Jarkesy v. Securities & Exchange Commission , 803 F.3d 9 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2015 Decided September 29, 2015
No. 14-5196
GEORGE R. JARKESY, JR. AND PATRIOT28, LLC,
APPELLANTS
v.
SECURITIES AND EXCHANGE COMMISSION,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:14-cv-00114)
S. Michael McColloch argued the cause for appellants.
With him on the briefs were Karen L. Cook and Mark B.
Bierbower.
Dominick V. Freda, Senior Litigation Counsel, Securities
and Exchange Commission, argued the cause for appellee.
With him on the brief were Richard M. Humes, Associate
General Counsel, Samuel M. Forstein, Assistant General
Counsel, and Sarah E. Hancur, Senior Counsel.
Before: KAVANAUGH and SRINIVASAN, Circuit Judges,
and RANDOLPH, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge SRINIVASAN.
SRINIVASAN, Circuit Judge: The Securities and
Exchange Commission brought an administrative proceeding
against George Jarkesy, Jr., charging him with securities
fraud. That proceeding remains ongoing. In the meantime,
Jarkesy filed this action in federal district court seeking the
administrative proceeding’s termination. He argues that the
proceeding’s initiation and conduct infringe his constitutional
rights in several ways. The district court dismissed his action
for lack of subject-matter jurisdiction. The court concluded
that Congress, by establishing a detailed statutory scheme
providing for an administrative proceeding before the
Commission plus the prospect of judicial review in a court of
appeals, implicitly precluded concurrent district-court
jurisdiction over challenges like Jarkesy’s.
We agree with the district court and affirm its judgment.
In Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), the
Supreme Court set forth a framework for determining when a
statutory scheme of administrative and judicial review
forecloses parallel district-court jurisdiction. The ultimate
question is whether Congress intended exclusivity when it
established the statutory scheme. Applying the considerations
outlined in Thunder Basin and its progeny, we find the answer
here is yes. The result is that Jarkesy, instead of obtaining
judicial review of his challenges to the Commission’s
administrative proceeding now, can secure judicial review in
a court of appeals when (and if) the proceeding culminates in
a resolution against him.
3
I.
A.
The SEC generally has two routes by which to enforce
the federal securities laws in a civil proceeding. The agency
can bring a civil action against the alleged violator in federal
district court, or it can initiate an administrative enforcement
proceeding. See, e.g., 15 U.S.C. §§ 78u(d), 78u-2, 78u-3. At
one time, the remedies the SEC could seek against
respondents in administrative proceedings were relatively
limited. In 2010, however, Congress enacted the Dodd-Frank
Wall Street Reform and Consumer Protection Act, which
expanded the remedies available to the SEC in administrative
proceedings. See Pub. L. No. 111-203, § 929P, 124 Stat.
1376, 1862-65. The practical effect, generally speaking, was
to “mak[e] the SEC’s authority in administrative penalty
proceedings coextensive with its authority to seek penalties in
Federal court.” H.R. Rep. No. 111-687, at 78 (2010).
Nothing in Dodd-Frank or the securities laws explicitly
constrains the SEC’s discretion in choosing between a court
action and an administrative proceeding when both are
available. See J.A. 236.
The SEC’s Enforcement Division prosecutes violations in
both forums. In administrative proceedings, the SEC’s Rules
of Practice govern. 17 C.F.R. §§ 201.100 et seq. The
Commission presides over a proceeding, or, if the
Commission so decides, an administrative law judge hears the
case initially. Id. § 201.110. If the latter, the ALJ holds a
hearing and then renders an initial decision, which the
respondent may appeal by filing a petition for review with the
full Commission. Id. §§ 201.360(a)(1), 201.410(a). The
Commission reviews ALJ decisions de novo, and it alone
4
possesses the authority to issue a final order. Id.
§§ 201.411(a), 201.360(d)(2).
Under the securities laws, final Commission orders can
be reviewed in the courts of appeals. The Securities
Exchange Act, for instance, provides that “[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 . . . a
written petition requesting that the order be modified or set
aside in whole or in part.” 15 U.S.C. § 78y(a)(1). The
Securities Act, the Investment Advisers Act, and the
Investment Company Act all contain similarly worded
provisions. See id. § 77i(a) (Securities Act); id. § 80b-13(a)
(Advisers Act); id. § 80a-42(a) (Company Act).
B.
Patriot28, LLC (formerly known as John Thomas Capital
Management) is an unregistered investment adviser and
general partner of two hedge funds. George Jarkesy, Jr., is
the manager of Patriot28. On March 22, 2013, the SEC
issued an Order Instituting Administrative and Cease-and-
Desist Proceedings against Jarkesy and Patriot28 along with
two other respondents. The SEC alleged that they engaged in
fraudulent conduct in connection with the offer, purchase, and
sale of securities, and charged them with violations of the
Exchange Act, the Securities Act, the Advisers Act, and the
Company Act. Jarkesy’s and Patriot28’s two co-
respondents—John Thomas Financial, Inc. (a broker-dealer)
and Anastasios Belesis (the founder and CEO of John Thomas
Financial)—were alleged to have aided and abetted Jarkesy’s
violations of the securities laws. The SEC sought
5
disgorgement of fees, civil penalties, a cease-and-desist order,
and securities-industry and officer-and-director bars against
Jarkesy.
The matter was set for a hearing to take place before an
ALJ. In the fall of 2013, John Thomas Financial and Belesis
settled with the Commission, and on December 5, 2013, the
Commission issued an order approving the settlement. That
order included factual and legal findings concerning John
Thomas Financial’s and Belesis’s misconduct. Those
findings, in turn, discussed the fraudulent conduct of the
“Manager” and the “Adviser” of the hedge funds—references
to Jarkesy and Patriot28. The Commission’s order noted,
however, that its findings had been “made pursuant to
Respondents’ Offer of Settlement and are not binding on any
other person or entity in this or any other proceeding.” John
Thomas Capital Mgmt. Grp., Exchange Act Release No.
70,989, 2013 WL 6327500, at *1 n.1 (Dec. 5, 2013).
In response, Jarkesy and Patriot28 took two actions.
First, in a petition for interlocutory review filed with the
Commission, they sought to disqualify the Commissioners
and obtain a dismissal of the administrative proceeding on the
ground that the Commission had “conclusively prejudiced the
case” against them. John Thomas Capital Mgmt. Grp.,
Securities Act Release No. 9519, 2014 WL 294551, at *1
(Jan. 28, 2014). Second, on January 29, 2014, days before the
hearing before the ALJ was set to begin on February 3, they
filed an action in the United States District Court for the
District of Columbia. The action seeks injunctive and
declaratory relief “to prevent the SEC from proceeding with
an administrative proceeding” that, in their view, “has
violated, and will continue to violate, [their] fundamental
constitutional rights.” Compl. ¶ 1 (J.A. 8).
6
Jarkesy and Patriot28’s district-court complaint included
several claims. Because the nature of those arguments bears
on the jurisdictional analysis in some measure, we relay the
complaint’s contents with precision.
First, Jarkesy and Patriot28 alleged a Fifth Amendment
Due Process Clause violation based on the Commission’s
supposed prejudgment of their charges, arguing that the
administrative proceeding should be nullified as a result.
Compl. ¶¶ 17-24 (J.A. 13-14). Second, they alleged that the
Commission’s decision to place them in an administrative
proceeding violated their rights under the Equal Protection
Clause by denying them the “fundamental right to [a] jury
trial.” Id. ¶¶ 25-30 (J.A. 14-15). Explaining that the SEC
“chooses whether to bring cases in [administrative
proceedings] or in federal court on a case-by-case basis,
subject to no standard,” they alleged that “parties charged by
the SEC have their fundamental Seventh Amendment right to
jury trial preserved, or denied, based on the arbitrary,
capricious or malicious decision of the Commission.” Id.
