. at 44
    ). We have added that this section “evinces a clear intention that [the
    section 1818] regulatory process is not to be disturbed by untimely judicial
    intervention[.]” DLG Fin. Corp., 
    29 F.3d at 999
    . And we have held that the
    section’s specific prohibition against affecting agency orders “by injunction or
    otherwise” encompasses declaratory relief, which is what the Bank seeks. See
    Groos, 
    573 F.2d at 895
    . Thus, as the FDIC correctly argues, the plain text of
    section 1818(i)(1) makes this case easier than the sister-circuit cases, which
    interpreted an SEC enforcement scheme lacking a similarly explicit
    jurisdictional bar. Cf., e.g., Bennett, 844 F.3d at 177; Jarkesy, 803 F.3d at 13.
    11
    Case: 17-30044        Document: 00514892004          Page: 12      Date Filed: 03/28/2019
    No. 17-30044
    Indeed, so robust is the section 1818(i)(1) bar that, on appeal, the FDIC
    invites us to stop there and decline to analyze the three Thunder Basin factors.
    It is a tempting offer. After all, the Thunder Basin factors are a judge-made
    test for discerning whether we should presume Congress has left district court
    jurisdiction unimpaired. See, e.g., Elgin, 
    567 U.S. at 15
     (the Thunder Basin
    factors invoke “our ‘presum[ption] that Congress does not intend to limit
    [district court] jurisdiction’”) (quoting Free Enter. Fund, 561 U.S. at 489).
    Because the plain terms of section 1818(i) bar jurisdiction here, the FDIC
    sensibly urges that “no court-created presumption can change that result.” 10
    Despite the attractiveness of this argument, we think it prudent to cycle
    through the Thunder Basin factors, as did the district court. Those factors
    reinforce the conclusion that the review scheme precludes district court
    jurisdiction over the Bank’s claims.
    B.
    We proceed to the three Thunder Basin factors, which help determine
    whether the “claims at issue ‘are of the type Congress intended to be reviewed
    within th[e] statutory structure.’” Free Enter. Fund, 561 U.S. at 489 (quoting
    Thunder Basin, 
    510 U.S. at 212
    ). Under those factors, “we presume that
    Congress does not intend to limit [district court] jurisdiction [1] if ‘a finding of
    10  Although unclear, the FDIC may effectively be arguing that section 1818(i)
    “explicitly” limits the jurisdiction conferred on federal district courts by statutes like 
    28 U.S.C. § 1331
    . See Free Enter. Fund, 561 U.S. at 489 (explaining Congress may “expressly
    limit the jurisdiction that other statutes confer on district courts”). There is some authority
    for that proposition. See Abercrombie v. Office of Comptroller of Currency, 
    833 F.2d 672
    , 677
    (7th Cir. 1987) (holding that “§ 1818(i)(1) … expressly and unequivocally deprived the district
    courts of jurisdiction over [civil money penalty] assessments by the Comptroller under
    § 1818(i)(2)(i)”). We note, however, that section 1818(i) does not reference other jurisdictional
    statutes explicitly. Cf., e.g., Shalala, 
    529 U.S. at 5
     (addressing clause providing that “no
    action” on any Medicare claim “shall be brought under section 1331 … of title 28”). In any
    event, we need not resolve that issue because of our holding that the statutory scheme
    withdraws district jurisdiction implicitly.
    12
    Case: 17-30044     Document: 00514892004      Page: 13   Date Filed: 03/28/2019
    No. 17-30044
    preclusion could foreclose all meaningful judicial review’; [2] if the suit is
    ‘wholly collateral to a statute’s review provisions’; and [3] if the claims are
    ‘outside the agency’s expertise.’” Free Enter. Fund, 561 U.S. at 489 (quoting
    Thunder Basin, 
    510 U.S. at
    212–13) (brackets added). In the Bank’s view, each
    factor shows Congress did not intend to limit district court jurisdiction over its
    claims against the FDIC. We consider each factor in turn.
    1.
