Facts of the Case

Provided by Oyez

In April 2016, the Securities and Exchange Commission (SEC) brought an enforcement action against Michelle Cochran, a certified public accountant, alleging that she had failed to comply with federal auditing standards. After a hearing, an SEC administrative law judge (ALJ) agreed that Cochran had violated federal law, fined her $22,500, and banned her from practicing before the SEC for five years. The SEC adopted the ALJ’s decision, and Cochran objected.


Before the SEC could rule on Cochran’s objection, the U.S. Supreme Court decided Lucia v. SEC, in which it held that SEC ALJs are officers of the United States under the Appointments Clause, who must be appointed by the President, a court of law, or a department head. In response to that ruling, the SEC remanded all pending administrative cases for new proceedings before constitutionally appointed ALJs, including Cochran’s.


Cochran filed a lawsuit in federal district court arguing that while Lucia may have addressed one constitutional issue with ALJs, it left uncorrected another problem: because SEC ALJs enjoy multiple layers of "for-cause" removal protection, they are unconstitutionally insulated from the President's Article II removal power. The district court dismissed Cochran’s case for lack of subject-matter jurisdiction based on a reading of the Exchange Act as implicitly stripping district courts of jurisdiction to hear challenges to ongoing SEC enforcement proceedings. A panel of the U.S. Court of Appeals for the Fifth Circuit affirmed, but the Fifth Circuit sitting en banc reversed as to that interpretation of the Exchange Act.


  1. Does a federal district court have jurisdiction to consider claims challenging the constitutionality of the Securities and Exchange Commission’s administrative proceedings?


  1. Federal courts have federal-question jurisdiction to hear constitutional challenges to the structure or existence of the SEC or FTC notwithstanding statutory review schemes set out in the Securities Exchange Act and Federal Trade Commission Act. Justice Elena Kagan authored the majority opinion holding that the Federal Trade Commission Act (in 21-86) and the Securities Exchange Act (in 21-1239) did not preclude district courts’ ordinary subject-matter jurisdiction to hear challenges to those agencies’ structure, procedure, or existence.

    The Court considered three factors, known as the Thunder Basin factors, to determine whether particular claims concerning agency

    action are “of the type Congress intended to be reviewed within th[e] statutory structure,” and thus would preclude district court jurisdiction. The three factors are: (1) Could precluding district court jurisdiction “foreclose all meaningful judicial review” of the claim? (2) Is the claim “wholly collateral” to the statute’s review provisions? (3) Is the claim “outside the agency’s expertise”?

    The Court concluded that all three factors supported the conclusion that district courts retained subject-matter jurisdiction.

    First, preclusion of district court jurisdiction “could foreclose all meaningful judicial review” because Axon and Cochran will lose their rights not to undergo the complained-of agency proceedings if they cannot assert those rights until the proceedings are over.

    Second, the claims are “wholly collateral” to the statutes’ review provisions because challenges to the Commissions’ authority have nothing to do with either the enforcement-related matters the Commissions regularly adjudicate or those they would adjudicate in assessing the charges against Axon and Cochran.

    Finally, the claims are outside the agencies’ expertise because neither specializes in constitutional issues like separation of powers.

    Justice Clarence Thomas authored a concurring opinion to express “grave doubts about the constitutional propriety of Congress vesting administrative agencies with primary authority to adjudicate core private rights with only deferential judicial review on the back end.”

    Justice Neil Gorsuch authored an opinion concurring in the judgment, arguing that he would reach the same conclusion as the majority by applying only 28 U.S.C. § 1331, which establishes federal-question jurisdiction of federal courts.