¶¶ 25, 27 (J.A. 14-15). Third, they alleged another equal
protection argument under a “class-of-one” theory, asserting
that, while the Commission had taken similarly situated
individuals to court, the Commission’s decision to charge
Jarkesy and Patriot28 in an agency proceeding was motivated
by animus. Id. ¶¶ 31-38 (J.A. 16-17). Fourth, they alleged
improper ex parte communications between the SEC
Enforcement Division and the Commissioners regarding their
co-respondents’ settlement, in violation of the Administrative
Procedure Act. Id. ¶¶ 39-46 (J.A. 17-19). Fifth and finally,
they alleged another due process violation based on the
Commission’s ostensible failure to comply with its Brady
obligations under the SEC’s Rules of Practice. Id. ¶¶ 47-59
(J.A. 19-22).
7
The district court denied the plaintiffs’ request for a
temporary restraining order that would have barred the SEC
from proceeding with the scheduled hearing. Jarkesy v. SEC,
48 F. Supp. 3d 32, 34, 36 (D.D.C. 2014). The court
subsequently dismissed the complaint, finding that the
“statutory and regulatory regime under which the SEC’s
Enforcement Division brought the instant matter against the
plaintiffs preclude[d]” the court from hearing their claims. Id.
at 37. “Although the plaintiffs raise various allegations of
violations of their constitutional rights,” the court explained,
“those claims 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.” Id. at
38. The court thus found that Jarkesy and Patriot28 had to
wait to raise their arguments about the proceeding’s
deficiencies “before a Court of Appeals should the ALJ and
the Commission issue orders adverse to them.” Id.
Meanwhile, the SEC’s administrative proceeding moved
forward. The ALJ conducted hearings in February and March
of 2014 and issued her initial decision in October. In addition
to finding that Jarkesy and Patriot28 had violated the
securities laws, the ALJ rejected their prejudgment, equal
protection, ex parte communications, and Brady arguments.
See John Thomas Capital Mgmt. Grp., Initial Decision
Release No. 693, 2014 WL 5304908, at *1-6 (ALJ Oct. 17,
2014). Jarkesy and Patriot28 filed a petition for review of the
ALJ’s decision with the Commission. They also filed a
motion asking the Commission to stay further proceedings
pending a decision from our court in their appeal of the
district court’s dismissal.
On February 20, 2015, the Commission issued an order
denying the stay. As of the date of this opinion, the
Commission has yet to rule on the petition.
8
II.
We review de novo the district court’s determination that
it lacked authority over Jarkesy and Patriot28’s claims (who,
for ease of reference, we will refer to collectively as Jarkesy
from this point forward). See Fisher-Cal Indus., Inc. v.
United States, 747 F.3d 899, 902 (D.C. Cir. 2014). We agree
with the district court.
Federal courts possess only the power authorized by the
Constitution and by statute. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). “Within constitutional
bounds, Congress decides what cases the federal courts have
jurisdiction to consider.” Bowles v. Russell, 551 U.S. 205,
212 (2007). Litigants generally may seek review of agency
action in district court under any applicable jurisdictional
grant.
If a special statutory review scheme exists, however, “it
is ordinarily supposed that Congress intended that procedure
to be the exclusive means of obtaining judicial review in those
cases to which it applies.” City of Rochester v. Bond, 603
F.2d 927, 931 (D.C. Cir. 1979). The question in this appeal is
whether the district court has jurisdiction over all, or any, of
Jarkesy’s claims, or whether Congress has implicitly
precluded Jarkesy’s district-court suit by channeling his
challenges through the securities laws’ scheme of
administrative adjudication and judicial review in a court of
appeals. The decision we review is one of a growing number
of decisions to address the same question, including a recent
decision by the Seventh Circuit. See Bebo v. SEC, No. 15-
1511, 2015 WL 4998489 (7th Cir. Aug. 24, 2015). The
Seventh Circuit found no district-court jurisdiction, id. at *10,
 9
and we reach the same conclusion for many of the same
reasons. ∗
Our analysis proceeds in accordance with the two-part
approach set forth in Thunder Basin Coal Co. v. Reich. 510
U.S. 200 (1994). Under Thunder Basin’s framework, courts
determine that Congress intended that a litigant proceed
exclusively through a statutory scheme of administrative and
judicial review when (i) such intent is “fairly discernible in
the statutory scheme,” and (ii) the litigant’s claims are “of the
type Congress intended to be reviewed within [the] statutory
structure.” Id. at 207, 212; see Elgin v. Dep’t of Treasury,
132 S. Ct. 2126, 2132-33 (2012); Free Enterprise Fund v.
∗
Various district courts have reached divergent conclusions.
See Tilton v. SEC, No. 15-CV-2472, 2015 WL 4006165, at *1
(S.D.N.Y. June 30, 2015) (no jurisdiction over Appointments
Clause and removal power claims); Spring Hill Capital Partners,
LLC v. SEC, No. 15-CV-4542 (S.D.N.Y. June 26, 2015) (bench
ruling) (no jurisdiction over Appointments Clause claim) (transcript
attached to Appellee 28j Letter (filed July 8, 2015)); Hill v. SEC,
No. 1:15-CV-1801, 2015 WL 4307088, at *4, 9 (N.D. Ga. June 8,
2015) (jurisdiction over non-delegation, Seventh Amendment,
Appointments Clause, and removal power claims); Duka v. SEC,
No. 15 Civ. 357, 2015 WL 1943245, at *3-4, *7 (S.D.N.Y. Apr. 15,
2015) (jurisdiction over presidential removal power claim); Bebo v.
SEC, No. 15-C-3, 2015 WL 905349, at *2 (E.D. Wis. Mar. 3, 2015)
(no jurisdiction over due process, equal protection, Seventh
Amendment, and removal power claims), aff’d, No. 15-1511, 2015
WL 4998489 (7th Cir. Aug. 24, 2015); Chau v. SEC, 72 F. Supp.
3d 417, 430, 436 (S.D.N.Y. 2014) (no jurisdiction over due process
and equal protection claims); Altman v. SEC, 768 F. Supp. 2d 554,
562 (S.D.N.Y. 2011) (no jurisdiction over due process, equal
protection, and privacy claims), aff’d, 687 F.3d 44 (2d Cir. 2012)
(per curiam); Gupta v. SEC, 796 F. Supp. 2d 503, 513-14 (S.D.N.Y.
2011) (jurisdiction over equal protection claim, no jurisdiction over
retroactivity claim).
10
Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489
(2010). Here, both considerations support the conclusion that
Congress intended the statutory scheme to be exclusive.
A.
We can fairly discern Congress’s intent to preclude suits
by respondents in SEC administrative proceedings in the
mine-run of cases. “Generally, when Congress creates
procedures designed to permit agency expertise to be brought
to bear on particular problems, those procedures are to be
exclusive.” Free Enterprise, 561 U.S. at 489 (internal
quotation marks omitted). And the securities laws’ scheme of
Commission adjudication and ensuing judicial review
resembles in material respects the enforcement scheme the
Supreme Court found exclusive in Thunder Basin.
There, the Court considered a coal company’s statutory
and constitutional challenges to an anticipated enforcement
proceeding under the Federal Mine Safety and Health
Amendments Act of 1977. Under the Mine Act scheme, the
Mine Safety and Health Administration investigates and
sanctions violations of the Act and its regulations. Thunder
Basin, 510 U.S. at 202-04 & n.5. The sanctioned party can
bring a challenge before an ALJ and then appeal the ALJ’s
determination to the Federal Mine Safety and Health Review
Commission, who reviews it de novo and issues a final order
imposing penalties. Id. at 207-08. The party can then seek
review of the order in a court of appeals, “whose jurisdiction
‘shall be exclusive and its judgment and decree shall be final’
except for possible Supreme Court review.” Id. at 208
(quoting the Mine Act, 30 U.S.C. § 816(a)(1)). Finding that
the Mine Act thus established a “detailed structure for
reviewing violations,” the Supreme Court held that the
11
scheme implicitly barred district-court jurisdiction over the
coal company’s pre-enforcement suit. Id. at 207, 216.
