PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-1497
SCOTTSDALE CAPITAL ADVISORS CORPORATION; JOHN J. HURRY;
TIMOTHY B. DIBLASI; DARREL MICHAEL CRUZ,
Plaintiffs – Appellants,
v.
FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.,
Defendant – Appellee.
-----------------------------------
SECURITIES AND EXCHANGE COMMISSION,
Amicus Supporting Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Senior District
Judge. (8:16-cv-00860-DKC)
Argued: October 28, 2016 Decided: December 20, 2016
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Motz and Judge King joined.
ARGUED: Jonathan S. Franklin, NORTON ROSE FULBRIGHT US LLP,
Washington, D.C., for Appellants. Timothy Wilson Mountz,
FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., Washington, D.C.,
for Appellee. Martin V. Totaro, SECURITIES AND EXCHANGE
COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF:
John W. Akin, NORTON ROSE FULBRIGHT US LLP, Washington, D.C.,
for Appellants. Terri L. Reicher, Office of General Counsel,
FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., Washington, D.C.,
for Appellee. Anne K. Small, General Counsel, Sanket J.
Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor,
Dominick V. Freda, Senior Litigation Counsel, Josephine T.
Morse, Office of the General Counsel, SECURITIES AND EXCHANGE
COMMISSION, Washington, D.C., for Amicus Curiae.
2
DUNCAN, Circuit Judge:
Scottsdale Capital Advisors Corporation and three of its
current and former officers (collectively, “Scottsdale”) are
respondents in an ongoing disciplinary proceeding before the
Financial Industry Regulatory Authority, Inc. (“FINRA”) for
allegedly selling unregistered securities in violation of
Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e
(“Securities Act”) and FINRA Rule 2010. Before FINRA completed
its proceedings, Scottsdale sought an injunction in federal
district court, claiming the FINRA proceeding is unauthorized
because FINRA may only discipline members for violations of the
Securities Exchange Act of 1934, 15 U.S.C. § 78a, et seq.
(“Exchange Act”). The district court dismissed for lack of
subject-matter jurisdiction and Scottsdale appeals. For the
reasons that follow, we affirm.
I.
A.
Congress, through the Exchange Act, delegated the power to
register national securities associations (“RSAs” or
“associations”) to the Securities and Exchange Commission
(“SEC”). Pursuant to this authority, the SEC registered FINRA
3
as an RSA. 1 FINRA, comprised of financial brokers and dealers,
promulgates rules to enforce broker-dealer compliance with the
Exchange Act, “the rules and regulations thereunder . . . and
the rules of the association.” 15 U.S.C. § 78o-3(b)(2).
Despite FINRA’s seemingly broad power, Congress mandated
that the SEC exercise close supervision over the association.
Before any FINRA rule goes into effect, the SEC must approve the
rule and specifically determine that it is consistent with the
purposes of the Exchange Act. Id. §§ 78o-3(b)(6), 78s(b)(2)(C).
The SEC may also amend any existing rule to ensure it comports
with the purposes and requirements of the Exchange Act. Id.
§ 78s (b)(1), (c).
B.
The Exchange Act sets out the process by which FINRA may
initiate disciplinary proceedings, which is codified in FINRA’s
Code of Procedure. 15 U.S.C. § 78o-3(h); FINRA Rule 9000, et
1 FINRA, a private not-for-profit corporation, is the
successor organization to the National Association of Securities
Dealers, Inc. (“NASD”). In 2007, NASD merged with the New York
Stock Exchange’s regulation committee to form FINRA. See
Notice, 72 Fed. Reg. 42169, 42170 (Aug. 1, 2007). FINRA is the
only RSA. FINRA is also a self-regulatory organization (“SRO”)
by virtue of the fact that is an RSA. 15 U.S.C. § 78c(a)(26).
4
seq. 2 When FINRA believes a member has violated “any rule,
regulation, or statutory provision, including the federal
securities laws and the regulations thereunder,” FINRA
Rule 9211, it begins a disciplinary proceeding by filing a
complaint against the member. Id. 9212. If the respondent
requests, FINRA will hold a hearing, after which a Hearing Panel
will issue a written decision. Id. 9221, 9268. The respondent
or FINRA may appeal the Hearing Panel’s decision to the National
Adjudicatory Council (“NAC”), a FINRA committee. Id. 9311. An
appeal to the NAC acts as a stay of the Hearing Panel’s
decision. Id. 9311(b). The NAC may affirm, modify, reverse,
dismiss, or remand the Hearing Panel’s decision. Id. 9349(a).
