IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10396

MICHELLE COCHRAN, 

 Plaintiff - Appellant

v.

SECURITIES AND EXCHANGE COMMISSION; JAY CLAYTON, in his 

official capacity as Chairman of the U.S. Securities and Exchange 

Commission; WILLIAM P. BARR, U. S. ATTORNEY GENERAL, in his 

Official Capacity, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 4:19-CV-66

Before OWEN, Chief Judge, and HAYNES and COSTA, Circuit Judges.

GREGG COSTA, Circuit Judge:

Judicial review of Securities and Exchange Commission proceedings lies 

in the courts of appeals after the agency rules. 15 U.S.C. § 78y. This appeal 

asks whether a party may nonetheless raise a constitutional challenge to an

SEC enforcement action in federal district court before the agency proceeding

ends. All five courts of appeals to address the question have held that a party 

cannot circumvent the SEC judicial review statute that way. Bennett v. SEC, 

844 F.3d 174 (4th Cir. 2016); Hill v. SEC, 825 F.3d 1236 (11th Cir. 2016); Tilton 

v. SEC, 824 F.3d 276 (2d Cir. 2016); Jarkesy v. SEC, 803 F.3d 9 (D.C. Cir. 

United States Court of Appeals

Fifth Circuit

FILED

August 11, 2020

Lyle W. Cayce

Clerk

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2

2015); Bebo v. SEC, 799 F.3d 765 (7th Cir. 2015). Just last year we held the 

same for the Federal Deposit Insurance Corporation’s judicial review provision 

in an appeal raising the separation-of-powers claim asserted in this case. See 

Bank of La. v. FDIC, 919 F.3d 916 (5th Cir. 2019). Bound by Bank of Louisiana

and in accord with the unanimous view of other circuits, we hold that the 

statutory review scheme is the exclusive path for asserting a constitutional 

challenge to SEC proceedings. 

I.

The SEC brought an enforcement action against Michelle Cochran. It 

alleged that Cochran, a CPA, failed to comply with auditing standards in 

violation of the Securities Exchange Act. Under that law, the SEC can initiate

enforcement proceedings in district court, before the Commission, or before an 

administrative law judge. 15 U.S.C. §§ 78d-1(a), 78u(d). The SEC elected to 

proceed before an ALJ. 

While Cochran’s case was pending, the Supreme Court held that SEC 

ALJs are Officers of the United States whom the President, a court of law, or 

a department head must appoint. Lucia v. SEC, 138 S. Ct. 2044, 2049, 2051 

(2018). Before Lucia, SEC staff selected ALJs. Id. at 2050. Following Lucia, 

the SEC reassigned all adjudications to judges whose appointments had, by 

then, been ratified by the Commission.

After the new ALJ took over Cochran’s case, Cochran filed this lawsuit

in district court. She sought to enjoin the enforcement action because although 

there is no longer a problem with how ALJs are appointed, Cochran contends 

there is still a problem with how they can be removed. The constitutional 

problem, in her view, is that the ALJs enjoy multiple layers of “for cause” 

removal protection. See Free Enter. Fund v. Pub. Co. Accounting Oversight 

Bd., 561 U.S. 477, 484 (2010) (holding unconstitutional removal protections for 

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officers of the Pubic Company Accounting Oversight Board). Cochran also 

alleged a due process violation on the ground that ALJs do not follow SEC rules 

and procedures.

The district court dismissed for lack of subject jurisdiction. It concluded

that 15 U.S.C. § 78y provides the exclusive means for asserting these claims 

before an Article III court—in the court of appeals after a final order issues.

After Cochran appealed, a panel of this court enjoined the SEC proceeding 

pending this court’s decision. 

II.

This appeal is not about whether Cochran will have the opportunity to 

press her separation-of-powers claim. She will. It instead asks: Where and 

when? As these are questions of federal court jurisdiction, Congress gets to 

answer them. Sheldon v. Sill, 49 U.S. 441, 442 (1850) (“[T]he disposal of the 

judicial power, except in a few special cases, belongs to Congress; and the 

courts cannot exercise jurisdiction in every case to which the judicial power 

extends, without the intervention of Congress, who are not bound to enlarge 

the jurisdiction of the Federal courts to every subject which the Constitution 

might warrant.”). 

Cochran contends that Congress supplied the answer to the 

jurisdictional issue in the general federal question statute, which allows

district courts to hear cases “arising under the Constitution.” 18 U.S.C. § 1331. 

The SEC counters that the specific review provision for SEC enforcement 

actions displaces the general jurisdiction statute. Section 78y states:

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, within sixty days after the entry of the order, a written petition 

requesting that the order be modified or set aside in whole or in part.