The securities laws contain an equally comprehensive
structure for the adjudication of securities violations in
administrative proceedings. Aside from the fact that the
Commission, rather than the sanctioned entity, initiates the
agency review process, the proceedings follow the same
progression. The schemes also contain nearly identical
judicial-review provisions.
The Exchange Act, for example, also provides that, once
the Commission proceeding culminates in a final order, an
“aggrieved” respondent may seek review in our court or the
circuit where he resides or has his principal place of business.
15 U.S.C. § 78y(a)(1); compare id., with 30 U.S.C.
§ 816(a)(1) (the Mine Act). The reviewing court, like the
reviewing court in the Mine Act scheme, exercises
“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); compare id., with 30 U.S.C. § 816(a)(1). The
court may consider only “objection[s] to an order or rule of
the Commission” that had been “urged before the
Commission” unless “there was reasonable ground for failure
to do so.” 15 U.S.C. § 78y(c)(1); compare id., with 30 U.S.C.
§ 816(a)(1). The Exchange Act also specifies the standard of
review for the Commission’s factual findings, see 15 U.S.C.
§ 78y(a)(4); compare id., with 30 U.S.C. § 816(a)(1); the
process for seeking a stay of the Commission’s order, see 15
U.S.C. § 78y(c)(2); compare id., with 30 U.S.C. § 816(a)(2),
(c); and the process for the court to remand to the agency to
“adduce additional evidence,” 15 U.S.C. § 78y(a)(5);
compare id., with 30 U.S.C. § 816(a)(1).
12
“Given the painstaking detail with which” Congress set
forth the rules governing the court of appeals’ review of
Commission action, “it is fairly discernible that Congress
intended to deny [aggrieved respondents] an additional
avenue of review in district court.” Elgin, 132 S. Ct. at 2134.
In our view, moreover, it is of no moment that the securities
laws provide for the possibility of civil enforcement both
before the Commission and in federal district court. One
court has thought otherwise, reasoning that “[t]here can be no
‘fairly discernible’ Congressional intent to limit jurisdiction
away from district courts when the text of the statute provides
the district court as a viable forum” for SEC enforcement
actions. Hill, 2015 WL 4307088, at *6. Congress, though,
gave the SEC the option to pursue violations in district court.
Congress did not thereby necessarily enable respondents in
administrative proceedings to collaterally attack those
proceedings in court. In other words, Congress granted the
choice of forum to the Commission, and that authority could
be for naught if respondents like Jarkesy could countermand
the Commission’s choice by filing a court action.
B.
Jarkesy does not seriously dispute that Congress meant to
channel most challenges to the Commission’s administrative
proceedings through the statutory review scheme. He instead
argues that the particular challenges he raised in his district-
court suit are not “of the type Congress intended to be
reviewed within this statutory structure.” Thunder Basin, 510
U.S. at 212. We disagree.
“To unsettle [the] presumption of initial administrative
review—made apparent by the structure of the organic
statute—requires a strong countervailing rationale.” E.
Bridge, LLC v. Chao, 320 F.3d 84, 89 (1st Cir. 2003). The
13
second step of the Thunder Basin framework asks whether
Jarkesy’s claims present such a rationale. And the Supreme
Court has told us what to look for: we are to “presume” that
Congress wanted the district court to remain open to a
litigant’s claims “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 Enterprise, 561 U.S. at 489-90
(quoting Thunder Basin, 510 U.S. at 212-13). We do not
understand those considerations to form three distinct inputs
into a strict mathematical formula. Rather, the considerations
are general guideposts useful for channeling the inquiry into
whether the particular claims at issue fall outside an
overarching congressional design. Here, each of the
guideposts points in the same direction.
1.
We first address Jarkesy’s argument that his challenges
cannot receive “meaningful review” within the securities
laws’ scheme. Jarkesy offers several reasons why that is
allegedly the case. Among them, he contends that the
Commission lacks the authority to rule on certain of his
claims, which he frames as facial attacks on Dodd-Frank’s
amendments to the securities laws based on the Seventh
Amendment and the non-delegation doctrine.
The government maintains that Jarkesy never raised those
claims before the district court. The district court evidently
agreed. Indeed, the court found that it lacked jurisdiction in
part because it did not understand Jarkesy to be raising a
facial challenge. See Jarkesy, 48 F. Supp. 3d at 39.
We, too, reject Jarkesy’s assertion that that he lodged a
facial attack on Dodd-Frank based on the Seventh
Amendment—i.e., a challenge to Congress’s enabling the
14
Commission to obtain enhanced penalties in an administrative
proceeding. In his complaint, Jarkesy referenced the Seventh
Amendment only in developing the fundamental-rights angle
of one of his equal protection theories. See Compl. ¶¶ 26-30
(J.A. 15). And in another filing below, Jarkesy expressly
disclaimed making a facial Seventh Amendment challenge to
the availability of more severe penalties in the agency setting,
stating: “To be clear, Plaintiffs do not here complain that
Congress had no right to separate them from their Seventh
Amendment rights by designating securities fraud
enforcement actions for adjudication in an administrative
forum.” See J.A. 75-76 (memorandum in support of motion
for a temporary restraining order).
Whether Jarkesy properly asserted a facial challenge
based on the non-delegation doctrine presents a closer
question. His complaint hints at such a challenge in passing.
See Compl. ¶ 2 (J.A. 8-9) (“The SEC . . . has usurped a
legislative prerogative, violating the constitutional separation
of powers.”). He put forth a non-delegation argument in his
memorandum in support of his motion for a temporary
restraining order. See J.A. 78-82. Jarkesy also described his
separation-of-powers claim as attacking “the facial validity of
a statutory scheme” in his briefing responding to the district
court’s notice to show cause. J.A. 263-64. That said, we
appreciate the government’s point that if Jarkesy really meant
to assert a facial challenge, he would have done well to at
least mention Dodd-Frank or cite the relevant statutes in his
complaint. If the district court misunderstood the nature of
Jarkesy’s intended claim, its confusion was understandable.
In any case, assuming arguendo that Jarkesy adequately
put forth a non-delegation challenge, he is wrong to assign it
talismanic significance. He seems to assume that whenever a
respondent in an administrative proceeding attacks a statute
15
on its face, a district court has jurisdiction to hear the
challenge, whereas the agency does not. That is mistaken. To
be sure, the Supreme Court has noted that “adjudication of the
constitutionality of congressional enactments has generally
been thought beyond the jurisdiction of administrative
agencies.” Thunder Basin, 510 U.S. at 215 (brackets
omitted). But the Thunder Basin Court did not find that
consideration to be determinative of whether the company’s
constitutional claims could receive meaningful review within
the Mine Act scheme. Id. And the Court’s recent decision in
Elgin v. Department of Treasury reiterated that, so long as a
court can eventually pass upon the challenge, limits on an
agency’s own ability to make definitive pronouncements
about a statute’s constitutionality do not preclude requiring
the challenge to go through the administrative route. 132 S.
Ct. at 2136-37.
Elgin concerned the Civil Service Reform Act (CSRA),
which sets forth a comprehensive structure for reviewing
personnel actions taken against federal employees. Under the
CSRA, federal employees who suffer adverse employment
actions may seek a hearing before the Merit Systems
Protection Board (MSPB), whose decision is then reviewed
by the Federal Circuit. Id. at 2130-31. The plaintiffs in Elgin
were male employees who had been discharged because they
failed to register for the military draft. Id. at 2131. While one
employee (Elgin) sought a hearing under the CSRA, he did
not pursue the proceedings past the ALJ’s initial ruling
against him. All the employees filed suit in federal district
court instead. Id. They claimed that the Military Selective
Service Act and the corresponding statute barring them from
federal employment were facially unconstitutional under the
Equal Protection and the Bill of Attainder Clauses. Id.
