of the securities exchange act of one nine hundred thirty four to determine whether the defendant exchanges violated their payment for floor rules on the statutory grant of jurisdiction provides the f c c with discretion to decide whether it wants to institute proceedings to consider whether an exchange has violated its rules and particular section one thousand age authorizes the i c c to act and impose sanctions if in the s he sees opinion such action is necessary or appropriate in the public interest thus the f c c is not required to act whenever it receives an allegation that in exchange is violating its rules however it clearly has a statutory jurisdiction to determine that issue and its brief the f c c now agrees that it always has jurisdiction to consider whether an exchange has violated its rules as you saw in the briefing there was some issue about whether the f c c was arguing whether its jurisdiction sprang into existence when it decided to exercise its discretion yes e c has now taken the position that it always has jurisdiction and that concession is dispositive of this appeal and it is consistent with this court ruling from three years ago moreover the f c c has jurisdiction over issues about whether self regulatory organizations meaning exchanges have violated their rules is exclusive to the exchange act in has expertise in how those rules should be applied it made sense that congress wanted the f c c to have exclusive jurisdiction over those issues giving exclusive jurisdiction to the c also further the congressional gold uniformity congress did not want different courts around the country federal courts or state courts to rule on whether s r o has had violated their rules and what their regulatory and rule obligations would be and i'd like to respond briefly to two of the arguments that were made by the f c c and the market makers first contrary to their arguments there is no basis to several times it never points to any alleged ambiguity in the statutory language that fact is determined in the absence of an ambiguity this case is a chevron step one case so to speak and because the statutory language is clear there is no basis to afford any deference to an interpretation by the f c c second b s c c three frames the issue of that's really before this court and argues it does not have jurisdiction over every issue that might arise in the market makers civil action we agree with that position we do not argue that the f c c has jurisdiction to supplant the district court or that it has jurisdiction over every issue that the market makers might raise or that the exchanges might raise in a civil action but the f c c does have jurisdiction over the threshold issue the as he sees jurisdiction is present to determine whether exchanges  violated their rules and if it finds a rules violation the f c c has sanctioning authority over the exchanges and that issue is a threshold issue that made it perfectly appropriate for the district court to send the regulatory organization like the defendant exchanges in this case had violated its rules and because the f c c subsequent order is not consistent with that decision we respectfully request that the court grant our petition and set aside the sees order i'm happy to entertain any questions from the panel would have been to ask them to thank you good morning i may please the court doug cox for nasdaq intervening petitioner my colleague said the issue before the court today is simple what the court order the f c c to do what the court directed to do the last time i'll make just two brief point first it's clear that the f c c in the opinion has before you today denied that it had jurisdiction it did not say we're exercising discretion it said we don't have jurisdiction secondly your honor as my colleague points out in the briefing before this court the f c c has tried to smooth if you will some of the rough edges of the f c c actual pinion under the cherry doctrine that won't work they have to defend the esses opinion as written and that opinion directly contradicts what this court said thank  please the court martin to tar on behalf of the securities and exchange commission this case presents one distinct issue whether the commission erred when it concluded that it did not have jurisdiction over the market makers petition the text of exchange act section one hundred eighty one resolves that issue through that provision congress authorized the commission to sanction exchanges for rule violations when the commission determined that doing so would serve the public interest for them so your honor the commission always has jurisdiction under one thousand age one as the exchanges note but that's in its regulatory capacity we take no position on whether a state or federal court would have jurisdiction of the market makers private claims as best i understand the exchanges position it's essentially a field preemption argument frest up in jurisdictional close because the commission regulates the exchanges and mannish eate disciplinary proceedings the exchanges seem to be urging that any private lawsuit related to potential rule violations falls under the commission's jurisdiction even if the commission has not instituted proceedings in its regulatory capacity and even if the lawsuit raises contracting restitution claims the commission does not resolve but nothing in exchange act section one nine hundred eighty one extends the commission's jurisdiction to those circumstances and a court whether it be state or federal not an agency traditionally decides preemptions preemption issues if the exchanges are preempted or are marilee's than a court will so hold at for example the rule twelve hundred sixty age but this court should not approve the