The NAC’s decision (or the Hearing Panel’s decision if there was
no appeal) is FINRA’s final action unless FINRA’s Board of
Governors calls for review. Id. 9351.
Review of final FINRA action invokes the SEC’s role under
the Exchange Act in overseeing FINRA’s authority to discipline
members. FINRA must “promptly file notice” with the SEC when it
“imposes any final disciplinary sanction” on any member and
FINRA members may appeal adverse final FINRA actions to the SEC
for review. 15 U.S.C. § 78s(d)(1), (2). An appeal to the SEC
2
FINRA Rules are not published in the Code of Federal
Regulations but can be found at
http://finra.complinet.com/en/display/display.html?rbid=2403&ele
ment_id=607.
5
“shall stay the effectiveness of any sanction, other than a bar
or an expulsion.” FINRA Rule 9370(a). The SEC, upon its own
motion or by appeal from the member, “shall” then review FINRA’s
decision to ensure any rule allegedly violated was “applied in a
manner[] consistent with the purposes” of the Exchange Act.
15 U.S.C. § 78s(e)(1)(A). The SEC can affirm, modify, or set
aside FINRA’s decision or remand for further proceedings. Id.
§ 78s(e)(1). If, after SEC review, a party remains “aggrieved,”
it “may obtain review” of the SEC’s final order in the
appropriate court of appeals. Id. § 78y(a)(1); see also Bennett
v. SEC, No. 15-2584, slip op. at 3 (argued Oct. 28, 2016). With
this judicial-review scheme in mind, we turn to the FINRA
proceeding at issue here.
C.
On May 15, 2015, FINRA initiated a disciplinary proceeding
against Scottsdale, alleging it had liquidated over 74 million
shares of unregistered stocks in violation of Section 5 of the
Securities Act, 15 U.S.C. § 77e(a). According to FINRA’s
complaint, Scottsdale’s violation of the Securities Act also
violated FINRA Rule 2010, which requires members to “observe
high standards of commercial honor and just and equitable
principles of trade.” FINRA Rule 2010. Scottsdale filed a
motion for summary disposition with the FINRA Hearing Panel,
alleging, inter alia, that FINRA did not have jurisdiction to
6
bring the proceeding because it can only charge violations of
the Exchange Act, not the Securities Act. The Hearing Panel
denied the motion and scheduled a hearing for June 13–24, 2016.
Scottsdale then filed for declaratory and injunctive relief
in the United States District Court for the District of
Maryland, alleging, as it had before FINRA, that the
disciplinary proceeding was ultra vires. FINRA filed a motion
to dismiss for lack of subject-matter jurisdiction and failure
to state a claim.
On April 26, 2016, the district court held a hearing on the
motion to dismiss. Assuming without deciding that Scottsdale
had a cause of action under the Exchange Act, the district court
nonetheless found it “clear” that “Congress intended to channel
judicial review through th[e] comprehensive scheme” found in
15 U.S.C. §§ 78s and 78y. J.A. 176. “The question of whether
the . . . FINRA rules that are involved here are within their
authority and appropriate,” the district court reasoned, is
“clearly within” the review scheme outlined in the Exchange Act.
J.A. 176–77. The district court relied on Thunder Basin Coal
Company v. Reich, 510 U.S. 200 (1994), to dismiss the complaint,
finding it “beyond the subject matter jurisdiction” of the court
to consider a challenge “to the ongoing disciplinary
proceeding.” J.A. 178. Scottsdale appeals.
7
II.
A.
Scottsdale argues FINRA exceeded its authority by charging
it with violations of the Securities Act and, therefore, the
proceeding is ultra vires. FINRA counters that, as a threshold
matter, Scottsdale must first press its claim through the
administrative process and then seek review in the appropriate
court of appeals. We review a district court’s dismissal of a
complaint for lack of subject-matter jurisdiction de novo.
Nat’l Taxpayers Union v. U.S. Soc. Sec. Admin., 376 F.3d 239,
241 (4th Cir. 2004).
B.