16
In the employees’ view, Congress could not have
intended for them to pursue their facial constitutional
challenges through the CSRA route, in part because the ALJ
who initially ruled on Elgin’s claims agreed that the MSPB
lacked authority to determine the constitutionality of those
statutes. Id. at 2131, 2136. Though the Supreme Court
reserved judgment on whether the ALJ was correct, the Court
made clear that it did not matter: even if the MSPB could not
declare the statutes unconstitutional, the Federal Circuit
could. Id. at 2136-37. Because the employees’ challenges
“could be meaningfully addressed in the Court of Appeals
that Congress had authorized to conduct judicial review,” the
Elgin Court was confident that Congress intended them to go
through the agency proceedings first. Id. at 2137 (internal
quotation marks omitted).
So too, here. Because Jarkesy’s constitutional claims,
including his non-delegation challenge to Dodd-Frank, can
eventually reach “an Article III court fully competent to
adjudicate” them, it is of no dispositive significance whether
the Commission has the authority to rule on them in the first
instance during the agency proceedings. Id. at 2137; see
Bebo, 2015 WL 4998489, at *6-7. Indeed, courts of appeals
often consider facial constitutional claims—including
separation-of-powers claims—in reviewing final orders from
the Commission. See Am. Power & Light Co. v. SEC, 329
U.S. 90, 96-108 (1946) (addressing Commerce Clause, non-
delegation, and due process challenges); Blinder, Robinson &
Co., Inc. v. SEC, 837 F.2d 1099, 1103-04 (D.C. Cir. 1988)
(addressing removal powers challenge); Sorrell v. SEC, 679
F.2d 1323, 1325-26 (9th Cir. 1982) (addressing challenge that
Congress unconstitutionally delegated legislative power to a
private entity). Jarkesy would not need to blaze a new trail.
17
In support of his entitlement to the district court’s
attention now, Jarkesy invokes another recent Supreme Court
decision, Free Enterprise Fund v. Public Company
Accounting Oversight Board. 561 U.S. 477 (2010). In Free
Enterprise, an accounting firm (joined by an advocacy
organization) brought suit against the Public Company
Accounting Oversight Board (PCAOB), an entity created by
the Sarbanes-Oxley Act and placed under SEC oversight. Id.
at 484-87. The firm claimed that the PCAOB’s structure
infringed upon the president’s removal power and that its
members had been appointed in contravention of the
Appointments Clause. Id. at 487. The accounting firm was
registered with the PCAOB, and a PCAOB inspection had
uncovered deficiencies in the firm’s audits. At the time the
firm filed its district-court action, however, the PCAOB had
only opened an investigation. Id.
The government argued that the district court lacked
jurisdiction to hear the firm’s suit. It reasoned that, because
the Sarbanes-Oxley Act empowered the Commission to
review any PCAOB rule or sanction, see 15 U.S.C.
§ 7217(b)(2)-(4), (c)(2), and because parties can challenge
either a “final rule” or a “final order” of the Commission in a
court of appeals pursuant to 15 U.S.C. § 78y, the accounting
firm should have pursued its constitutional challenge through
that route instead. Free Enterprise, 561 U.S. at 489.
The Supreme Court rejected the government’s argument
that § 78y implicitly barred the accounting firm’s pre-
enforcement suit. See id. at 489-91. Key to the Court’s
reasoning was that, to bring itself within the PCAOB and
Commission scheme, the firm would have needed to
manufacture a dispute or provoke a sanction. The Court was
highly skeptical that Congress could have intended to require
doing so. “Requiring petitioners to select and challenge a
18
Board rule at random is an odd procedure for Congress to
choose,” the Court explained. Id. at 490. The plaintiffs
“object to the Board’s existence, not to any of its auditing
standards”; and moreover, “only new rules, and not existing
ones, are subject to challenge.” Id. The Court also dismissed
the government’s suggestion that the accounting firm could
obtain review by deliberately incurring a PCAOB sanction.
“If the Commission then affirms [the sanction], the firm will
win access to a court of appeals—and severe punishment
should its challenge fail. We normally do not require
plaintiffs to ‘bet the farm . . . by taking the violative action’
before ‘testing the validity of the law.’” Id. (quoting
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129
(2007)). For those reasons, the Court determined that the
plaintiffs could not “meaningfully pursue” their constitutional
challenges through the administrative scheme. Id.
Although Free Enterprise, like this case, happened to
involve the Exchange Act’s judicial-review provision, the
considerations animating the Court’s decision in Free
Enterprise are absent here. To have his claims heard through
the agency route, Jarkesy would not have to erect a Trojan-
horse challenge to an SEC rule or “bet the farm” by
subjecting himself to unnecessary sanction under the
securities laws. Jarkesy is already properly before the
Commission by virtue of his alleged violations of those laws.
Indeed, the existence of the enforcement proceedings gave
rise to Jarkesy’s challenges. And, should the Commission’s
final order run against him, a court of appeals is available to
hear those challenges. Thus, by contrast to Free Enterprise,
the SEC scheme presents an entirely “meaningful” avenue of
relief to respondents like Jarkesy. The oddities that led the
Supreme Court to believe that Congress could not possibly
have intended the accounting firm to proceed through the
19
administrative route are not present in this case. See Bebo,
2015 WL 4998489, at *9.
For similar reasons, Jarkesy’s case falls outside the
Court’s decision in McNary v. Haitian Refugee Center, Inc.,
498 U.S. 479 (1991), which he also invokes. In McNary,
undocumented aliens who had been denied special
agricultural worker (SAW) status filed a class action claiming
that the Immigration and Naturalization Service’s procedures
implementing the SAW program violated the Due Process
Clause. Id. at 487. A provision of the Immigration and
Nationality Act (INA) barred judicial review “‘of a
determination respecting an application’ for SAW status,”
except in the course of a court of appeals’ review of an alien’s
final order of deportation. Id. at 485-86, 491-92 (emphasis
omitted) (quoting 8 U.S.C. § 1160(e)(1)).
The Supreme Court upheld the district court’s jurisdiction
to consider the plaintiffs’ challenge to the program’s
implementation. It first found that the text of the INA
provision—by referencing “a determination respecting an
application” for SAW status and stating that “judicial review
of such a denial” could occur only in the context of a
deportation proceeding—did not encompass broad procedural
challenges to the program itself. Id. at 491-94 (emphasis
omitted). In supporting its textual holding, the Court further
reasoned that, if the plaintiffs’ claim could reach a court only
by way of a SAW-application denial and a deportation order,
their challenge would be effectively foreclosed. “[M]ost
aliens denied SAW status,” the Court explained, “can ensure
themselves review in courts of appeals only if they voluntarily
surrender themselves for deportation. Quite obviously, that
price is tantamount to a complete denial of judicial review for
most undocumented aliens.” Id. at 496-97. The Court also
found it significant that the record from a single alien’s SAW
20
application and deportation proceeding would be unlikely to
contain the kind of evidence needed to make a systematic
challenge to the agency’s practices. Id. at 497. Considering it
“most unlikely that Congress intended to foreclose all forms
of meaningful judicial review” of the plaintiffs’ due process
claim, the Court found that the district court remained open to
hear their case. Id. at 496, 498-99.