    The Bank argues that the section 1818 scheme fails to provide
    “meaningful judicial review” because the ALJ allowed only “limited discovery”
    that “did not afford [it] adequate opportunity to uncover the remainder of the
    evidence bearing on” its age discrimination and due process claims. The district
    court correctly rejected this argument.
    The Supreme Court has held that Congress provides meaningful judicial
    review by authorizing review of challenges to a final agency order by a federal
    circuit court. See Elgin, 
    567 U.S. at 17
     (concluding the Civil Service Reform
    Act afforded meaningful review by “provid[ing] review in the Federal Circuit,
    an Article III court fully competent to adjudicate petitioners’ [constitutional]
    claims”); Thunder Basin, 
    510 U.S. at 215
     (concluding “petitioner’s statutory
    and constitutional claims” regarding the Federal Mine Safety and Health
    Amendments Act “can be meaningfully addressed in the Court of Appeals”); see
    also Bennett, 844 F.3d at 186 (concluding petitioner “can obtain meaningful
    judicial review of her constitutional claims under [the Securities Exchange Act]
    by proceeding in the administrative forum and raising her claims in a federal
    court of appeals in due course”); Tilton, 824 F.3d at 286–87 (concluding that
    “appellants will have access to meaningful judicial review of their
    Appointments Clause claim through administrative channels” which include
    review in a circuit court); Jarkesy, 803 F.3d at 20 (observing that “the SEC
    13
    Case: 17-30044     Document: 00514892004      Page: 14   Date Filed: 03/28/2019
    No. 17-30044
    scheme presents an entirely meaningful avenue of relief” given that “a court of
    appeals is available to hear … challenges” to the Commission’s final order)
    (internal quotation marks deleted). Indeed, there can be meaningful review in
    the circuit court even if the agency itself lacks authority to decide the
    constitutional question presented. See, e.g., Elgin, 
    567 U.S. at 17
     (concluding
    court of appeals can provide meaningful review of constitutional challenge
    “‘[e]ven if’ the administrative body could not decide the constitutionality of a
    federal law”) (quoting Thunder Basin, 
    510 U.S. at 215
    ); see also Jarkesy, 803
    F.3d at 19 (concluding Commission’s lack of authority to address constitutional
    questions “is of no dispositive significance” because petitioner’s constitutional
    claims “can eventually reach an Article III court fully competent to adjudicate
    them”) (cleaned up).
    The statutory scheme at issue in this case authorizes review of final
    Board orders in a federal circuit court. See 
    12 U.S.C. § 1818
    (h)(2); Rhoades,
    196 F.3d at 597. Based on that alone, the scheme would provide meaningful
    judicial review of the Bank’s claims that the enforcement proceedings were
    tainted by constitutional violations. See, e.g., Bebo, 799 F.3d at 767 (holding
    meaningful judicial review not foreclosed because, “[i]f aggrieved by the SEC’s
    final decision, [petitioner] will be able to raise her constitutional claims in this
    circuit or in the D.C. Circuit”). But there is more: The Bank in fact raised its
    constitutional claims during the enforcement proceedings, and both the ALJ
    and the Board addressed them. As the Board observed, the ALJ wrote a
    “lengthy, detailed, and well-reasoned opinion” that “fully addressed” the
    Bank’s age discrimination, due process, and separation-of-powers claims. 
    2016 WL 9050999
     at *2, 11. The Board in turn reviewed, and approved, the ALJ’s
    recommendations. For instance, the Board rejected the Bank’s age
    discrimination claim as based on “speculation” that “cannot surmount the
    14
    Case: 17-30044     Document: 00514892004     Page: 15   Date Filed: 03/28/2019
    No. 17-30044
    ample evidence in the record showing the legitimate regulatory concerns that
    prompted each of [the FDIC’s] actions.” 
    Id. at *11
    ; see also 
    id.
     at *12–13
    (reviewing and agreeing with ALJ’s rejection of the Bank’s due process claims);
    
    id. at *13
     (reviewing and agreeing with ALJ’s rejection of the Bank’s
    Appointments Clause challenge to ALJ authority). The Bank then sought our
    review of the Board’s order—and actually obtained relief when we granted the
    FDIC’s motion to remand the case in light of the Supreme Court’s Lucia
    decision. See Bank of La. v. FDIC, No. 16-60837 (5th Cir. Sept. 5, 2018) (order).