exchanges attempt to prematurely terminate this litigation the exchanges in essence frame this case in terms of channeling the channeling inquiry as to whether it is fairly discernable from the statute that congress intended the plaintiffs to proceed exclusively through the statutory review scheme but the critical point in channeling is that the plaintiffs and their claims are channeled to an administrative form but here the exchanges want to leave the plaintiffs behind because now they acknowledge that the commission quote and this is from see those briefs on page seventeen is the only party that can prove a proceeding alleging a national exchange rule violation but that's not how channeling works to the contrary as the supreme court explained in the finley decision reciting the brief a grant of jurisdiction over claims involving particular parties does not itself can for jurisdiction over additional claims by or against different parties the exchanges approach which i want to make clear is unprecedented and flipped that face in principle on its head i am aware of no case in which a court has ruled that certain claims must be channelled through an agency even if the plaintiffs are not proper parties to the proceedings and while in our brief we made very clear that we made that we took no position on the merits of the market makers claims i would note that several of the cases cited by the exchanges on the merits do inform the jurisdictional question so serious seven from the d c circuit sparta surgical from the ninth circuit and the minutes and the recent city of providence decision from the second circuit were all decided at the twelve p sixty age by a district court not the commission and all involved at their core allegedly rules violations a contrary decision by this court would at a minimum be in tension with those decisions and if i could i would also like to speak on the practical implications of the exchanges position the exchanges are asking this court to create a whole new category of extra statutory litigation but frankly the commission does not have procedures for this new category of litigation so we have to develop a system probably through the promulgated rules through notice and comment addressing these sorts of claims we have to address issues like what is the time limit to file to shane what would a petition look like what are the page limits for the petition for the proceedings be stayed while the commission is examining the petition what would briefing look like so these are all sorts of complicated issues that would have to be resolved if the exchanges position is correct and i'd also like to note that the position taken by the exchanges could lead to further potentially staggering consequences in the past decade the commission has created a what's called the t c r review system tips complaints and referrals that allows the public to inform the commission through a particular process of potential rules violations or statutory violations now page eleven of nasdaq sprit and page nine of nasdaq's reply brief suggests that there could be federal appellate review of the commission's denial to exercise enforcement discretion i'd like to make clear that there are over sixteen thousand tips complaints reviews filed with the commission a year sixty of those and with sixteen thousand five hundred tips complaints or referral to filed with the commission under the exchanges view it would potentially be the commission's obligation to issue a decision deciding whether to initiate enforcement proceedings on those tips complaints  referrals that raise in forstmann discretion issues and i would also note under the exchanges view the floodgates would open not only for the commission but also for a federal courts of appeals like this one because under the under the exchanges few there would be federal review under section twenty five a one of the exchange act in terms of chandlery i don't believe there is any daylight between the position the commission is taking now on appeal and its position order as we do on appeal and as we did in the order we distinguish this panel's prior case because it involves exhaustion the market makers evidentiary burden to demonstrate that an exception to exhaustion was allowed and that simply isn't at issue here i'd also like to know that the exchanges while they pull out particular clauses from this court's prior opinion and put them in their brief to show that this court clearly concluded that it had jurors that the commission had jurisdiction over the market makers claims read broadly i think that would be wholly inconsistent with the rest of the court's decision talking about exhaustion and its exceptions which would be wholly irrelevant if the commission's work if the commission were correct that this court clearly decided the statutory issue of the commission strips section on page twenty eight of our brief we cite the brush university case i think that's particularly instructive and might provide a roadmap for this court to affirm the commission's order in that case the issue was whether pure research costs are compensable under the medicare act a prior a panel decision of this court said those costs are compensable and it made that decision unquote the plain language of the statute which is also the language this court used in its prior decision now the department of health and human services then said no those costs aren't compensable and in russia university the court concluded that it should defer to the agency's position and i think on page seven hundred that i'm page seven hundred fifty nine of that opinion there's a key quote that could be relevant here it says a quote here and a quote there are ultimately less important than the core