Article III courts are “courts of limited jurisdiction,”
possessing “only that power authorized by Constitution and
statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). “Congress may, in its discretion, grant,
withhold, or otherwise limit the jurisdiction of the lower
federal courts.” Wade v. Blue, 369 F.3d 407, 410 (4th Cir.
2004). We are bound by those limitations unless they offend the
Constitution. See Bowles v. Russell, 551 U.S. 205, 212 (2007).
Notwithstanding the exclusive grant of jurisdiction to the
courts of appeals in the Exchange Act, Scottsdale argues the
district court had jurisdiction to consider its claim because
FINRA lacked authority to initiate the disciplinary proceeding.
8
Scottsdale believes it need not, as it describes it, exhaust
administrative remedies before seeking review in this court for
two reasons. 3 First, Scottsdale claims the limited exception to
jurisdiction-stripping recognized in Leedom v. Kyne, 358 U.S.
184 (1958), applies because FINRA is allegedly acting outside of
its statutory authority. Alternatively, Scottsdale asserts its
claim is not of the type Congress intended to remove from
district court jurisdiction under the framework articulated in
Thunder Basin. We discuss each claim in turn.
C.
1.
Scottsdale first argues the district court had jurisdiction
under Leedom. Leedom involved a challenge to the National Labor
Relations Board’s (“NLRB”) decision--in direct violation of the
National Labor Relations Act (“NLRA”)--to include both
3 Scottsdale incorrectly frames the issue as one of
exhaustion. We agree with the district court and the SEC as
amicus that the district court is not the proper forum for
Scottsdale’s claim. Exhaustion is a temporal concern--the
inquiry is when, not whether, a plaintiff may bring a claim.
Requiring a plaintiff to first exhaust administrative remedies
avoids the “premature interruption of the administrative
process.” McKart v. United States, 395 U.S. 185, 193 (1969).
However, when Congress creates a statutory scheme that
unambiguously vests judicial review of agency action in the
courts of appeals, “those procedures ‘are to be exclusive’”
unless a plaintiff can show its claims are not of the type
Congress intended to limit. Free Enter. Fund v. Pub. Co.
Accounting Oversight Bd., 561 U.S. 477, 489 (2010) (quoting
Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans &
Trust Co., 379 U.S. 411, 420 (1965)).
9
professional and nonprofessional employees in a collective
bargaining unit. 358 U.S. at 184–86. Before the Court, the
NLRB conceded that it “had acted in excess of its powers and had
thereby worked injury to the statutory rights” of the
petitioners. Id. at 187. Even though the NLRA precluded
district court jurisdiction of such an action, the Supreme Court
held that the district court had jurisdiction because the NLRB
had acted “in excess of its delegated powers and contrary to a
specific prohibition in the Act.” 4 Id. at 188 (emphasis added).
In such a case, the Court reasoned, the suit is not to “review”
as the term is used in the governing statute because the agency
has acted without authority. Id.
Scottsdale contends that, similar to the action in Leedom,
FINRA has exceeded its delegated authority, thereby removing the
statutory bar to jurisdiction. However, such a reading extends
Leedom beyond its “painstakingly delineated procedural
boundaries.” Boire v. Greyhound Corp., 376 U.S. 473, 481
(1964). Leedom relied on the presumption that when “Congress
4 The NLRA provision at issue stated “the Board shall not
(1) decide that any unit is appropriate for such purposes if
such unit includes both professional employees and employees who
are not professional employees unless a majority of such
professional employees vote for inclusion in such unit.”
Leedom, 358 U.S. at 185. The NLRB included professional and
nonprofessional employees in the unit and refused to hold a vote
to allow professional employees to agree to inclusion. Id.
at 186.
10
has given a ‘right’ . . . it must be held that it intended that
right to be enforced” and that intention supersedes
congressional jurisdiction-stripping provisions. 358 U.S.
at 191. If the district court in Leedom did not exercise
jurisdiction, petitioners would have “no other means, within
their control, . . . to protect and enforce” a congressionally
given right. Id. at 190. By contrast, Scottsdale does not
identify a congressionally authorized right of action. 5
Leedom is also factually distinguishable in that FINRA does
not concede that it acted in excess of its statutory authority.