Once again, Jarkesy’s situation does not share the
characteristics that led the Court to permit a judicial challenge
outside the administrative scheme. In McNary, as in Free
Enterprise, the Court balked at an administrative scheme that
forced would-be plaintiffs to “bet the farm”—specifically,
their ability to reside in the United States. Jarkesy is not put
to any such risk here. The Seventh Circuit similarly found
that delayed review of existing administrative proceedings did
not give rise to the sorts of concerns that justified district-
court jurisdiction in McNary and Free Enterprise. Bebo,
2015 WL 4998489, at *9 & n.3. The high price of accessing
review in those cases, the Seventh Circuit explained, was
“[t]he key factor” supporting district-court jurisdiction. Id. at
*9.
Unlike McNary, moreover, this is not a case in which
meaningful judicial review likely would be thwarted by an
inadequate factual record. Jarkesy thinks otherwise,
predicting that later court-of-appeals review will prove
“impossible” because some of his challenges will require
factual development. Appellants Br. 53. His equal protection
class-of-one challenge, for instance, will require fact finding
about the Commission’s decision to institute the
administrative proceeding against him. And Jarkesy argues
that the SEC’s Rules of Practice categorically disallow the
type of discovery he needs to present evidence corroborative
of his allegations, pointing to the fact that the ALJ denied
21
several of his subpoena requests seeking, among other things,
internal Commission records regarding its charging decisions.
We find Jarkesy’s concerns unsubstantiated. For one
thing, the record in his proceeding belies the assertion that the
SEC’s Rules of Practice categorically preclude him from
accessing the evidence he believes he needs. The Rules
permit any party in the proceeding to request the issuance of a
subpoena for “documentary or other tangible evidence” or for
a witness to give testimony. 17 C.F.R. § 201.232(a). True,
the ALJ denied Jarkesy’s requests for the issuance of
subpoenas regarding his equal protection and prejudgment
challenges. See John Thomas Capital Mgmt. Grp., Admin.
Proceedings Release No. 1242, at 1-2 (ALJ Feb. 14, 2014).
But the judge’s decision rested on the context-specific ground
that Jarkesy’s requests were untimely and unreasonable
because they requested evidence “largely consisting of
privileged internal Commission deliberations.” Id. at 2.
Those kinds of bars to discovery are hardly unique to the
SEC’s rules—Jarkesy’s requests might well have met the
same result had he attempted them in district court. See
Chau, 72 F. Supp. 3d at 432.
In any event, Jarkesy has appealed the ALJ’s discovery
rulings to the full Commission, arguing that the ALJ
misapplied the Rules of Practice. See John Thomas Capital
Mgmt. Grp., Exchange Act Release No. 74,345, 2015 WL
728006, at *3 (Feb. 20, 2015). If he’s right, the Commission
stands ready to correct the ALJ’s errors in due course. Id.
Jarkesy can also file—and has filed—a motion with the
Commission “for leave to adduce additional evidence” at any
time before the Commission’s final decision. 17 C.F.R.
§ 201.452; see John Thomas Capital Mgmt. Grp., 2015 WL
728006, at *3.
22
Should Jarkesy’s fears come to pass, however, and
should the record in the administrative proceeding prove
inadequate to the court of appeals considering his attacks on
the Commission’s final order, that court “always has the
option” of “remanding to the agency for further factual
development.” John Doe, Inc. v. Drug Enforcement Admin.,
484 F.3d 561, 570 (D.C. Cir. 2007). As noted, the Exchange
Act’s judicial-review provision expressly allows for that to
happen. See 15 U.S.C. § 78y(a)(5). The court of appeals also
has the ability to “take judicial notice of facts relevant to the
constitutional question[s].” Elgin, 132 S. Ct. at 2138. For
those reasons, the Elgin Court dismissed the plaintiff-
employees’ near-identical argument as overblown. The Court
was confident that the CSRA scheme could accommodate any
fact finding necessary to resolve their constitutional
challenges. Id. at 2138 & n.9. We have the same faith in the
system of administrative and judicial review set forth in the
securities laws.
As a result, “a finding of preclusion” would not
“foreclose all meaningful judicial review” of Jarkesy’s claims.
Free Enterprise, 561 U.S. at 489 (quoting Thunder Basin, 510
U.S. at 212-13). In its recent decision, the Seventh Circuit
declined to find district-court jurisdiction on that basis alone,
which the court viewed to be the “most critical” factor. Bebo,
2015 WL 4998489, at *8. Because we approach the various
factors as guideposts for a holistic analysis, we proceed to
examine the remaining considerations without assessing
whether the capacity for meaningful review would alone
suffice to negate jurisdiction.
2.
We next consider the (related) question of whether
Jarkesy’s claims are “wholly collateral” to the securities laws’
23
scheme. See Elgin, 132 S. Ct. at 2136, 2139; Free Enterprise,
561 U.S. at 489-90 (combining consideration of “wholly
collateral” and “meaningful judicial review” factors). Jarkesy
asserts that, in his court action, he “is not complaining about
anything that happened as part of, and during the pendency of,
the administrative proceeding.” Appellants Reply Br. 13.
That is simply incorrect. Putting aside his purported facial
challenge to Dodd-Frank, the remainder of Jarkesy’s claims
concern (what he perceives to be) substantive or procedural
deficiencies in the Commission’s enforcement of the
securities laws against him to this point.
He attacks the Commission’s decision to place him in
administrative proceedings in the first place, Compl. ¶¶ 25-38
(J.A. 14-17); the Commission’s alleged prejudgment of his
case by accepting the settlement of his co-respondents, id.
¶¶ 17-24 (J.A. 13-14); the Commission’s alleged ex parte
communications with the SEC Enforcement Division; id.
¶¶ 39-46 (J.A. 17-19), and the Division’s alleged Brady
violations, id. ¶¶ 47-59 (J.A. 19-22). We agree with the
district court that those claims 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.” Jarkesy, 48 F. Supp. 3d at 38.
Jarkesy suggests another definition of “wholly
collateral,” arguing that any challenge “independent of and
irrelevant to the securities fraud allegations” against him
should count. Appellants Br. 20-21; accord Gupta, 796 F.
Supp. 2d at 513. But that broad definition misconceives how
the Supreme Court and our court have understood the term
“wholly collateral” in the Thunder Basin line of cases.
Elgin, for instance, asked whether the plaintiff-
employees’ challenge aimed to obtain the same relief they
24
could seek in the agency proceeding: “As evidenced by their
district court complaint, petitioners’ constitutional claims are
the vehicle by which they seek to reverse the removal
decisions, to return to federal employment, and to receive the
compensation they would have earned but for the adverse
employment action.” 132 S. Ct. at 2139-40. Similarly, in
Heckler v. Ringer, 466 U.S. 602 (1984), in finding that the
plaintiffs’ constitutional and statutory claims were not
“collateral” to a scheme of administrative and judicial review
of Medicare payment decisions, the Supreme Court explained
that the plaintiffs’ challenge to the agency’s “procedure” for
making those decisions was, “at bottom,” an attempt to
reverse the agency’s decisions denying their benefits claims.
Id. at 614, 618, cited in Elgin, 132 S. Ct. at 2140. By contrast,
in Free Enterprise, the Court found that the plaintiffs’ pre-
enforcement Article II claims were “collateral” to the SEC
administrative-review scheme because the Free Enterprise
plaintiffs were not in that scheme at all; hence, their general
challenge to the PCAOB’s existence was “collateral to any
Commission orders or rules from which [judicial] review
might be sought.” 561 U.S. at 490 (internal quotation marks
omitted).