holding of the case and unless or any questions my final point would be that i suspect it is not very often that a commission or an agency attorney comes before you and says the commission doesn't have jurisdiction to the contrary i think some courts and some commentators have accused agencies of jurisdictional overreach this is precisely the opposite scenario in the commission presented that's near and why was true in a carefully constructed opinion that we asked the court to affirm on appeal i'm happy to please the court my name is stephen the del i represent the intervening respondents and i have just two points i'd like to make this morning in the very brief time allotted to me first in the reference to persuade this court that the commission has the sole authorisation to prosecutor adjudicate the issues raised in this case the exchanges continually misdescribe are causes of action as quote claims against the exchanges for the violation of their own rules thereby suggesting that our claims are somehow derivative of the thirty four reps the exchange is going to argue that the thirty four act has no private right of action and as a result the commission is the commission's sole province to pursue these matters however all of our causes of action are state law common law claims and as recently as two years ago in the managed city in the us supreme court ruled that even where the allegations of a complaint may in fact support a federal claim the plaintiff may nevertheless choose to pursue state kaamelott claims even in state court furthermore six years ago in a similar case this court in why god rule that even where the relevant federal statute does not provide a private right of action nevertheless a plaintiff may pursue a cause of action under state common law even where the facts of the basement that their claim is based on are the same facts that may support a claim under the statute the exchanges have no answer to those two holdings my second point and i think for my clients the most critical point and perhaps the most critical point in this entire case is the following everyone in this case concedes that the commission does not have water is ation to war damages or make my clients or any victims of the commercial misdeeds of the exchanges whole by arguing that my clients should not be allowed to vindicate their rights  state or federal court but rather should be shunted to a forum that cannot award damages and cannot make my clients whole or or cannot make all the victims of any commercial misdeeds by the exchanges the exchanges are asking for something unique in american jurisprudence because if they can persuade this court that the victims of commercial misdeeds by the exchanges can only pursue their complaints in a form that by definition cannot award them damages or make them whole will be for all practical purposes absolute immunity for their commercial wrongdoing and they would fly in the face of generations of federal precedent which restrictive immunity for the exchanges to only purely regulatory conduct but the exchanges use the language of exhaustion and they use the language of preemption but the ultimate result of where they wish to leave this court is to is to absolute immunity cloaking all of their commercial thank you your honor just a few brief response points when mr tarr was talking about field preemption he again framed the issue and correctly this case is not about whether the f c c has jurisdiction over all of the market makers claims for the entire civil action this case is about the issue of whether or not the as he see has jurisdiction over the issue as to whether or not as far as including the defendant exchanges in this case have violated their rules m toral also spoke about the tips complaints in the firm hotline and i think that's an important point the petition at its essence in this case is simply a tip to the f c c the market makers are saying we think the c once it receives the tip or the petition can decide whether it wants to institute a disciplinary proceeding and explore whether the exchanges of violated their rules we're not asking this court to create a cottage industry of there is appellate review down the road really depends on what the f c c does and there's no way to answer that question until the f c c recognizes its jurisdiction and makes a determination as to whether or not it wants to take action what form could you that aggrieved party would they would be in the market makers would be a no different situation than we are or a party agreed we have a right to appeal to a court of appeals from the type  just briefly touching upon mr bell's comments he tried to say again but their claims are not about violations of the exchanges rules this court clearly in two thousand and fifteen disagreed with that and it said  page six ninety nine of its opinion we agree with the district court the plaintiffs seek to enforce defendant's own rules promulgated under the exchange that issues already been decided in fact the district court took another look at that issue when it denied the motion  remained of the third case filed by the market makers and this is in the appendix of page sixty thousand and it again said that the plaintiff cause of actions all depend upon a finding that the exchanges of violated their rules while he's trying to reach characterizes claims at the core that's what their claims are about and that's an issue that the f c c has exclusive jurisdiction over those are the only rebuttal comments i had i'm happy answer any wrote i would i would simply say to avoid repetition that the court has already said in so many words the nine hundred eighty one covers the allegations here page seven hundred and all we're asking is for the