Before the district court and on appeal, FINRA maintains it has
authority to sanction members for violations of all federal
securities laws, including the Securities Act. Finally, and
crucial to the decision in Leedom, Scottsdale has ultimate
recourse to the federal courts through 15 U.S.C. § 78y. Leedom
is a narrow exception, used only when “but for the general
jurisdiction of the federal courts there would be no remedy” for
a congressionally authorized private right of action. Id. 6
5
We share the district court’s doubt that Scottsdale has
identified a private right of action to bring this claim. See
Alexander v. Sandoval, 532 U.S. 275, 293 (2001).
6
Further, the Supreme Court foreclosed Scottsdale’s
expansive interpretation of Leedom in Board of Governors of the
Federal Reserve System v. MCorp Financial, Inc., 502 U.S. 32
(1991). In MCorp, the Fifth Circuit exercised jurisdiction over
a claim despite a jurisdiction-stripping provision because it
(Continued)
11
2.
In addition to being procedurally and factually dissimilar
to Leedom, Scottsdale cannot satisfy this court’s two-pronged
test to invoke the Leedom exception. To do so, a petitioner
must make (1) a “strong and clear demonstration that a clear,
specific and mandatory [statutory provision] has been violated,”
Long Term Care Partners, LLC v. United States, 516 F.3d 225, 234
(4th Cir. 2008) (quoting Newport News Shipbuilding & Dry Dock
Co. v. NLRB, 633 F.2d 1079, 1081 (4th Cir. 1980)), and (2) “the
absence of federal court jurisdiction over an agency action
‘would wholly deprive’ the aggrieved party ‘of a meaningful and
adequate means of vindicating its statutory rights.’” Id.
at 233 (quoting Bd. of Governors of Fed. Reserve Sys. v. MCorp
Fin., Inc., 502 U.S. 32, 43 (1991)). After considering these
criteria, we conclude that the Leedom exception does not apply.
First, FINRA has not violated a clear statutory
prohibition. “When a party invokes Leedom as the basis for this
court’s jurisdiction, we conduct a ‘cursory review of the
read Leedom to “authoriz[e] judicial review of any agency action
that is alleged to have exceeded the agency’s statutory
authority.” Id. at 43. The Supreme Court reversed, rejecting
such a broad reading of Leedom because the statute at issue in
MCorp--like the Exchange Act--provided “meaningful and adequate
opportunity for judicial review.” Id. The Court further
clarified that the lack of judicial review--and not the agency’s
alleged actions--was the “central” factor in Leedom. Id.
12
merits’ to determine if the agency acted ‘clearly beyond the
boundaries of its authority.’” Id. at 234 (quoting Champion
Int’l Corp. v. EPA, 850 F.2d 182, 186 (4th Cir. 1988)). So long
as the agency’s interpretation of the statute is “‘plausible’
. . . we will find that it did not ‘violate a clear statutory
mandate.’” Id. (quoting Hanauer v. Reich, 82 F.3d 1304, 1311
(4th Cir. 1996)). 7
Scottsdale points to numerous references in the Exchange
Act that limit the authority of FINRA to discipline members for
violations of “this chapter,” that is, the Exchange Act. See,
e.g., 15 U.S.C. § 78o-3(b)(2). Scottsdale argues these
provisions delimit FINRA’s authority to charge only violations
of the Exchange Act. FINRA counters that the Exchange Act also
authorizes it to enact its own rules and enforce compliance.
See id. (“Such association is so organized . . . to enforce
compliance . . . with the provisions of this chapter . . . and
7 Although we style our application of Leedom in terms of
agency interpretation, FINRA is not an agency. The SEC
participated in this litigation as amicus but declined to take a
position on the merits since Scottsdale raises the same claim in
the ongoing FINRA proceedings, which the SEC will likely review.
Amicus Br. at 4. However, the SEC has implicitly adopted
FINRA’s interpretation of its authority to sanction members for
violations of the Securities Act. See, e.g., In re ACAP Fin.,
Inc., Exchange Act Release No. 70046, 2013 WL 3864512, at *7
(July 26, 2013) (affirming FINRA’s decision to charge a member
who sold unregistered securities in violation of the Securities
Act with violating NASD Rule 2110, the predecessor rule to FINRA
Rule 2010).