Here, Jarkesy’s constitutional and APA claims do not
arise “outside” the SEC administrative enforcement scheme—
they arise from actions the Commission took in the course of
that scheme. And they are the “vehicle by which” Jarkesy
seeks to prevail in his administrative proceeding. Elgin, 132
S. Ct. at 2139-40. Indeed, Jarkesy pressed the same claims as
affirmative defenses before the ALJ, and pressed them again
to the Commission on review of the ALJ’s initial decision. It
is “difficult to see how [the claims] can still be considered
‘collateral to any Commission orders or rules from which
review might be sought,’ since the ALJ and the Commission
will, one way or another, rule on those claims and it will be
25
the Commission’s order that [Jarkesy] will appeal.” Tilton,
2015 WL 4006165, at *12 (citation omitted) (quoting Free
Enterprise, 561 U.S. at 490) (some internal quotation marks
omitted). The result might be different if a constitutional
challenge were filed in court before the initiation of any
administrative proceeding (and the plaintiff could establish
standing to bring the judicial action). See Free Enterprise,
561 U.S. at 490. Here, however, Jarkesy brought this action
after the Commission had initiated its enforcement proceeding
against him, and he seeks to challenge multiple aspects of that
ongoing proceeding.
Instead of seeing that process through to its conclusion,
Jarkesy seeks to terminate the proceeding altogether. He asks
our court to declare the ongoing proceeding against him
“void” and requests that we “enjoin any further administrative
enforcement proceedings against [him] relating to the subject
matter of the Order Instituting Proceedings.” Appellants Br.
61. Our court has previously rejected similar attempts by
respondents in agency proceedings “to short-circuit the
administrative process through the vehicle of a district court
complaint.” Sturm, Ruger & Co., Inc. v. Chao, 300 F.3d 867,
876 (D.C. Cir. 2002) (internal quotation marks omitted).
What we said there also applies here: “Rather than allowing
the statutory review process to run its course—a course that
will eventually lead back to a court of appeals,” Jarkesy has
“sought to make an end run around that process by going
directly to district court. . . . Our obligation to respect the
review process established by Congress bars us from
permitting [Jarkesy] to make this end run, and requires
dismissal of [his] district court complaint.” Id.
To be sure, in Free Enterprise, the Supreme Court
sustained district-court jurisdiction over the plaintiffs’ facial
constitutional challenge to Sarbanes-Oxley. And at one point,
26
in explaining why the plaintiffs’ challenge in that case was
“collateral” to any Commission rules or orders, the Court
characterized the claim as an “object[ion] to the [PCAOB’s]
existence.” 561 U.S. at 490. One could ask whether
Jarkesy’s facial attack on Dodd-Frank is of the same kind and
should lead to the same result.
We do not read the Free Enterprise Court’s
characterization of the plaintiffs’ claims in that case, however,
to define a new category of collateral claims that fall outside
an otherwise exclusive administrative scheme. In its
subsequent decision in Elgin, the Court considered and
rejected the idea that one could divine an exception to an
otherwise exclusive administrative scheme based on the
distinction between various types of constitutional challenges.
“[A] jurisdictional rule based on the nature of an employee’s
constitutional claim would deprive the aggrieved employee,
the MSPB, and the district court of clear guidance about the
proper forum for the employee’s claims at the outset of the
case,” the Court wrote, dismissing the plaintiffs’ proposed
line between constitutional challenges to statutes and other
types of constitutional arguments to be “hazy at best and
incoherent at worst.” Elgin, 132 S. Ct. at 2135. The Elgin
Court also rejected the dissent’s proffered rule making an
exception to the CSRA scheme specifically for facial attacks
on statutes. Id. at 2135-36. The Court explained that “the
distinction between facial and as-applied challenges is not so
well defined that it has some automatic effect or that it must
always control the pleadings and disposition in every case
involving a constitutional challenge.” Id. (quoting Citizens
United v. FEC, 558 U.S. 310, 331 (2010)). “By contrast,” the
Elgin Court reasoned, “a jurisdictional rule based on the type
of employee and adverse agency action at issue does not
involve such amorphous distinctions.” Id. at 2136.
 27
As Jarkesy’s suit illustrates, parsing and categorizing a
litigant’s claim at the outset can prove highly difficult
(especially if the litigant’s formulation shifts along the way).
Like the Elgin majority, we believe that Congress did not
intend the framing of a constitutional challenge—based on
potentially “hazy,” “amorphous,” and “incoherent”
categories—to grant a district court jurisdiction over an
otherwise non-collateral claim. Id. at 2135-36. Jurisdictional
rules, the Supreme Court has intimated, should be
straightforward to apply if possible. See Hertz Corp. v.
Friend, 559 U.S. 77, 94-95 (2010). But the approach
suggested by Jarkesy would do the opposite, inviting
unpredictable litigation at the threshold about whether the
particular challenges at issue fall within or without an
indistinct category of constitutional claims.
Such an approach would also tend to run counter to
important principles of judicial restraint. Out of respect for
the political branches, courts generally avoid ruling on
constitutional grounds when possible. See, e.g., Ashwander v.
Tenn. Valley Auth., 297 U.S. 288, 346-47 (1936) (Brandeis, J.,
concurring). Facial challenges to statutes are especially
disfavored. See Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 450-51 (2008). Yet an
exception to an otherwise exclusive scheme for constitutional
challenges in general, or facial attacks on a statute in
particular, or some other as-yet-undefined category of
constitutional claims, would encourage respondents in
administrative enforcement proceedings to frame their
challenges to the Commission’s actions in those terms and
thereby earn access to another forum in which to advance
their arguments. We doubt Congress intended that result.
The mere fact that Jarkesy presses constitutional claims (even
facial ones) therefore does not control the preclusion inquiry.
28
Certain of Jarkesy’s challenges—namely, his non-
delegation doctrine claim and his equal protection
arguments—could be said to share another characteristic: if
vindicated, the upshot (arguably) would be that Jarkesy
should not have been subjected to the administrative
proceeding at all. And some district courts, facing similar
claims by respondents in SEC proceedings, have found that
consideration significant to the jurisdictional inquiry. See
Duka, 2015 WL 1943245, at *5; Gupta, 796 F. Supp. 2d at
514. Because the SEC respondents in those cases, like
Jarkesy, were alleging harm by virtue of having to undergo a
constitutionally deficient proceeding, and because a later
court-of-appeals decision in the respondent’s favor could not
fully remedy that harm, those courts determined that the
respondents need not “endure the very proceeding[s]” that
they find constitutionally deficient before seeking a remedy in
court. Gupta, 796 F. Supp. 2d at 514.
That concern might be viewed to indicate a “collateral”
claim; or, alternatively, it might be viewed to suggest an
absence of meaningful judicial review (or both). See Free
Enterprise, 561 U.S. at 489-90. Regardless, in our view, the
fact that Jarkesy’s claims attack the process rather than the
result does not mean his claims should receive preemptive
resolution in a district court. Requiring Jarkesy to undergo
the remainder of the proceeding, notwithstanding his
threshold claim that it was wrongly initiated, aligns with how
the law handles analogous claims in similar contexts. See
Bebo, 2015 WL 4998489, at *9.
In FTC v. Standard Oil Co. of California, 449 U.S. 232
(1980), an oil company brought suit against the Federal Trade
Commission alleging that the FTC had issued a complaint
against the company without a reasonable basis. Id. at 234-
35. The Supreme Court determined that the FTC’s issuance
29
of the complaint was neither a final agency action under the
APA nor a collateral order under the doctrine of Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
Standard Oil, 449 U.S. at 238, 246. Consequently, the Court
held that the district court lacked jurisdiction over Standard
Oil’s suit before the conclusion of the FTC enforcement
proceedings. Id. at 246-47. In so finding, the Court was
unmoved by the company’s claims of irreparable harm due to
“the expense and disruption of defending itself in protracted
adjudicatory proceedings” that the company believed never
should have begun. Id. at 244. Though the Court did not
doubt that Standard Oil faced a substantial burden, the Court
responded that “the expense and annoyance of litigation is
part of the social burden of living under government.” Id.
(internal quotation marks omitted).
Subsequently, in USAA Federal Savings Bank v.
