Respondents Brief — Alpine Securities Corporation, Petitioner v. Financial Industry Regulatory Authority, et al.

Supreme Court briefApr 25, 2025

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No. 24-904

IN THE

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_____________________________

ALPINE SECURITIES CORPORATION,

Petitioner,

FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC.,

Respondent,

UNITED STATES OF AMERICA,

Intervenor-Respondent.

_____________________________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The District Of Columbia Circuit

_____________________________

BRIEF IN OPPOSITION

_____________________________

MICHAEL W. MCCONNELL

STEFFEN N. JOHNSON

WILSON, SONSINI,

GOODRICH & ROSATI, P.C.

1700 K Street, N.W.

Washington, D.C. 20006

(202) 973-8800

AMIR C. TAYRANI

Counsel of Record

ALEX GESCH

MAX E. SCHULMAN

AMALIA REISS

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

atayrani@gibsondunn.com

Counsel for Respondent

QUESTIONS PRESENTED

Alpine Securities Corporation (“Alpine”) sought

preliminary-injunctive relief to prevent its possible

expulsion from membership in the Financial Industry

Regulatory Authority, Inc. (“FINRA”)—a private selfregulatory organization that oversees its brokerdealer members—before the opportunity for plenary

review by the Securities and Exchange Commission.

Despite obtaining that relief, Alpine asks this Court

to grant interlocutory review to consider additional,

broader arguments—several of which the D.C. Circuit

did not reach or held that Alpine forfeited below. The

questions presented are:

1. Whether certain language in Axon Enterprise,

Inc. v. FTC, 598 U.S. 175 (2023), means that participation in an allegedly unconstitutional proceeding,

without more, necessarily constitutes irreparable

harm for purposes of preliminary-injunctive relief.

2. Whether the structure and enforcement powers of FINRA, a private corporation carrying on a centuries-old tradition of securities self-regulation, violate Article II’s appointment and removal requirements or the private-nondelegation doctrine.

RULE 29.6 STATEMENT

Pursuant to this Court’s Rule 29.6, undersigned

counsel state that FINRA is a not-for-profit, non-stock

Delaware corporation, and no publicly held company

has a 10% or greater ownership in it.

iii

RULE 14.1(B)(iii) STATEMENT

In addition to the proceedings identified in the petition, the following proceeding is directly related to

the case in this Court:

Alpine Sec. Corp. v. FINRA, No. 24A808 (U.S.)

(application for a stay denied Mar. 14, 2025).

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ........................................i

RULE 29.6 STATEMENT .......................................... ii

RULE 14.1(b)(iii) STATEMENT ............................... iii

TABLE OF AUTHORITIES ....................................... vi

STATEMENT .............................................................. 1

A. The Securities Industry’s Tradition

Of Self-Regulation ...................................... 2

B. The Exchange Act’s Preservation Of

Self-Regulation ........................................... 3

C. FINRA ........................................................ 5

D. Alpine ......................................................... 7

E. The D.C. Circuit’s “Narrow”

Decision Below ......................................... 11

REASONS FOR DENYING THE PETITION .......... 13

ALPINE’S AXON QUESTION DOES NOT

IMPLICATE A CIRCUIT SPLIT AND IS

RECENTLY DENIED, POORLY PRESENTED,

AND MERITLESS .............................................. 13

II. ALPINE’S CONSTITUTIONAL QUESTION

DOES NOT WARRANT REVIEW ......................... 21

A. Alpine’s Article II Claims Were Not

Addressed Below, Are Concededly

Not Subject To A Split, And Are

Meritless ................................................... 21

B. Alpine’s Private-Nondelegation

Claim Does Not Implicate A Split

And Is Meritless ....................................... 27

III. THERE IS NO REASON TO HOLD THIS

PETITION......................................................... 32

CONCLUSION .......................................................... 34

TABLE OF AUTHORITIES

Page(s)

Cases

Alpine Sec. Corp. v. FINRA, No. 24A808,

2025 WL 824410 (U.S. Mar. 14, 2025) ...... 2, 13, 16

Aslin v. FINRA,

704 F.3d 475 (7th Cir. 2013) ................................ 31

Axon Enter., Inc. v. FTC,

598 U.S. 175 (2023) ...................... 12, 13, 14, 15, 16

17, 18, 19, 20, 21, 29

Black v. SEC,

125 F.4th 541 (4th Cir. 2025) .............................. 30

Blankenship v. FINRA,

2024 WL 4043442 (E.D. Pa. Sept. 4, 2024) ......... 30

Bowsher v. Synar,

478 U.S. 714 (1986) .............................................. 20

Bunting v. Mellen,

541 U.S. 1019 (2004) ............................................ 29

Camreta v. Greene,

563 U.S. 692 (2011) .............................................. 29

Cohens v. Virginia,

19 U.S. (6 Wheat.) 264 (1821) .............................. 21

Collins v. Yellen,

594 U.S. 220 (2021) .............................................. 20

Consumers’ Rsch. v. FCC,

109 F.4th 743 (5th Cir. 2024) ........................ 32, 33

Currin v. Wallace,

306 U.S. 1 (1939) .................................................. 30

vii

Cutter v. Wilkinson,

544 U.S. 709 (2005) .............................................. 21

Del. State Sportsmen’s Ass’n v. Del. Dep’t of Safety

& Homeland Sec.,

108 F.4th 194 (3d Cir. 2024) ................................ 15

Dep’t of Transp. v. Ass’n of Am. R.R.s,

575 U.S. 43 (2015) ................................................ 26

Fiero v. FINRA,

660 F.3d 569 (2d Cir. 2011) ................................... 7

First Jersey Sec., Inc. v. Bergen,

605 F.2d 690 (3d Cir. 1979) ................................. 28

Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) .................................. 24, 26, 27