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15 U.S.C. § 78y(a)(1). 

Congress may strip federal courts of jurisdiction explicitly or implicitly. See 

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207 (1994). The SEC argues 

that section 78y, by channeling review directly to the court of appeals, does the 

latter. This type of judicial review scheme divests district courts of jurisdiction 

if the statute evinces a “fairly discernible” intent to limit jurisdiction, and the 

claims at issue are the type that Congress intended the agency to review. Elgin 

v. Dep’t of Treasury, 567 U.S. 1, 9–10 (2012).

A.

The text and structure of the Securities Exchange Act reveal the 

necessary intent to limit district court jurisdiction. Id. Starting with the text, 

the grant of jurisdiction to the aggrieved person’s local circuit or the D.C. 

Circuit only after issuance of a final order implies that other courts lack 

jurisdiction. See Jarkesy, 803 F.3d at 16; Free Enter., 561 U.S. at 489 

(“Generally, when Congress creates procedures designed to permit agency 

expertise to be brought to bear on particular problems, those procedures are to 

be exclusive.”); see also ANTONIN SCALIA & BRYAN A. GARNER, READING LAW:

THE INTERPRETATION OF LEGAL TEXTS 107 (2012) (“[S]pecification of the one 

implies exclusion of the other. . . .”). That suggestion moves into the realm of

certainty (which the caselaw does not even require) when one considers 

another provision declaring that the court of appeals has “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); Jarkesy, 803 F.3d at 16. Other provisions 

set forth exhaustion requirements, the standard of review the court of appeals 

is to follow, and the process for remanding to “adduce additional evidence.” 15 

U.S.C. §§ 78y(c)(1); (a)(4); (a)(5); Jarkesy, 803 F.3d at 16. It would undermine 

those rules if a party could seek review in a district court not constrained by 

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those rules. This comprehensive scheme for a postadjudication appeal straight 

to the court of appeals makes it “fairly discernible that Congress intended to

deny . . . an additional avenue of review in district court.” Elgin, 567 U.S. at 

12. 

The structure of the SEC enforcement scheme provides further evidence

for that conclusion. As mentioned, the SEC has three options when pursuing 

a case. The Commission may adjudicate the case itself, pursue charges before

an ALJ, or file suit in district court. The agency’s statutory power to select the 

forum would be illusory if defendants could file an action in district court.

Jarkesy, 803 F.3d at 17; Tilton, 824 F.3d at 282 n.3. And the provision 

authorizing the SEC to seek injunctive relief in district courts, 15 U.S.C. 

§ 78u(d)(1), would be unnecessary if district courts retained residual

jurisdiction over SEC matters. 

We thus conclude that the SEC judicial review scheme exhibits a general 

intent to deprive district courts of subject matter jurisdiction, joining every 

other circuit that has reached the issue. Bebo, 799 F.3d at 768−69; Jarkesy, 

803 F.3d at 16−17; Tilton, 824 F.3d at 281−82; Hill, 825 F.3d at 1242−45; 

Bennett, 844 F.3d at 181−82; see also Bank of La., 919 F.3d 916, 923 (5th Cir. 

2019) (citing each of the other circuits’ cases with approval while analyzing the 

FDIC judicial review provision). 

B.

This general intent to displace district court jurisdiction does not end the 

matter. We must still assess whether Congress intended to funnel the kind of

claim Cochran asserts through the statutory review scheme. Thunder Basin, 

510 U.S. at 212–16. This is where Cochran pushes back on the dismissal of 

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her complaint, arguing that federal court review of her separation-of-powers

claim need not wait for agency adjudication.1

We assume Congress did not intend a claim to go through a statutory 

review scheme it created for an agency only when: (1) administrative 

proceedings would “foreclose all meaningful judicial review”; (2) “the suit is 

wholly collateral to a statute’s review provisions”; and (3) “the claim[] [is]

outside the agency’s expertise.” Free Enter., 561 U.S. at 489. These three 

factors overlap, but each provides evidence of whether Congress intended 

district courts or the SEC to get first crack at a claim. See Jarkesy, 803 F.3d at 

22 (discussing overlap between the first and second factors). Under Bank of 

Louisiana, Cochran cannot prevail under this inquiry. 

