Scottsdale Capital Advisors Corp. v. Financial Industry Regulatory Authority, Inc.

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

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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).

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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.

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“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

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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.

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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.

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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)).

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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.

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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.

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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).

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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.

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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.

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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

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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.

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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.

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