    If this is not “meaningful judicial review” of the Bank’s constitutional claims,
    we do not know what would qualify.
    The Bank’s situation is therefore unlike the one in Free Enterprise Fund,
    where a plaintiff would have had to “bet the farm” to obtain judicial review of
    his claim. In that case, the Supreme Court concluded that the Sarbanes-Oxley
    Act did not provide meaningful judicial review of a challenge to the
    constitutionality of the pertinent agency board. 561 U.S. at 489–91. Under the
    applicable review scheme, the petitioner would have had to voluntarily “incur
    a sanction” at the board level to raise its constitutional claim in the circuit
    court, risking “severe punishment should its challenge fail.” Id. at 490. The
    Supreme Court “d[id] not consider this a ‘meaningful’ avenue” for a
    constitutional challenge, id. at 491 (quoting Thunder Basin, 
    510 U.S. at 212
    ),
    because plaintiffs typically need not “‘bet the farm … by taking the violative
    action’” before challenging a law’s validity. Free Enter. Fund, 561 U.S. at 490
    (quoting MedImmune, Inc. v. Genentech, Inc., 
    549 U.S. 118
    , 129 (2007); see also
    McNary v. Haitian Refugee Ctr., Inc., 
    498 U.S. 479
    , 496–97 (1991) (finding no
    meaningful review for aliens’ denial of special worker status when circuit
    review could be obtained “only if [aliens] voluntarily surrender[ed] themselves
    for deportation”). We have nothing like that here. The Bank was “already
    15
    Case: 17-30044        Document: 00514892004          Page: 16      Date Filed: 03/28/2019
    No. 17-30044
    embroiled in an enforcement proceeding” and so “need not take any additional
    risks” to assert its constitutional claims. Bennett, 844 F.3d at 186. Unlike in
    Free Enterprise Fund, then, the Bank did not have to “bet the farm” to
    challenge agency action. The farm was already on the table.
    The only argument the Bank seriously presses on appeal is that the ALJ
    “barred [it] from developing the factual record necessary” to support its
    constitutional claims. This is hyperbole. Elsewhere in its briefs, the Bank
    concedes that the ALJ allowed it “limited discovery” and complains only that
    “[t]he ALJ denied some of the Bank’s requests for discovery” (emphasis added).
    This is hardly grounds to accuse the agency of denying “meaningful review” of
    the Bank’s claims: Discovery requests may just as likely be rejected by district
    courts as by agencies. See Jarkesy, 803 F.3d at 22 (observing that the
    petitioner’s “[discovery] requests might well have met the same result had he
    attempted them in the district court”).
    In any event, numerous courts, including the Supreme Court, have
    consistently rejected similar arguments based on agency fact-finding
    capacities. In Elgin, for example, the Supreme Court held that the pertinent
    review scheme “fully accommodate[d] [the claimant’s] potential need to
    establish facts relevant to his constitutional challenge,” by empowering the
    agency to take evidence and find facts. 
    567 U.S. at 19
    . Several sister circuits
    have reached the same conclusion. 11
    11 See, e.g., Hill, 825 F.3d at 1249–50 (holding the tools available in the administrative
    process, such as the ability to call witnesses, “do not leave [a plaintiff] without a meaningful
    avenue to develop the record”); Jarkesy, 803 F.3d at 21 (explaining that the administrative
    process does not “categorically preclude [petitioner] from accessing the evidence he believes
    he needs”); Bebo, 799 F.3d at 773 (concluding an agency’s “fact-finding capacities, even if
    more limited than a federal district court’s, are sufficient for meaningful judicial review”).