13
the rules of the association.”). According to FINRA, if
Congress did not intend for it to have authority to enact rules
for securities violations beyond the Exchange Act, it would be
unnecessary for the statute to also mention both the rules of
the statute and the association (i.e., FINRA). FINRA further
asserts that grounding violations of the Securities Act in its
Rule 2010 is an exercise of its statutory authority to “promote
just and equitable principles of trade [and] foster cooperation
and coordination with persons engaged in regulating, clearing,
settling . . . and facilitating transactions in securities.”
Id. § 78o-3(b)(6). We find this interpretation plausible. Long
Term Care, 516 F.3d at 235. Moreover, the Exchange Act
provisions that Scottsdale cites do not clearly proscribe
FINRA’s actions in the same way that the NLRB acted contrary to
a direct prohibition of the NLRA in Leedom. Therefore, we
conclude FINRA has not violated a clear statutory mandate.
Scottsdale also cannot satisfy the second criterion because
the Exchange Act provides Scottsdale a “meaningful and adequate
opportunity for judicial review” of its claims. MCorp, 502 U.S.
at 43. Congress established a comprehensive system whereby
Scottsdale can appeal an adverse FINRA decision to the SEC and a
final adverse SEC decision in the appropriate court of appeals.
15 U.S.C. §§ 78s, 78y; see also Bennett, No. 15-2584, slip op.
at 20–26.
14
Because FINRA’s interpretation of its authority to charge
its members with violations of the Securities Act is plausible
and the Exchange Act provides for meaningful judicial review,
the Leedom exception does not apply. In so holding, we have not
decided the “ultimate merits,” Long Term Care, 516 F.3d at 234–
35, of FINRA’s position, but simply conclude that Scottsdale’s
claim does not fall within the “narrow limits” of Leedom.
Boire, 376 U.S. at 481.
D.
Scottsdale next argues that, even if Leedom does not apply,
and notwithstanding the comprehensive judicial-review
provisions, Congress did not intend to strip district courts of
jurisdiction over this particular type of claim. When deciding
whether a particular claim falls outside of the congressionally
enacted review scheme, we employ the two-step analysis outlined
in Thunder Basin. First, we ask whether Congress’s intent to
divest district courts of jurisdiction is “fairly discernible”
from the statute’s text, structure, and purpose. Thunder Basin,
510 U.S. at 207 (quoting Block v. Cmty. Nutrition Inst., 467
U.S. 340, 351 (1984); see also Bennett, No. 15-2584, slip op.
at 19). Neither party disputes that it is “fairly discernible”
that Congress intended to preclude district court jurisdiction.
See Appellant’s Br. at 27.
15
We therefore turn to step two of Thunder Basin and ask
whether Scottsdale’s “claims are of the type Congress intended
to be reviewed within this statutory structure.” 510 U.S.
at 212. This claim-specific analysis considers three factors:
(1) whether “adjudication of petitioner’s claims through the
statutory-review provisions will violate due process by
depriving petitioner of meaningful judicial review”; (2) whether
the claims are “wholly collateral” to the statute’s review
provisions; and (3) whether the claims are “outside of the
agency’s expertise.” Id. at 212–14. Applying each of these
factors to Scottsdale’s claim, we agree with the district court
that the Exchange Act’s “administrative structure was intended
to preclude district court jurisdiction over petitioner’s claims
and that those claims can be meaningfully reviewed through that
structure consistent with due process.” Id. at 218.
First, Scottsdale can obtain meaningful judicial review.
The Exchange Act sets out a comprehensive review scheme through
which Scottsdale could have ultimate judicial review in this
court. 15 U.S.C. § 78y. Scottsdale contends post-proceeding
judicial review is inadequate for two reasons: (1) forcing it to
submit to an allegedly unauthorized proceeding before seeking
Article III judicial review will cause irreparable harm; and
(2) there will be no appeal to this court if it prevails.
Neither contention has merit.
16
Scottsdale’s desire to “prevent the per se irreparable harm
of being forced to submit to the orders of an organization
acting beyond the limits of its statutory authority,”
Appellant’s Br. at 28–29, conflicts with the long-standing
principle that “the expense and annoyance of litigation is ‘part
of the social burden of living under government.’” Bennett,
slip op. at 22 (quoting FTC v. Standard Oil of Cal., 449 U.S.