McLaughlin, 849 F.2d 1505 (D.C. Cir. 1988), our court
applied Standard Oil to dismiss a bank’s pre-enforcement suit
claiming that an agency was wrongly asserting jurisdiction
over it. Id. at 1506, 1508. Though the bank “[had] been
called upon, much to its chagrin, to participate in a proceeding
that lies beyond what [it] believes to be [the agency’s] lawful
powers,” we nonetheless concluded that jurisdiction did not
lie. Id. at 1510. If “the ‘injury’ inflicted on the party seeking
review is the burden of going through an agency proceeding,”
we held, then “[Standard Oil] teaches that the party must
patiently await the denouement of proceedings within the
Article II branch.” Id.
That principle applies in the criminal context as well.
There is “inevitable injury—often of serious proportions—
incident to any criminal prosecution.” Schlesinger v.
Councilman, 420 U.S. 738, 754 (1975). Yet “the cost,
anxiety, and inconvenience of having to defend against a
30
single criminal prosecution” do not constitute irreparable
injury warranting a federal court’s intervention in an ongoing
state prosecution, even if that prosecution imperils
constitutional rights. Younger v. Harris, 401 U.S. 37, 46
(1971). True, Younger abstention is grounded in
considerations of federalism not implicated here. But the rule
derives from “the basic doctrine of equity jurisprudence that
courts of equity should not act, and particularly should not act
to restrain a criminal prosecution, when the moving party has
an adequate remedy at law and will not suffer irreparable
injury.” Id. at 43-44; see Deaver v. Seymour, 822 F.2d 66, 70
(D.C. Cir. 1987).
Likewise, when a district court denies a federal criminal
defendant’s pretrial motion, that denial ordinarily is not
immediately appealable. The defendant must stand trial first.
See Deaver, 822 F.2d at 70; 6 Wayne R. LaFave et al.,
Criminal Procedure § 27.2(b), at 9 (3d ed. 2007). That
general rule against interlocutory appeals encompasses
selective-prosecution claims, which bear a close resemblance
to Jarkesy’s class-of-one equal protection challenge.
Notwithstanding that “[a] selective-prosecution claim is not a
defense on the merits to the criminal charge itself, but an
independent assertion that the prosecutor has brought the
charge for reasons forbidden by the Constitution,” United
States v. Armstrong, 517 U.S. 456, 463 (1996), defendants
assert such challenges in the course of the prosecution
(usually pretrial), see 4 LaFave, supra, § 13.4(a), at 170-71,
and courts of appeals address the matter only after a
conviction, see, e.g., United States v. Mangieri, 694 F.2d
1270, 1272-76 (D.C. Cir. 1982).
It makes sense that Congress would design the
Commission’s enforcement proceedings to work the same
way. The rule against piecemeal criminal appeals has some
31
exceptions—interlocutory appeals can lie over double
jeopardy claims, for instance. See Abney v. United States, 431
U.S. 651, 662 (1977). But our court in Deaver seriously
doubted that a defendant’s separation-of-powers challenge to
an independent counsel’s authority was among them. 822
F.2d at 70-71. The Deaver court reasoned that, unlike a
defendant claiming double jeopardy, “Deaver does not assert
a constitutional right not to stand trial, but merely claims that
[the independent counsel] is not qualified to direct the
prosecution. Assuming arguendo Deaver’s contention is
correct, his rights can be vindicated by a reversal of any
conviction.” Id. at 71.
We find the Deaver court’s reasoning persuasive, and
Jarkesy’s non-delegation claim is no different. Even
assuming Jarkesy is right that Congress has unconstitutionally
delegated power to the SEC to decide whether to place him in
an administrative proceeding rather than in a court action,
Jarkesy has no inherent right to avoid an administrative
proceeding at all. Thus, “his rights can be vindicated by a
reversal” of the Commission’s final order if the court of
appeals grants his petition for review. Id. at 71.
Of course, should Jarkesy prevail in his administrative
proceeding, his claims would never reach a court of appeals.
But the possibility that a Commission order in his favor might
moot some or all of his challenges does not make those
challenges “collateral” and thus appropriate for review
outside the administrative scheme. See Bebo, 2015 WL
4998489, at *7. Again, precedent illustrates the point. In
Standard Oil, the court of appeals had found jurisdiction over
the company’s case by reasoning that, if the court did not
review its challenge to the FTC’s complaint at that time, “the
alleged unlawfulness would be moot if [Standard Oil]
prevailed in the adjudication.” 449 U.S. at 244 n.11. But the
32
Supreme Court found that possibility to be a feature of the
administrative-exhaustion requirement, not a bug: “[O]ne of
the principal reasons to await the termination of agency
proceedings,” the Court explained, is “to obviate all occasion
for judicial review.” Id. The same holds true for challenges
with “far-ranging and troubling constitutional implications.”
See Deaver, 822 F.2d at 71. As in Standard Oil and Deaver,
“the possibility that [Jarkesy’s] challenge may be mooted in
adjudication warrants the requirement that [he] pursue
adjudication, not shortcut it.” Standard Oil, 449 U.S. at 244
n.11.
We do not read the Supreme Court’s decision in Mathews
v. Eldridge, 424 U.S. 319 (1976), to require concluding
otherwise. The Eldridge Court upheld district-court
jurisdiction over a plaintiff’s claim of entitlement to a hearing
prior to the termination of his Social Security benefits, even
though the plaintiff had failed fully to exhaust his
administrative remedies before filing suit. Id. at 324-25, 327-
32. The Court, however, focused on the unique nature of the
plaintiff’s due process claim. That challenge “rest[ed] on the
proposition that full relief cannot be obtained at a
postdeprivation hearing,” because “an erroneous termination
would damage him in a way not recompensable through
retroactive payments.” Id. at 331. The plaintiff’s claim of
entitlement to a pre-termination hearing thus was “entirely
collateral” to his claim of entitlement to benefits: even if he
succeeded on the latter claim and eventually received the
benefits, the independent harm caused by the delay would
remain. Id. at 330-31. In other words, a court’s subsequent
decision “would not answer his constitutional challenge” to
the delay itself. Id. at 332. In order to afford Eldridge
meaningful review of his claim, the Court excused his failure
to exhaust and found that the district court had jurisdiction.
33
Id. at 332; see Thunder Basin, 510 U.S. at 213 (describing the
facts in Eldridge).
As we have discussed, Jarkesy’s claims do not present
the same problem. The only independent harms Jarkesy will
face as a result of his continuing to undergo the Commission
proceeding are the burdens abided by any respondent in an
enforcement proceeding or any criminal defendant who must
wait for vindication. The judicial system tolerates those
harms, and they are insufficient for us to infer an exception to
an otherwise exclusive scheme.
3.
Finally, Jarkesy argues that Congress could not have
meant to channel his claims through the SEC proceeding
because they fall outside the Commission’s area of expertise.
“While the agency may have well mastered the securities
regulations it administers,” he argues, “it would be
improvident to regard the Commission as a citadel of
constitutional scholarship.” Appellants Br. 58.
Jarkesy underestimates the Commission. He narrowly
focuses on the Commission’s expertise in the securities laws
it applies. And he overlooks the Commission’s development
of concurrent familiarity in issues that regularly arise in the
course of its proceedings. Jarkesy’s proceeding is a case in
point.
In declining to certify for interlocutory review Jarkesy’s
argument that the Commission should be disqualified from
ruling on his case, the ALJ explained that the question
whether a Commission order accepting a co-respondent’s
settlement prejudges another respondent’s guilt has “long
since been settled and addressed in numerous opinions of
courts and of the Commission.” John Thomas Capital Mgmt.
34
Grp., Admin. Proceedings Release No. 1170, at 2 (ALJ Jan.