As we find Bank of Louisiana controlling, before marching through its 

analysis of the three Thunder Basin factors we address Cochran’s attempts to 

distinguish it. She first points out that the FDIC review provision provides an 

even stronger case for displacement of general federal question jurisdiction

than does its SEC analogue. That is true; the FDIC statute says “no court shall 

have jurisdiction to affect by injunction or otherwise the issuance or 

enforcement of any notice or order under [12 U.S.C. §§ 1818, 1831o, or 1831p1], or to review, modify, suspend, terminate, or set aside any such notice or 

order.” 12 U.S.C. § 1818(i)(1). Bank of Louisiana observes that this language 

might explicitly preclude jurisdiction. 919 F.3d at 922–23. But it then decides

to nevertheless resolve the case under the “implicit preclusion analysis,” which 

includes the three Thunder Basin factors. Id. at 923 (“The parties and the 

1 Because she presents the removal-power claim as her best case for district court 

jurisdiction, we focus on it in addressing the Thunder Basin factors. It follows from our 

conclusion that the district court cannot hear the removal-power claim that it also cannot 

hear the due process claim which is even more procedurally intertwined with agency action. 

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district court addressed the question presented under the implicit preclusion 

analysis, and we therefore do the same.”). When conducting that analysis, last 

year’s decision saw no relevant difference between the FDIC and SEC 

statutory schemes; it repeatedly found support for its holding in SEC cases 

from other circuits. See id. at 923−930 (quoting Bennett, 844 F.3d at 186−87; 

Hill, 825 F.3d at 1249−51; Tilton, 824 F.3d at 286−90; Jarkesy, 803 F.3d at 

13−14, 16−17, 19−22−23, 28−29; Bebo, 799 F.3d at 767, 773).2 

If the difference in statutes is not a basis for avoiding Bank of Louisiana, 

Cochran contends that her separation-of-powers claim is. On her telling, the 

bank suing the FDIC was asserting run-of-the-mill due process claims rather 

than challenging the very authority of ALJs to act. But Bank of Louisiana also 

involved a “separation-of-powers challenge to the ALJ.” 919 F.3d at 930. We 

held that claim should be channeled through the postadjudication review 

scheme even though it “does not directly implicate the agency’s expertise in the 

way . . . other constitutional claims do.” 919 F.3d at 930 (citing Jarkesy, 803 

F.3d at 28; Hill, 825 F.3d at 1250–51; Tilton, 824 F.3d at 289). 

What was the Bank of Louisiana separation-of-powers claim? The same 

one brought here: a challenge to the constitutional authority of the ALJ. We 

noted the bank was asserting the same constitutional claims in the district 

court lawsuit that it had asserted in the agency proceeding. 919 F.3d at 921 

(citing Bank of La., FDIC-12-489b, FDIC-12-479k, 2016 WL 9050999, at *11-

13 (Nov. 15, 2016). Among those was a claim that the FDIC “ALJ was not 

properly appointed under the Appointments Clause and the ALJ’s tenure 

protections violate separation of powers principles.” Bank of La., 2016 WL 

2 Even if Bank of Louisiana’s analysis of the Thunder Basin factors were an 

alternative holding, it would still bind us. United States v. Reyes-Contreras, 910 F.3d 169, 

179 n.19 (5th Cir. 2018) (en banc).

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9050999, at *13; see also 919 F.3d at 921 (recognizing that the agency rejected 

the argument that the “ALJ was unconstitutionally appointed”). Indeed, we 

noted that the appeal of the agency proceeding had to be remanded after the 

Supreme Court decided Lucia—the principal case Cochran relies on for her 

separation-of-powers claim. Id. 

As it must, the dissent recognizes that Bank of Louisiana twice 

“mentioned the structural claim.” Dissenting Op. at 2. But it then dismisses 

the opinion as addressing the separation-of-powers claim only “in passing.” Id. 

That is not how most would characterize devoting an entire paragraph to

deciding whether the bank’s challenge to the ALJ’s constitutional authority 

warranted a different Thunder Basin outcome than the other claims.3 Bank of 

La., 909 F.3d at 931 (disagreeing with the argument that the lack of agency 

expertise involved in deciding a separation-of-powers claim means a district 

court has jurisdiction).4 Regardless of whether one thinks that discussion was 

thorough enough, what cannot be denied is that Bank of Louisiana recognized

the separation-of-powers claim—a Lucia-based challenged to the ALJ’s very 

authority to act—and resolved it. 913 F.3d at 921, 931. That is enough to bind 

us. Stare decisis does not require verbosity. 

3 Bank of Louisiana spends more time discussing the separation-of-powers claim than

this opinion spends specifically discussing the due process claim. See supra note 1. Does 

that mean this decision is not precedent for the due process claim? Allowing judges to decide 

whether to follow caselaw based on how thoroughly they think it decided an issue would 

throw stare decisis into disarray.

