please the court i'm margaret little of the new civil liberties alliance representing appellant michelle cochran michelle cochran asks this court today to find jurisdiction and remand to the district court article three courts have the power and the duty to enjoying the f c c getting a mere moments to serial unconstitutional administrative proceedings destined to be set aside  cochran endured one such proceeding pro se in two thousand and sixteen and now the f c c has set a nd administrative proceeding into motion before a judge that the government itself has argued enjoys unconstitutional multiple layers of tenure protection all americans have the right to demand a lawful court they should not be subjected to serial to be vacated hearings that impose enormous professional reputational and financial costs on respondents that create costly and prejudicial years long delays that impair the ability of respondents to defend further they constitute a profit waste of public resources to be vacated because you are on bunk or just said that if there is indeed a problem with the removal power that the remedy is case is you have a different statute is different statutory scheme and you have multiple layers of technique in the tenure protection in addition the the situation is factually different in terms of where the pla stand and what the remedies might be so i agree with your interpretation of the column collins case but this isn't it in a different posture and it is entirely possible that a court can determine that the same remedy that was afford free enterprise fund provides the rule of decision on both jurisdiction and the merits of the supreme court interpreted this exact same statutory scheming and concluded that quote nothing in seventy dollars y expressly or in implicitly limits jurisdiction that other step shoots confer on district courts the inquiry for this court should end right there this is why this court should not accept as he sees invitation to fall into error as five circuits have done free enterprise fund has already cycled through the thunder basin factors and reached a different destination as to every single point the way the analysis works it's a two part tests and then to assist the court in determining part two there's another three test so something like five tests the problem with the s e a cases is that they neglect or gloss over completely the very st and determinative question which is is it fairly discernible from the text of the statutory scheme that congress intended to consign this cut type of claim to an administrative proceeding the free enterprise fund court says of the same statute that is at stake here the text does not expressly limit the jurisdiction that other statutes confer on district courts nor does it do so implicitly the nd part of the inquiry is is the claim of the type that congress intended to be adjudicated  convey one thing today i think it is hard to make a case at all that congress ever intended anyone in ministry to the agency ordained ministry of law judge to be citing structural constitutional questions such as that presented here having to do with the complex removal protections that are afforded to f c c a judge's but to the point in a free enterprise fund when they reach the part of the analysis about whether this is the claims or of the type congress intended to be injured kitted here's what they say and this again is a direct quote petitioner's cla are outside the commission's competence and expertise competence as an important word then in to assist a court in disturbing whether they are of the type there are three factors familiar to you i'm sure from the extensive briefing in this matter two of those factors whether the claim is wholly collateral or also outside the expertise of the f c c or its a l j investigation by this board i mean that's the the bank of louisiana decision from earlier this year the f d i c case out of our court distinguishes free enterprise in that way so how do you i don't think that they respond to bank of louisiana and i don't think that's a distinguishing factor that had any bearing on the jurisdictional question at stake here and also the issue of whether there was collusion doesn't it go to the core issue of whether it's the st question under the three there an alternative way to raise this and if there's an unfortunate proceed in you can raise it whether effectively or not in an enforcement proceeding whereas when you're just under investigation there's no vehicle whatsoever to raise a challenge to that absent going to federal district court which makes michelle cochran's case all the more compelling because what you have been in the free enterprise fund is somebody who wasn't parm and by the public company accounting oversight board at all they were not subject to any kind of sanctions any kind of action by the board nonetheless the supreme court which binds this court said you can come in and challenge the removal protections here we have somebody harmed by the and dragged into the proceeding eighteen of the f d i c statute a thunder basin is a doctrine and a tool of statutory interpretation than the united states supreme court has already interpreted seventy eight why in addition in the bank of louisiana case they were going terminating a statute that had a provision that said that the review only after the administrative proceedings to this circuit court was exclusive in the print provided for injunctive relief at all and that's why the panel came out the way they did it was a separation of powers issue in bank louisiana was it the same as the one here well that's really hard to tell from the record in an in an earlier panel hearing on motions that issue came up because it's barely mentioned in bank of i did not see it in the bank it is barely a mention in the bank of louisiana case judge jones expressed some concern about you know whether it was even in the case at all and i'm sure my esteemed counsel for the securities and exchange commission will address that point but i one thing the court does say is the only planes that they were seriously  score in any way so getting back to the analysis of the five point in houses there's eleven dollars fact we have not discussed yet and that's the meaningful judicial review in a sensually those five  a l j cases hang their decisions on that one thin thread but the free enterprise fund says we do not see how petitioners could meaningful making fully pursue the constitutional claims under the government's theory not every board action is an capsulated in a final commission order or rule now we are not committed we are not  challenging the commission order we there's no final order at stake here and we're not cow challenging a commission rule we are challenging the unconstitutional removal protections that protect a c c a l administrative law judges free enterprise fund again says we do not consider eventual judicial review to be a meaningful