14, 2014). In denying his petition for interlocutory review,
the Commission also noted that it had “rejected arguments
similar to” Jarkesy’s “in an unbroken line of decisions.” John
Thomas Capital Mgmt. Grp., Securities Act Release No.
9519, 2014 WL 294551, at *2 (Jan. 28, 2014). Similarly, in
its initial decision, the ALJ considered and rejected Jarkesy’s
equal protection arguments, finding it “well established”
under Commission and judicial precedent that a lack of jury
trials in SEC proceedings does not violate the Seventh
Amendment and further finding Jarkesy’s class-of-one theory
deficient based in part on analysis in an earlier Commission
decision. John Thomas Capital Mgmt. Grp., Initial Decision
Release No. 693, 2014 WL 5304908, at *6 (ALJ Oct. 17,
2014).
Because the Commission has proven fully capable of
considering Jarkesy’s attacks on the fairness of his
proceeding—at least in the first instance—nothing about the
nature of those claims strongly suggests that Congress would
have wanted to carve them out of the administrative scheme.
To the contrary, the majority of Jarkesy’s challenges lie
firmly within the Commission’s ordinary course of business.
The Commission arguably has less experience with issues
like Jarkesy’s non-delegation challenge. And Jarkesy once
again invokes Free Enterprise, in which the Supreme Court
noted, in finding jurisdiction, that the accounting firm’s
Article II arguments fell “outside the Commission’s
competence and expertise.” 561 U.S. at 491. Elgin later
clarified, however, that an agency’s relative level of insight
into the merits of a constitutional question is not
determinative.
35
The federal-employee plaintiffs in Elgin—ultimately
joined by the dissent—had argued that their equal protection
and bill-of-attainder challenges to the Selective Service
statutes “[did] not remotely implicate the [MSPB’s]
administrative expertise,” because those challenges “have
nothing to do with the statutory rules of federal employment,
and nothing to do with any application of the ‘merit system
principles’ or the ‘prohibited personnel practices’ that the
[MSPB] administers.” Elgin, 132 S. Ct. at 2143 (Alito, J.,
dissenting). The Court did not dispute the dissent’s
assessment of the MSPB’s expertise. But it explained that the
plaintiffs were overlooking “the many threshold questions
that may accompany a constitutional claim and to which the
MSPB can apply its expertise.” Id. at 2140. The Court
pointed out that the MSPB could “obviate the need to address
the [facial] constitutional challenge” at all if the MSPB were
to resolve the case on other grounds, including by addressing
other statutory or constitutional claims. Id. In addition, “the
challenged statute may be one that the MSPB regularly
construes, and its statutory interpretation could alleviate
constitutional concerns.” Id. “Thus, because the MSPB’s
expertise can otherwise be ‘brought to bear’ on employee
appeals that challenge the constitutionality of a statute,” the
Court saw “no reason to conclude that Congress intended to
exempt such claims from exclusive review before the MSPB
and the Federal Circuit.” Id. (citing Thunder Basin, 510 U.S.
at 214-15).
Here, likewise, the Commission’s expertise “can
otherwise be brought to bear on” the issues in Jarkesy’s
proceeding. As previously discussed, the agency could moot
the need to resolve Jarkesy’s challenge to Dodd-Frank’s
constitutionality (or any other constitutional question) by
finding that he did not commit the securities-law violations of
which he stands accused. Even short of that, the Commission
36
could offer an interpretation of the securities laws in the
course of the proceeding that might answer or shed light on
Jarkesy’s non-delegation challenge. As our court has
previously observed, “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.” Mitchell v. Christopher, 996 F.2d 375, 379
(D.C. Cir. 1993). Accordingly, like the Elgin Court, “we see
no reason to conclude that Congress intended to exempt”
Jarkesy’s non-delegation challenge, or any of his other
constitutional defenses, from the administrative scheme. 132
S. Ct. at 2140.
* * *
Having canvassed the three considerations the Supreme
Court outlined in Thunder Basin, none dissuades us from our
initial conclusion that Congress has implicitly precluded the
district court’s jurisdiction over cases of this type. Quite the
contrary. The rationale underlying Congress’s decision to
create statutory schemes like the one before us is that
“coherence and economy are best served if all suits pertaining
to designated agency decisions are segregated in particular
courts,” City of Rochester, 603 F.2d at 936—here, in a court
of appeals after a final Commission decision. And the “policy
behind having a special review procedure in the first place
similarly disfavors bifurcating jurisdiction over various
substantive grounds,” due to the “likelihood of duplication
and inconsistency.” Id.
As the recent slew of cases demonstrates (see supra
note *), Jarkesy’s case is hardly unique. Many respondents in
SEC proceedings join substantive defenses to their securities
charges together with challenges to the Commission’s actions
or authority. It makes good sense to consolidate all of each
37
respondent’s issues before one court for review, and only after
an adverse Commission order makes that review necessary.
By contrast, a system like the one Jarkesy envisions—where
respondents “‘jump the gun’ by going directly to the district
court to develop their case” instead of seeing agency
proceedings through to conclusion, John Doe, Inc., 484 F.3d
at 570—has comparatively little merit. Such a system, we
have already noted, would create substantial uncertainty about
what sort of claims could properly be adjudicated outside the
administrative scheme. See Elgin, 132 S. Ct. at 2135-36.
And—again, as Jarkesy’s case has shown—it could also
likely result in parallel litigation of the same issues before a
district court and an agency, with two courts of appeals
possibly being confronted with two different sets of rulings
down the road. Cf. id. at 2135.
We cannot conclude Congress had that intent. Jarkesy
must continue to press his various challenges to the
Commission’s enforcement proceeding before the
Commission itself. Should the agency’s final order be
adverse to him, Jarkesy can then raise his challenges in a
petition for review to a court of appeals.
III.
Jarkesy has offered alternate sources of jurisdiction
during the course of this appeal. In his opening brief, Jarkesy
warned our court that the Commission had expedited his
administrative proceeding, a move he thought could
“threaten[] to obstruct the appellate jurisdiction of this Court
to resolve these claims.” Appellants Br. 62. Jarkesy
suggested that the Commission’s fast-tracking might have
required “the exercise of this Court’s powers under the All
Writs Act to protect its jurisdiction,” on the theory that the
Commission could issue its final order before our court could
38
render a decision on the merits of Jarkesy’s claims. Id. at 62-
63 (citation omitted); see 28 U.S.C. § 1651(a). In light of our
determination that we, like the district court, lack any
jurisdiction over those claims that might need protection, we
decline Jarkesy’s invitation. “While the All Writs Act
authorizes employment of extraordinary writs, it confines the
authority to the issuance of process ‘in aid of’ the issuing
court’s jurisdiction. . . . [T]he Act does not enlarge that
jurisdiction.” In re Tennant, 359 F.3d 523, 527 (D.C. Cir.
2004) (quoting Clinton v. Goldsmith, 526 U.S. 529, 534-35
(1999)).
In his reply brief, Jarkesy shifted gears to a different All
Writs Act argument. Invoking our decision in
Telecommunications Research & Action Center v. FCC, 750
F.2d 70 (D.C. Cir. 1984), he argues that we should
nonetheless pass upon his claims to protect our potential
future jurisdiction over his petition for review of the
Commission’s final order (should he lose and choose to seek
review with our court). Appellants Reply Br. 4-5; see
Telecomm. Research, 750 F.2d at 76. There may be other
problems with that argument, but we will rest on this one:
Jarkesy forfeited the argument by failing to raise it in his
opening brief. See Gen. Elec. Co. v. Jackson, 610 F.3d 110,
123 (D.C. Cir. 2010).
* * * * *
We hold that the securities laws provide an exclusive
avenue for judicial review that Jarkesy may not bypass by
filing suit in district court. We therefore affirm the judgment
of the district court dismissing the case for lack of subject-
matter jurisdiction.
So ordered.