    16
    Case: 17-30044       Document: 00514892004        Page: 17     Date Filed: 03/28/2019
    No. 17-30044
    We have no reason to doubt that the review scheme here similarly
    provides adequate tools for developing the necessary record for the Bank’s
    claims. As the Bank correctly concedes on appeal, the FDIC “is equipped to do
    fact-finding.” The pertinent statute expressly incorporates the procedural and
    evidentiary accoutrements typical of administrative proceedings—including
    the power to issue subpoenas, take evidence, and order depositions. 
    12 U.S.C. § 1818
    (h); see also 
    5 U.S.C. § 556
    (c)(2)–(4) (authorizing agency hearing officer
    to “issue subp[o]enas authorized by law,” to “rule on offers of proof and receive
    relevant evidence,” and to “take depositions or have depositions taken when
    the ends of justice would be served”). Finally, even assuming the Bank is
    correct and the ALJ wrongly curtailed discovery our court could remand to the
    agency for further factfinding, which underscores the point that the scheme
    provides meaningful judicial review of the Bank’s claims. See Jarkesy, 803 F.3d
    at 22 (observing that, “should the [administrative record … prove inadequate,”
    the court of appeals “always has the option of remanding to the agency for
    further factual development”) (internal quotation marks and citations
    omitted). 12
    In sum, a finding that the review scheme precludes district court
    jurisdiction would not “‘foreclose all meaningful judicial review’” of the Bank’s
    constitutional claims. Free Enter. Fund, 461 U.S. at 489 (quoting Thunder
    Basin, 
    510 U.S. at 489
    ). This factor therefore points toward finding that the
    district court lacked subject matter jurisdiction.
    12 The Bank also suggests there is an inherent “conflict” in the process (essentially
    because the FDIC is investigating its own practices) that “hamstrung” its ability to develop
    its claims. The Bank points to nothing in the record even hinting that any “conflict” in the
    administrative process lay behind the ALJ’s discovery rulings. Nor does the Bank cite any
    authority for the proposition that a supposed “conflict” forecloses meaningful judicial
    review—especially when the scheme provides a right of review by a federal circuit court.
    17
    Case: 17-30044     Document: 00514892004     Page: 18   Date Filed: 03/28/2019
    No. 17-30044
    2.
    Turning to the second Thunder Basin factor, the Bank argues that its
    claims are “wholly collateral” to the administrative scheme because they did
    not “challenge … the merits of the FDIC’s final order in either proceeding,” but
    “[i]nstead … challenged the unconstitutional animus behind the [FDIC]
    investigation and the attendant denial of due-process rights.” The district court
    correctly rejected this argument.
    The   Bank’s    constitutional   claims   arise   directly   from   alleged
    irregularities in the agency enforcement proceedings. And the Bank raised
    those same claims as defenses in the second enforcement proceeding. See Bank
    of La., 
    2016 WL 9050999
     at *11–13. The Bank’s claims are thus “inextricably
    intertwined with the conduct of the very enforcement proceeding the statute
    grants the [FDIC] the power to institute and resolve as an initial matter.”
    Jarkesy, 803 F.3d at 23 (cleaned up). In other words, those claims “do not arise
    ‘outside’ the [FDIC] administrative enforcement scheme—they arise from
    actions the [FDIC] took in the course of that scheme.” Id. We therefore cannot
    consider the Bank’s claims “‘wholly collateral’ to the [FDIC enforcement]
    scheme.” Elgin, 
    567 U.S. at 21
    ; see also Bennett, 844 F.3d at 187 (claim not
    collateral to agency proceedings when the “claim arises out of the enforcement
    proceeding and provides an affirmative defense”); Tilton, 824 F.3d at 288
    (explaining claim was not “wholly collateral” to the administrative scheme
    when the “claim arose directly from [the agency] enforcement action and serves
    as an affirmative defense within the proceeding”).