4 This paragraph rejecting different treatment for the separation-of-powers claim cited 

other decisions holding that challenges to the constitutional status of ALJs must await 

judicial review until the end of the enforcement action. 913 F.3d at 931 (citing; Hill, 825 F.3d 

at 1239; Tilton, 824 F.3d at 289). Circuits have unanimously reached that result in SEC 

cases raising the identical claim Cochran brings. Bennett, 844 F.3d at 178; Hill, 825 F.3d at 

1239; Tilton, 824 F.3d at 279−80; Bebo, 799 F.3d at 768. Bank of Louisiana’s repeated 

reliance on those decisions further belies the notion that it somehow gave insufficient 

consideration to the separation-of-powers claim it expressly resolved. 

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Cochran’s attempts to distinguish Bank of Louisiana thus flounder. 

That means a prior panel has already done our Thunder Basin work for us. 

We will nonetheless address each factor, summarizing the answer we provided 

last year that stare decisis requires we follow today. 

1.

Meaningful judicial review is available for Cochran’s constitutional 

claims. That opportunity exists when a party can raise its claims to a court of 

appeals following an adverse agency ruling. See Elgin, 567 U.S. at 17

(constitutional claims of bill of attainder and sex discrimination); Thunder 

Basin, 510 U.S. at 215 (due process challenge to Mine Act); Bank of La., 919 

F.3d at 925–28 (due process and removal-power challenge to enforcement 

action). The best illustration of how postadjudication judicial review can 

vindicate separation-of-powers claims is one of the key cases Cochran relies on: 

Lucia v. SEC. The Supreme Court issued that landmark Appointments Clause

ruling in an appeal that followed agency adjudication. Lucia, 138 S. Ct. at 

2049−50. Cochran’s claim can follow the same path.5

Free Enterprise does not counsel otherwise.6 As is true for just about 

every other argument Cochran makes, Bank of Louisiana already rejected this 

5 This factor cannot be looked at from the standpoint of someone who prevails before 

the agency. But see Dissenting Op. at 3–4. If that were the inquiry, then this factor would 

mean nothing. Every type of claim—be it separation of powers, due process, statutory, or 

something else—will escape federal court review when the charged party wins the 

enforcement action. This factor thus must be considered from the standpoint of a party who 

loses before the agency. And because Congress provides postenforcement judicial review 

when a party loses before the agency, no Thunder Basin case involving a pending 

enforcement action has ever held that there will be “no meaningful judicial review.” 

6 Nor does Seila Law LLC v. CFPB, 140 S. Ct. 2181 (2020). The successful removalpower claim in this case was raised as a defense to a district court proceeding brought by the 

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one.7 919 F.3d at 926–27. As our colleagues explained last year, Free 

Enterprise involved an accounting firm that regulators were investigating but 

had not yet charged. Id. at 926 (discussing Free Enter., 561 U.S. at 489–91). 

The SEC judicial review provision does not provide an avenue for a party to 

challenge an investigation (as opposed to an actual enforcement proceeding). 

15 U.S.C. §§ 78y, 7214(h)(2). Consequently, the firm would have had to “incur 

a sanction” to get its constitutional claim before a court via the ordinary SEC 

review scheme. Bank of La., 919 F.3d at 926 (quoting Free Enter., 561 U.S. at 

490). Having to “bet the farm . . . by taking the violative action” is not a 

“‘meaningful’ avenue” for judicial review, so section 78y does not prevent the 

target of an investigation from suing in district court. Free Enter., 561 U.S. at 

490–91. But Cochran, like the bank that sued the FDIC, is “already embroiled 

in an enforcement proceeding”; she does “not have to ‘bet the farm’ to challenge 

agency action. The farm [is] already on the table.” Bank of La., 919 F.3d at 

927. 

Bank of Louisiana’s distinction between an investigation that may never 

reach an ALJ and a pending adjudication that already has is the same one 

every court of appeals has made. See Bennett, 844 F.3d at 186; Hill, 825 F.3d 

at 1243; Tilton, 824 F.3d at 283−84; Bebo, 799 F.3d at 774−75; Jarkesy, 803 

F.3d at 20. Free Enterprise does not allow a party to an enforcement action to 

leapfrog the statutory review scheme. The seemingly anomalous result that a 

party subject to the less onerous agency action of investigation may run to 

agency to enforce a “civil investigative demand.” Id. at 2194; see also 12 U.S.C. § 5562(e)(1) 

(authorizing the CFPB to “file, in the district court of the United States,” a petition to enforce 

a civil investigative demand). So like Free Enterprise, Seila Law did not involve an 

enforcement action. 

7 It is also notable that Elgin, in holding that the party to an adjudication had to raise 

its constitutional claim through the agency-specific review scheme, cited Free Enterprise only 

once and just to lay out the three Thunder Basin factors. Elgin, 567 U.S. at 15.