avenue of relief on the removal question and that oh it that is really what this case comes down to five circuit courts do not examine the actual statute seventy eight why they fly in the face of controlling supreme court authority that holds otherwise further those  case that the limitations that the provision imposes on removal of the commission a l j is would be an unconstitutional if the interpretation that they were offering to the supreme court  could not be reconciled with the statute it's a pretty strong admission from the government and an important one for the purposes of this case also  a distinction that applies to michelle cochrane here in one of the five s c c a l j cases had the plaintiff been put through one unconstitutional proceeding that they asked if he had every reason to know it was unconstitutional and then was poised to go cases consider the fact that removal may only be cured either by congress or a federal court with the power to sever so because those courts did not even consider this question though they don't also has already been barred for two years inflicting in irreparable professional reputational your reversible harm on her the pending a foresman action also inflicts immediately and lasting reputation consequences for her employment in the industry further witness memories documents evidence testimony is becoming weaker and more on available and circuit court eventual review cannot restore any of that plaintiff's requested relief would also become moot because the court of appeals cannot enjoying a hearing that has already occurred further the public has a compelling interest in ensuring that its citizens are not subjected to unconstitutional treatment by their government finally said in the supreme court decision that they wanted lower courts to address removal the f c c could have brought an action against the pla to either in federal district court or before the commission and it still could bring an action against her before the commission it chose to bring that the action before before and i'm constitutionally appointed a l j may please the court and you idler for the securities and exchange commission as this court explained and make of louisiana five different courts of appeals have held that respondents in ongoing s e c proceedings can release constitutional challenges as part of those proceedings and then jurisdiction and then i believe it's also that comes exclusive upon following up the record and then it also has a separate provision that says and nobody else estrus ticks so the f c c statute nears that st right it says if you don't like a decision of the f c c you can nine you know that exclusive bar really applies and at the end of that footnote the court says in any event we don't need to resolve that issue because of our holding that the statutory scheme i e that st part about whether or not you can implicitly discern that there is not  president but i think the dispositive fact that the court and think of louisiana recognize there and every other part of appeals is recognized to is that free enterprise fund involved a free standing challenge to the public company oversight accounting board there were no ongoing administrative proceedings every one of these cases any bank of louisiana itself that came after free enterprise fund with the courts recognizes off you already are in an enforcement proceeding that will culminate in judicial review in the courts of appeals to a final agency ordered by a federal circuit court that's a page nine hundred and twenty five and so here you clearly have that right they can and have raised their constitutional and statute of limitations challenges in the s e c proceedings those are preserved they can resume again before the commission and have the mission consider them if they are briefed by final order of the commission they can redirect that on judicial review and of course the court of appeals would have authority to consider both of those claims in their entirety right so then there are the two other factors is it wholly collateral to review scheme and can the agency bring its expertise to bear on it so one is equally collateral known because it's not a free standing challenge not everybody in the world has a grievance with it an a of removal restrictions right you have you're able to raise that claim when you're in an administrative proceeding that is before an able jay and at that point congress says ok here's how that review goes the l g hears the case than the commission does and also just gets into the issue of you know their claim that this person doesn't have authority to hear my case that also goes to the rightness analysis which was pointed out that this court's encountered an energy transfer partners and total that's right what there in those cases what they were alleging is that they were being forced to be part of an administrative proceeding being held before an l j and that there is no adequate remedy through going through that proceeding right and this court in both of those cases said that's not a right claim for adjudication because you might prevail on the merits of the biggest rate of action you might not have violated any statutes or regulations and that would would the judicial challenge and what the court said in energy transfer partners page two hundred and forty one is the possibility that plaintiff may the of for the federal energy regulatory commission and then with the court said well even if you're raising appointments clause challenge that l j ultimately that rests on a series of contingencies you have to believe that the l j's eventually going to rule against you and that the commission is going to rule against you  a statute of limitations challenge right if the commission's well versed in its statute of limitations and can afford the relief that they're meritorious go against the basic principle that for example we can't sometimes we have appeals where the merits issues at really straightforward kind of flipping the idea that well maybe you want her to that my they don't have jurisdiction but they want her to that much if they rule for you ok but that seems inconsistent with the notion that jurisdiction is key so you don't get to rule for or have the power to decide because there are cost unconstitutionally appointed that's jurisdictional no i don't think it is your own or the statutes give the f c c jurisdiction to initiate enforcement actions and the level and the best case i'd point you to that is frank's hug vs commissioner this was an appointments close challenge to a special trial judge of the tax court petitioners in that case said they weren't properly appointed and so therefore everything that happened in the proceeding was basically void and what the supreme court said is ok well you didn't raise that initially and so it's been forfeited but it doesn't go to jurisdiction it goes to a separation of powers challenge in the structure of the