    The Bank counters that, in applying this factor, we should instead focus
    on the substantive relationship between its claims and the agency proceedings,
    and thus find that the Bank’s claims are “substantively collateral to the
    banking-law issues the FDIC was examining.” It is true that a few circuits have
    18
    Case: 17-30044     Document: 00514892004     Page: 19   Date Filed: 03/28/2019
    No. 17-30044
    suggested this as a possible approach to the wholly collateral factor. For
    example, while not adopting it, the Second Circuit has observed that one
    “competing approach[ ]” is to ask whether the claim is “substantively
    intertwined with the merits dispute that the proceeding was commenced to
    resolve.” Tilton, 824 F.3d at 287; see also Hill, 825 F.3d at 1251 (noting that
    one “way[ ] to understand this factor” is to “compare the merits of the …
    constitutional claims to the substance of the [administrative] charges”); Bebo,
    799 F.3d at 773 (a possible approach is to “focus on the relationship between
    the merits of the constitutional claim and the factual allegations against the
    plaintiff in the administrative proceeding”).
    We need not decide whether focusing on substance over procedure is the
    proper way to apply the wholly collateral factor. Even assuming we should look
    only to substance, we would still find the Bank’s claims are not wholly
    collateral to the agency proceedings. As we have seen, the Bank’s age
    discrimination and due process claims allege agency misdeeds during the
    enforcement proceedings themselves. Thus, we would still find those claims
    “substantively intertwined with the merits dispute that the proceeding was
    commenced to resolve.” Tilton, 824 F.3d at 287; see also, e.g., Jarkesy, 803 F.3d
    at 14 (concluding plaintiffs’ “various allegations of violations of their
    constitutional rights … are 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”). Indeed, in rejecting those claims, the Board
    examined the merits of the underlying agency action, underscoring the point
    that the Bank’s claims are intertwined both substantively and procedurally
    with the agency proceedings. See Bank of La., 
    2016 WL 9050999
     at *11–15.
    In sum, the Bank has not shown that its “suit is wholly collateral to [the]
    statute’s review provisions.” Elgin, 
    567 U.S. at 15
     (quoting Free Enter. Fund,
    19
    Case: 17-30044    Document: 00514892004       Page: 20   Date Filed: 03/28/2019
    No. 17-30044
    
    561 U.S. 477
    , 489). Therefore, this factor also points toward finding that the
    district court lacked subject matter jurisdiction.
    3.
    Turning to the third and final Thunder Basin factor, the Bank argues
    that its constitutional claims are “beyond the special expertise of the FDIC.”
    Once again, the district court correctly rejected this argument.
    Elgin is instructive here. In that case, the Supreme Court explained that
    courts should not “overlook the many threshold questions that may accompany
    a constitutional claim and to which the [agency] can apply its expertise.” Elgin,
    
    567 U.S. at 22
    . They should instead consider whether the agency’s “expertise
    can otherwise be brought to bear on [claims] that challenge the
    constitutionality of a statute.” 
    Id. at 23
    ; see also Tilton, 824 F.3d at 289 (noting
    Elgin “adopted a broader conception of agency expertise in the jurisdictional
    context”); Jarkesy, 803 F.3d at 28–29 (explaining “Elgin … clarified ... that an
    agency’s relative level of insight into the merits of a constitutional question is
    not determinative”). For example, in Elgin the agency deployed its employment
    law expertise to resolve “threshold questions” before considering the
    constitutionality of the Selective Service Act. 
    567 U.S. at 23
    ; see also Tilton,
    824 F.3d at 290 (discussing Elgin’s recognition of “those potential applications
    of agency expertise to other dimensions of the administrative proceeding”).
    Following Elgin’s lead, our sister circuits have identified various ways
    an agency might deploy its expertise on constitutional questions. The agency
    might “resolv[e] accompanying statutory claims that it routinely considers, and
    which might fully dispose of the case in the appellants’ favor.” Tilton, 824 F.3d
    at 290 (internal quotation marks omitted). Or an “agency could moot the need
    to resolve [a] challenge to [a statute’s] constitutionality (or any other
    constitutional question) by finding that he did not commit the … violations of
    20
    Case: 17-30044       Document: 00514892004        Page: 21     Date Filed: 03/28/2019
    No. 17-30044
    which he stands accused.” Jarkesy, 803 F.3d at 29. Additionally, an agency’s
    interpretation of the law “in the course of the proceeding … might answer or
    shed light on” a constitutional challenge. Id. As the D.C. Circuit observed in
    Jarkesy, “there are precious few cases involving interpretation of statutes
    authorizing agency action in which our review is not aided by the agency’s
    statutory construction.” Id. at 29 (quoting Mitchell v. Christopher, 
    996 F.2d 375
    , 379 (D.C. Cir. 1993) (internal quotation marks omitted)).