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federal court while a party that has been charged must wait flows directly from 

the principle that federal court jurisdiction is a matter of statute. Because 

Congress set forth specific judicial review provisions for SEC proceedings, 

allowing recourse to the general grant of federal jurisdiction when there is a 

pending enforcement action would disrupt that scheme. See Thunder Basin, 

510 U.S. at 207−09. There is no scheme for judicial review of SEC 

investigations, so falling back on general federal question jurisdiction does not 

undermine any contrary congressional path.

2.

The second question is whether Cochran’s claims are wholly collateral to 

the SEC review provisions. As we noted in Bank of Louisiana, courts analyzing 

whether a claim is wholly collateral to the administrative scheme have usually 

asked whether the plaintiff’s claim arises as a result of the actions the agency 

took during the challenged proceedings. 919 F.3d at 928−29. Cochran’s 

challenge—that the official adjudicating her claim is unconstitutionally 

insulated from executive control—is “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 928 (quoting Jarkesy, 803 F.3d 

at 23). In other circuits, that alone would be enough to conclude that her claim 

is not wholly collateral to the statutory review scheme. Bennett, 844 F.3d at 

186−87; Tilton, 824 F.3d at 287−88.

If we were to adopt a different approach, also asking whether the 

substance of Cochran’s claims is intertwined with the scheme, Cochran has a 

stronger case. Id. Resolution of the separation-of-powers claim will not depend 

on the record from the adjudication. But even if we were to become the first 

circuit to conclude that this aspect of the wholly collateral question helped

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Cochran on this factor, see id. (explaining that some circuit courts have 

suggested this approach though none have adopted it),8 that would not 

overcome the other two Thunder Basin factors to give the district court 

jurisdiction in spite of the SEC-specific review provisions. See Free Enter., 561 

U.S. at 489−91 (holding that district court had jurisdiction because all three 

Thunder Basin factors favored that result); Bebo, 799 F.3d at 774−75 (rejecting 

district court jurisdiction even after assuming the plaintiff’s claims were 

“wholly collateral” to the scheme). 

3.

The third Thunder Basin factor appears at first blush to also present a 

close call. Purely legal questions that are not interpretations of the agency’s 

statute or regulations—like issues of constitutional law—do not generally 

benefit from agency expertise. See Thunder Basin, 510 U.S. at 215. But the 

Supreme Court’s most recent instruction is that we should not just consider

whether the agency has expertise with respect to the particular claim the 

plaintiff wants to resolve in district court. See Elgin, 567 U.S. at 23; Jarkesy, 

803 F.3d at 28 (explaining that Elgin “clarified . . . that an agency’s relative 

level of insight into the merits of a constitutional question is not determinative” 

on the agency expertise factor). The benefit of agency expertise should instead

be assessed by looking at the overall case, so this factor accounts for the 

possibility that the agency’s resolution of other issues “may obviate the need to 

address the constitutional challenge.” Elgin, 567 U.S. at 22–23; see also FTC 

v. Standard Oil Co. of Cal., 449 U.S. 232, 244 n.11 (1980) (“[T]he possibility 

8 Bank of Louisiana declined to “decide whether focusing on substance over procedure 

is the proper way to apply the wholly collateral factor.” 919 F.3d at 928. Because it is not does 

not change the outcome here either, we likewise decline to decide the issue.

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that Socal’s challenge may be mooted in adjudication warrants the 

requirement that Socal pursue adjudication, not shortcut it.”).9 

The prospect that agency expertise could resolve the case against the 

agency on a nonconstitutional ground is why Bank of Louisiana concluded that 

this third factor did not support exempting even the separation-of-powers 

claim from the exclusive review scheme Congress created. Bank of La., 919 

F.3d at 930 (citing Jarkesy, 803 F.3d at 28; Hill, 825 F.3d at 1250–51; Tilton, 

824 F.3d at 289). That is consistent with the principle that we should reach 

difficult constitutional claims as a last, rather than first, resort. Ashwander v. 

Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring). 

Allowing only separation-of-powers claims to evade the judicial review scheme 

that Congress created would turn constitutional avoidance on its head. See 

Jarkesy, 803 F.3d at 25.

C.

Cochran and the dissent contend that allowing immediate judicial 

resolution of her constitutional claims is the more expedient course. But the 

efficiency of allowing separation-of-powers claims to short-circuit the SEC’s 

statutory review scheme depends on the outcome of the various potential

proceedings. To be sure, requiring the adjudication to run its course before we 

consider her constitutional claim could impose unnecessary costs on Cochran. 