232, 244 (1980)). The same is true of Scottsdale’s allegations
of potential reputational harm. See Sampson v. Murray, 415 U.S.
61, 89 (1974).
Scottsdale’s concern that it will be unable to press its
claims if it prevails before FINRA also lacks merit. Federal
regulations “specifically provide[]” mechanisms by which
Scottsdale could challenge FINRA Rule 2010 outside of the
disciplinary proceeding. Standard Oil, 449 U.S. at 245.
Scottsdale could petition the SEC--apart from any disciplinary
action--to amend or repeal FINRA Rule 2010. See 17 C.F.R.
§ 201.192. The SEC’s decision on FINRA’s rule would be final
agency action of which Scottsdale could then seek review in the
appropriate court of appeals. 15 U.S.C. § 78y. And
Scottsdale’s position is wholly unlike that of the petitioners
in Free Enterprise: Scottsdale is not required to “‘challenge a
Board rule at random’ or ‘bet the farm’ by voluntarily incurring
a sanction in order to trigger § 78y’s mechanism for
17
administrative and judicial review.” Bennett, No. 15-2584, slip
op. at 10 (quoting Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 490 (2010)).
Turning to the second Thunder Basin factor, Scottsdale’s
claims are not wholly collateral to the Exchange Act. In
Bennett, we explained that a claim is not wholly collateral when
it is “‘the vehicle by which [petitioners] seek to reverse’
agency action.” Bennett, No. 15-2584, slip op. at 26 (quoting
Elgin v. Dep’t of Treasury, 132 S. Ct. 2126, 2139 (2012)).
Scottsdale challenges “FINRA’s statutory authority to prosecute
disciplinary actions premised on alleged violations of the
Securities Act.” Appellant’s Br. at 30. As Scottsdale’s claim
arises out of the proceeding against it and provides an
affirmative defense, it is not wholly collateral to the statute.
Finally, Congress has expressly determined the SEC’s
expertise is relevant to the claim at issue here. Scottsdale
argues its claim, like the petitioners’ claim in Free
Enterprise, is outside of the SEC’s “competence and expertise.”
561 U.S. at 491. In Free Enterprise, the Supreme Court
permitted a petitioner to bring a pre-enforcement constitutional
challenge to the existence of the Public Company Accounting
Oversight Board despite Congress’s intent to channel claims
through the statutory scheme laid out in § 78y. Id. at 490.
The Free Enterprise Court held that agency expertise was not
18
required because the claims did “not require ‘technical
considerations of [agency] policy,’” id. at 491 (quoting Johnson
v. Robinson, 415 U.S. 361, 373 (1974)), but were “standard
questions of administrative law, which the courts are at no
disadvantage in answering.” Id.
Scottsdale’s argument that this claim lies outside of the
agency’s expertise is belied by the text of the Exchange Act.
Section 19 of the Exchange Act lays out a comprehensive
oversight scheme whereby Congress gives the SEC the authority to
supervise FINRA’s rules, including approving or modifying FINRA
rules in any way the agency deems appropriate or necessary.
15 U.S.C. § 78s. As part of the SEC’s oversight of FINRA,
Congress vested authority in the SEC to review “a final
disciplinary sanction imposed by” FINRA and determine whether
its rules “were applied in a manner[] consistent with the
purposes” of the Exchange Act. 15 U.S.C. § 78s(e)(1). Thus,
Congress unambiguously channeled Scottsdale’s claim--whether
FINRA has exceeded its authority in charging Scottsdale--to the
SEC for determination in the first instance. Considering all
three Thunder Basin factors, we conclude that the district court
lacked jurisdiction over Scottsdale’s claim.
19
III.
When Congress provides a comprehensive review scheme our
judicial review must comport with those statutory provisions
unless doing so would violate the Constitution. Congress,
through the Exchange Act, intended to channel objections to
FINRA’s authority through the agency and the courts of appeals.
In so doing, it is clear Congress sought to preclude federal
district-court jurisdiction. Because Scottsdale can obtain
meaningful judicial review of its claim in this court following
the appeal process outlined in the Exchange Act, we hold its
challenge to FINRA’s authority is the type of claim Congress
intended to be reviewed within the statutory scheme.
Accordingly, the district court properly dismissed for lack of
subject-matter jurisdiction. For these reasons, the judgment of
the district court is
AFFIRMED.
20