    Following Elgin and our sister circuits, we conclude that the Bank’s
    constitutional claims did not fall outside the agency’s expertise. To begin with,
    the FDIC could have mooted the Bank’s constitutional claims by finding the
    Bank innocent of the statutory violations it was accused of committing. Elgin,
    
    567 U.S. at 23
    ; Jarkesy, 803 F.3d at 29. At a minimum, the agency’s banking
    expertise could have shed light on the Bank’s constitutional claims, which
    turned largely on why the agency brought charges and on how the hearing was
    conducted. Elgin, 
    567 U.S. at
    22–23; Tilton, 824 F.3d at 29. As it happens, that
    is just what occurred. The Board rejected the Bank’s theory that the FDIC’s
    investigation was motivated by age-based animus by reviewing “the ample
    evidence in the record showing the legitimate regulatory concerns that
    prompted each of [the FDIC’s] actions.” Bank of La., 
    2016 WL 9050999
     at *11
    (emphasis added). Similarly, the Board rejected the Bank’s due process claims
    by reviewing the ALJ’s rulings in light of the substantive issues addressed at
    the hearing. 13 It is thus evident that the agency actually brought its expertise
    to bear in resolving the bulk of the Bank’s constitutional claims.
    13  See 
    id. at *12
     (examining whether certain exhibits excluded by the ALJ were
    “crucial to [the Bank’s] case or would have changed the outcome,” and noting that “[n]one of
    these exhibits undermine the ALJ’s conclusion that a preponderance of the evidence shows
    multiple violations of law and supports the examiners’ less-than-satisfactory ratings in
    multiple areas”); 
    id.
     (concluding the ALJ’s “sequestration rule” did not violate due process
    21
    Case: 17-30044      Document: 00514892004         Page: 22    Date Filed: 03/28/2019
    No. 17-30044
    To be sure, the Bank’s separation-of-powers challenge to the ALJ does
    not directly implicate the agency’s expertise in the way the Bank’s other
    constitutional claims do. But this is not dispositive under Elgin. As the D.C.
    Circuit correctly explained, in Elgin the Supreme Court “clarified … that an
    agency’s relative level of insight into the merits of a constitutional question is
    not determinative” for purposes of the agency expertise factor. Jarkesy, 803
    F.3d at 28; see also, e.g., Hill, 825 F.3d at 1250–51 (because the agency’s
    decision on statutory claims could moot constitutional claims, “[w]e are
    satisfied that the [agency’s] expertise could be brought to bear in this way, even
    if its expertise could offer no added benefit to the resolution of the
    constitutional claims themselves”); Tilton, 824 F.3d at 289 (emphasizing “that
    an agency may bring its expertise to bear indirectly, by resolving
    accompanying, potentially dispositive issues in the same proceeding”).
    In sum, the agency expertise factor does not show that “Congress
    intended to exempt [the Bank’s constitutional] claims from exclusive review
    before [the FDIC] and the [courts of appeal].” Elgin, 
    567 U.S. at 23
    . Therefore,
    this factor also points toward finding that the district court lacked subject
    matter jurisdiction over the Bank’s claims.
    IV.
    In sum, the district court correctly dismissed the Bank’s lawsuit without
    prejudice for lack of subject matter jurisdiction. We therefore AFFIRM the
    district court’s judgment. 14
    “[b]ecause the ALJ made clear that the sequestration rule applied, only to a discussion of
    Scott’s and other witnesses’ testimony while Scott’s testimony was in progress” and did not
    “prevent Scott from discussing strategic matters with the Bank’s counsel”).
    14  The Bank’s motion to supplement the record excerpts, which was carried with this
    appeal, is DENIED.
    22