But the costs an individual may face when required to go through a full trial 

before appealing legal issues—including consequences like imprisonment—

usually give way to larger systemic concerns about piecemeal review. See, e.g., 

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981) (listing 

reasons that “a party must ordinarily raise all claims of error in a single appeal 

9 In taking the position that we should create a split with five other circuits, the 

dissent does not consider Elgin when addressing this factor. 

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following final judgment on the merits”). For example, the general prohibition 

on interlocutory appeals requires a party to litigate its whole case before

challenging a constitutionally deficient trial before us. See Jarkesy, 803 F.3d 

at 26 (“[W]hen a district court denies a federal criminal defendant’s pretrial 

motion, that denial ordinarily is not immediately appealable.”). And 

abstention doctrines often prevent parties from seeking immediate vindication 

of constitutional rights in federal court. Jarkesy, 803 F.3d at 26; (citing 

Younger v. Harris, 401 U.S. 37 (1971)). 

Rules against premature judicial intervention recognize that, in many 

scenarios, piecemeal review will prove less efficient. See Cobbledick v. United 

States, 309 U.S. 323, 325 (1940) (explaining that the final judgment rule 

“avoid[s] the obstruction of just claims that would come from permitting the 

harassment and cost of a succession of separate appeals”). Cochran is viewing 

efficiency from the lens of her constitutional arguments being winning ones. 

But what if her claims—and more importantly the claims of other plaintiffs

that will follow if we open the gates to early district court adjudication of 

separation-of-powers challenges to agency proceedings—fail on the merits? 

Then, instead of the one court Congress authorized, three courts would have 

devoted time to the agency matter: (1) the district court preadjudication; (2) 

the court of appeals in its review of the preadjudication challenge, and (3) 

another court of appeals panel in the traditional postadjudication review. Cf. 

Standard Oil, 449 U.S. at 242 (recognizing that “piecemeal review” prior to the 

completion of adjudication “is inefficient and upon completion of the agency 

process might prove to have been unnecessary”). The first two layers of judicial 

review would have imposed costs on the parties and courts and delayed the 

agency proceeding. Also problematic is that allowing judicial review both 

before and after an adjudication would risk review of the same matter in 

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different circuits, a result that would be inefficient, anomalous, and potentially 

mischievous. Cf. Elgin, 567 U.S. at 14 (recognizing that allowing district court 

jurisdiction over challenges to agency proceedings creates the “potential for 

inconsistent decisionmaking and duplicative judicial review”); see also Jarkesy, 

803 F.3d at 30.10 

Another part of the efficiency calculus is what we have already noted: a 

Cochran victory before the ALJ would eliminate the need for any judicial 

review. And even under Cochran’s best scenario from an efficiency standpoint, 

in which she wins the district court suit, appellate review would follow. It is 

not certain that district court litigation, followed by appellate review, would 

produce a quicker resolution than agency adjudication followed by appellate 

review. See Elgin, 567 U.S. at 14 (recognizing that a “double layer of judicial 

review” of agency action can be “wasteful and irrational” (quoting United 

States v. Fausto, 484 U.S. 439, 445 (1988))). 

At the end of the day, however, which system of review is more efficient 

is beside the point. Congress gets to make that policy decision. As Bank of 

Louisiana and every other circuit to consider this question has held, even when 

it comes to separation-of-powers claims Congress opted for court involvement 

only after the end of the agency proceeding. 

* * *

The Thunder Basin analysis does not show that Congress exempted 

Cochran’s claims from the common path for judicial review of agency action—

10 The dissent’s split verdict on the jurisdictional questions highlights the piecemeal 

review that would result if separation-of-powers claims could jump in front of the statutory 

scheme of agency adjudication followed by review in the court of appeals. Judge Haynes 

would allow the removal claim to go forward in the district court, followed by an appeal. 

Meanwhile, judicial review of Cochran’s due process claim would have to wait until the 

agency rules. 

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direct appeal to a court of appeals after the agency rules—that it adopted for 

the SEC. Cochran may raise her removal-power claim before the ALJ and, if 

she loses before the agency, in a court of appeals. She may even be able to get 

her claim all the way to the Supreme Court as Lucia did. But Cochran cannot 

circumvent the statutory review scheme by litigating it now in a federal trial 

court.

The judgment is AFFIRMED. The stay of the SEC proceeding is 

DISSOLVED.

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HAYNES, Circuit Judge, dissenting in part:

I disagree with the majority opinion that Bank of Louisiana v. FDIC, 919 

F.3d 916 (5th Cir. 2019), decided the issue as to the removal proceeding 

challenge here, and I would conclude that Cochran’s claim on this point is not 

the type over which Congress intended to limit judicial review.1 Accordingly, 

I respectfully dissent. 