constitution so we'll consider it want to distinguish a little bit collins versus mission was not dealing with you do you get to cases and in fact that's a distinction that adjudicated cases are perhaps different whether i have jurisdiction or not in your world if i just showed up a policy that was disagreed with so i'm not sure that that necessarily answers the question of how you address and unconstitutionally appointed and all jr you want to term and get no i don't know of a perfect analogy but the other  to is when versus united states it's not set in the recent years no one i'm trying to be helpful in answer question it was decided in the late ninety's and there was a territorial judge from guam sat on a panel of the th circuit that affirmed a criminal conviction and there was no objection at the time it went up to the supreme court in this print court said you're right it's forfeited it's not a jurisdictional issue but we're going to address it anyway because it's one of extreme importance it goes to the composition of the court so again the issue is not whether or not the  statutes the congress hasn't haven't acted provide the s e c the ability to initiate these actions and so sign and sail j s and they might say there is a fundamental flaw in that that relates to the separation of powers and look if they want to pursue that claim they definitely can in the king get meaningful court there are several paragraphs not did not on this issue it did not bank louisiana did not touch on separation of powers in this context in any cabinet meaning for why it was i can look at the briefing and see what was right but the opinion certainly did not address this in any detail at all i wasn't addressing separation post your honor what i was addressing is why these kind of claims can be channelled through section seventy eight why i can you know doesn't talk about this kind of client being channeled through this isn't that either i am an animal and i'm just you can keep arguing with your wife in your town with me talk about it all going over really free enterprise in some way or cabin ing it when we're talking about these kinds of issues  totally insulated from the president's removal of force that's a different animal to me if it's a different animal than what you can think about is that the ija is he doesn't even need to address the merits of that because each and he could still provide relief on it right the agency doesn't the commission here doesn't have to that wouldn't lend the plaintiffs in that case to get into this or says no no one hundred thousand through a enforcement downforce meant process in an unconstitutional you pointed out a worse thing going through an investigation process with an unconstitutionally appointed could turn into a bad result is we're not going to put you through that you don't have to go through that process to challenge whether the a l j or this in that case the board was properly constitution c is is relative here at the forum is already on the table that's a direct quote from bank of louisiana saying that contact in a different context in a different statute but critically the analysis still applies here with full force if there's powers who has authority to appoint this person and under the funder basin analysis there is nothing that makes a removal challenge separate or histon from any other kind of facial constitutional challenge that could be raised it's still susceptible to all three factors is it capable of meaningful judicial review is it fully collateral to the proceedings which is not because the only reason they can reside and i said it was but there again there was no enforcement proceeding and that had nothing to do with how we collateral it does your honor in a fight if i can just emphasize that point there their claim was the fact that the board exists and can regulate us is the reason why we want to challenge its its constitutionality and so therefore our claim about its constitutionality is wholly collateral to anything else that the board is currently doing because we are not being subjected to anything whereas here their claim against l j is premised on the fact that they are currently in an enforcement proceeding an enforcement proceeding for which congress has allowed to just review soley in the courts of appeals and not in the district courts that's why the foley collateral factor tilts in our favor but even if you didn't think that and some of the other parts of said maybe it's a wash we don't get to that the fact that meaningful judicial reviews available in the courts of appeals and that the agency can bring its expertise under elgin which post dates free enterprise fund to explain that and i just want to clarify my earlier i was not suggesting that i thought this was a case about the jurisdiction of the l j i was response i know it's about the district court i was responding to your contention that trying a case if you will in front of somebody is unconstitutionally a point is ok and you're you're not so you're saying that's not a jurisdictional question and i'm i understand your argument on that but i was just trying to explain that i was responding to your argument i wasn't suggesting the issue before us is that the issue before us is the us through the difference between the statute in bankable as anna and the statute here ok to tell us that because if if we're bound by bank of louisiana that changes things considerably  says no court shall have the power to enjoying essentially anything that the f d i c would do in the the situation of the bank examination here we have an entirely different statute the f c c statute was exclusive jurisdiction the word exclusion the exclusive does not appear anywhere in seventy eight dollars y or any part of the thirty four act finally the thirty four act has a provision commonly known as a savings clause that says jurisdiction i would argue the case law particularly recognizes that in the realm of constitutional questions and in the room a structural constitutional question such as that presented here so the bank of louisiana  read seventy eight why has already been been decided by the united states supreme court for all circuits and we here today are asking this court not to join the in surre true under the at three in factors well actually fights five it's five elements and that's why i took some time to go through that earlier in my argument because they omit the examination of the statute at all they simply jump to the three hearing upon cephas they did i mean alternative holdings are still present and you acknowledge they did go through the elgin factor yes and that in just a law on the statute in the critical point i hope to convey today is the supreme court already cycled through those says that it requires uncommon fortitude for judges to do their duty as face for guardians of the constitution we ask that today that this court do its duty anything anything less is application