I. Whether Bank of Louisiana Controls

I do not think that Bank of Louisiana controls because it did not address 

a structural claim. The opinion there did not squarely consider whether a 

claim concerning the President’s removal power should be analyzed differently 

than other types of constitutional claims. Instead, when it analyzed whether 

the claims at issue were the type over which Congress intended to limit judicial 

review, the court analyzed only the due process and equal protection claims. 

See Bank of La., 919 F.3d at 930 (stating that the Bank’s constitutional claims 

“turned largely on why the agency brought charges”—i.e., the equal protection 

claim—“and on how the hearing was conducted”—i.e., the due process claim). 

The district court opinion similarly focused on those issues stating: “The 

plaintiffs do not question the constitutionality or inherent authority of the 

FDIC. The plaintiffs do not question the procedures of the FDIC. Instead, the 

plaintiffs attack the motives underlying the FDIC’s decision to initiate the 

proceedings.” Bank of La. v. FDIC, No. CV 16-13585, 2017 WL 3849340, at *6 

(E.D. La. Jan 13, 2017).

1 By contrast, I think the due process claim is intertwined and, therefore, I concur 

that the district court lacked jurisdiction over it. Cochran asserts that she has been denied 

due process because the SEC has failed to comply with the deadlines prescribed in applicable 

statutes and regulations. As we held in Bank of Louisiana, claims alleging “irregularities” 

during an enforcement proceeding are not wholly collateral, either procedurally or 

substantively. See 919 F.3d at 928–29. 

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The majority opinion here, however, contends that Bank of Louisiana

addressed the separation-of-powers claim. Maj. Op. 7. In Bank of Louisiana, 

this court mentioned the structural claim twice in passing: it first noted that 

the ALJ’s opinion addressed, among other things, a separation-of-powers claim 

and later stated that “the Bank’s separation-of-powers challenge to the ALJ 

does not directly implicate the agency’s expertise.” Bank of La., 919 F.3d at 

926, 930. But our court neither analyzed the separation-of-powers claim nor 

discussed whether structural claims should be treated differently than other 

constitutional claims.2 Indeed, our court never considered whether the 

structural nature of a claim might bear on the jurisdictional analysis. 

Importantly, jurisdictional issues addressed sub silentio are generally not of 

the nature that constitutes binding precedent. Pennhurst State Sch. & Hosp. 

v. Halderman, 465 U.S. 89, 119 (1984). Because Bank of Louisiana was 

addressing a different statute and failed to address a key point that is relevant 

to this case, I conclude that it does not mandate the decision here. 

II. Whether Congress Intended to Limit Judicial Review

I also disagree with the majority opinion’s conclusion that Cochran’s 

removal claim is the type over which Congress intended to limit jurisdiction. 

To make this determination, courts look to the three Thunder Basin factors, 

under which “we presume that Congress does not intend to limit jurisdiction 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 Enter. Fund v. Pub. Co. Accounting 

Oversight Bd., 561 U.S. 477, 489 (2010) (quoting Thunder Basin Coal Co. v. 

Reich, 510 U.S. 200, 212–13 (1994)).

2 It is not, as the majority opinion contends, a matter of verbosity v. succinctness. It 

is a matter of whether the issue here was addressed. 

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 A. Meaningful Judicial Review

I conclude that precluding district court jurisdiction would likely 

foreclose all meaningful judicial review. There are some differences between 

this case and Free Enterprise Fund, since Cochran need not expose herself to 

additional liability under the circumstances of this case. Nonetheless, she 

must continue to participate in an adjudicative system that may well be 

constitutionally illegitimate depending on the determination of the removal 

claim. As a result, this case is not analogous to Thunder Basin or Elgin v. 

Department of Treasury, 567 U.S. 1 (2012). In those cases, the parties to an 

administrative proceeding challenged the constitutionality of a substantive 

statute that gave rise to an administrative action; they did not challenge the 

constitutional grounding of the agency overseeing the proceedings. See

Thunder Basin, 510 U.S. at 203–204 (challenging the Mine Act and its 

regulations but not the overseeing administrative agency’s structure); Elgin, 

567 U.S. at 6–7 (challenging statutes that require men to register for the draft 

and make failure to do so a bar from federal employment). Here, Cochran does 

not allege that the Exchange Act is unconstitutional; she instead asserts that 

the ALJ who oversees the proceeding against her enjoys unconstitutional 

removal protection. 

As a result, Cochran finds herself in a lose–lose situation in front of the 

SEC. Of course, she loses if the SEC imposes a sanction. In that case, she 

(now an aggrieved party) could challenge both the substantive securities 

determination and the constitutional issues in federal court. See 15 U.S.C. 

§ 78y. But if she wins in front of the SEC and no sanction is imposed, she will 

lose the opportunity to have a court consider her now-moot removal challenge, 

all while having been subject to a potentially unconstitutional proceeding. See

Tilton v. SEC, 824 F.3d 276, 290 (2d Cir. 2016) (“[T]he Commission could rule 

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that the appellants did not violate the [securities laws], in which case the 

constitutional question would become moot.”). 

I conclude that cases concerning the President’s removal powers (or 

similar fundamental structural concerns) are different than those where a 

party to an administrative proceeding argues that the statute they have 

allegedly violated is unconstitutional. In more typical cases, winning on the 

statutory claim “obviate[s] the need to address the constitutional challenge.” 

Elgin, 567 U.S. at 22–23; see also FTC v. Standard Oil Co., 449 U.S. 232, 244 

& n.11 (1980). But more is at stake here. A favorable outcome from Cochran’s 

administrative proceeding would not obviate the need to address her removal 

challenge; it would instead eliminate any opportunity for her challenge to be 

heard. I do not think that the law requires Cochran to be subjected to an 

adjudicative process in front of an officer who may not have constitutional 

authority to decide her case, leaving her without recourse if she successfully 

defends her case. See generally Seila Law LLC v. Consumer Fin. Prot. Bureau, 

140 S.Ct. 2183, 2197–2207 (2020) (discussing case law on the President’s 

removal power and determining that the CFPB Director’s for-cause removal 

protections violated the Constitution’s separation-of-powers doctrine). I do not, 

at this point, conclude what the correct answer to this challenge is. Compare 

Collins v. Mnuchin, 938 F.3d 553, 588 (5th Cir. 2019) (en banc) (addressing 

removal issue under HERA), cert. granted, 2020 WL 3865248 (U.S. July 9, 

2020) (mem.) (Nos. 19-422 & 19-563), with Humphrey’s Ex’r v. United States, 

295 U.S. 602, 629 (1935) (upholding the Federal Trade Commission’s structure 

and rejecting removal-power challenge). But I think the challenge here is 

relevant. For these reasons, I would hold that precluding jurisdiction could 

foreclose all meaningful judicial review of Cochran’s removal claim.

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 B. Collateral Nature of the Claim

I next consider whether Cochran’s removal claim is wholly collateral to 

the Exchange Act’s administrative review scheme. Case law does not make 

clear whether courts should focus on the procedural relationship—whether the 

claim is “inextricably intertwined” with the enforcement proceeding—or the 

substantive relationship—whether Cochran’s claim is “substantively 

collateral” to the enforcement proceeding. Bank of La., 919 F.3d at 928. I 

would conclude that the removal claim is collateral either way. 

Unlike in Bank of Louisiana, Cochran’s removal claim does not “allege 

agency misdeeds during the enforcement proceedings themselves.” Id. She 

challenges the structure undergirding the SEC’s administrative system, which 

transcends any particular proceeding. For this reason, I would conclude that 

her claim is not intertwined with the merits of the proceedings against her.

Additionally, in Free Enterprise Fund, the Court determined that the 

petitioners’ claims were collateral to the administrative proceedings because 

the petitioners “object[ed] to the Board’s existence, not to any of its auditing 

standards.” 561 U.S. at 490. Cochran’s removal claim similarly challenges the 

ALJs’ existence within their current structure. She does not challenge the 

securities laws underlying the administrative proceedings. For this reason, 

her removal claim is substantively collateral as well.

 C. Agency Expertise 

Finally, on whether Cochran’s removal claim is outside the SEC’s 

competence and expertise, Free Enterprise Fund is again instructive. There, 

the Court determined that the claims at issue were outside the Commission’s 

competence and expertise, specifically because the claims did not call for 

subject-matter expertise or “technical considerations of agency policy.” Free 

Enter. Fund, 561 U.S. at 491 (brackets and internal quotation marks omitted). 

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Here too, Cochran’s removal claim does not call for administrative expertise, 

and she has not asked the court to delve into a fact-bound inquiry or into any 

issues of securities law. See id. Instead, Cochran asks the district court to 

answer a constitutional question that courts are well positioned to address. 

Thus, I would conclude that the claim here, like the one in Free Enterprise 

Fund, is outside the SEC’s expertise.

In sum, our court in Bank of Louisiana did not directly answer whether 

structural claims should be considered different than other types of 

constitutional claims, and I accordingly do not think that Bank of Louisiana

compels any particular outcome here with respect to the removal claim. After 

analyzing Cochran’s claims under the Thunder Basin factors, I would conclude 

that her structural removal claim is not the type over which Congress intended 

to limit jurisdiction. For these reasons, I respectfully dissent.

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