Garland v. Cargill,

602 U.S. 406 (2024) .............................................. 19

Gray v. Jennings, No. 24-309,

2025 WL 76443 (U.S. Jan. 13, 2025) ................... 15

Guedes v. ATF,

140 S. Ct. 789 (2020) ............................................ 19

John Doe Co. v. CFPB,

849 F.3d 1129 (D.C. Cir. 2017) ............................ 18

Kerpen v. MWAA,

907 F.3d 152 (4th Cir. 2018) ................................ 23

Kim v. FINRA,

698 F. Supp. 3d 147 (D.D.C. 2023) ...................... 30

Leachco, Inc. v. CPSC, No. 23A124,

2023 WL 5728468 (U.S. Aug. 7, 2023) ................ 16

Leachco, Inc. v. CPSC,

103 F.4th 748 (10th Cir. 2024) .... 14, 15, 17, 18, 20

viii

Leachco, Inc. v. CPSC, No. 24-156,

2025 WL 76435 (U.S. Jan. 13, 2025) ............. 14, 15

Lebron v. Nat’l R.R. Passenger Corp.,

513 U.S. 374 (1995) .................................. 22, 25, 26

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .............................................. 21

Lucia v. SEC,

585 U.S. 237 (2018) .................................. 22, 24, 25

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Ware, 414 U.S. 117 (1973) ..................................... 3

Monsanto Co. v. Geertson Seed Farms,

561 U.S. 139 (2010) .............................................. 19

NHBPA v. Black,

107 F.4th 415 (5th Cir. 2024) ............ 22, 28, 31, 33

NLRB v. Noel Canning,

573 U.S. 513 (2014) .............................................. 32

OBB Personenverkehr AG v. Sachs,

577 U.S. 27 (2015) ................................................ 18

Oklahoma v. United States,

62 F.4th 221 (6th Cir. 2023) ................................ 28

R.H. Johnson & Co. v. SEC,

198 F.2d 690 (2d Cir. 1952) ................................. 28

Riley v. St. Luke’s Episcopal Hosp.,

252 F.3d 749 (5th Cir. 2001) ................................ 23

Saad v. SEC,

873 F.3d 297 (D.C. Cir. 2017) ................................ 3

Scottsdale Cap. Advisors Corp. v. FINRA,

844 F.3d 414 (4th Cir. 2016) .................................. 6

SEC v. Alpine Sec. Corp.,

413 F. Supp. 3d 235 (S.D.N.Y. 2019) ..................... 8

Seila Law LLC v. CFPB,

591 U.S. 197 (2020) .............................................. 20

Silver v. NYSE,

373 U.S. 341 (1963) ................................................ 3

Sorrell v. SEC,

679 F.2d 1323 (9th Cir. 1982) .............................. 28

Space Expl. Techs. Corp. v. NLRB,

129 F.4th 906 (5th Cir. 2025) .............................. 15

Spring Creek Rehab. & Nursing Ctr. v. NLRB,

2024 WL 4690938 (D.N.J. Nov. 6, 2024) ............. 15

Sunshine Anthracite Coal Co. v. Adkins,

310 U.S. 381 (1940) ........................................ 30, 31

Todd & Co. v. SEC,

557 F.2d 1008 (3d Cir. 1977) ......................... 28, 33

United States v. NASD,

422 U.S. 694 (1975) .............................................. 31

United States v. Rock Royal Co-op.,

307 U.S. 533 (1939) .............................................. 30

United States v. Solomon,

509 F.2d 863 (2d Cir. 1975) ................................... 3

United States ex rel. Polansky v. Exec. Health

Res., Inc., 599 U.S. 419 (2023) ............................. 27

United States ex rel. Stone v. Rockwell Int’l Corp.,

282 F.3d 787 (10th Cir. 2002) .............................. 23

Va. Mil. Inst. v. United States,

508 U.S. 946 (1993) .............................................. 19

Walmsley v. FTC,

117 F.4th 1032 (8th Cir. 2024) (Oct. 10,

2024) ............................................................... 22, 28

YAPP USA Auto. Sys., Inc. v. NLRB,

2024 WL 4489598 (6th Cir. Oct. 13, 2024) ... 15, 17,

YAPP USA Auto. Sys., Inc. v. NLRB, No. 24A348,

2024 WL 4508993 (U.S. Oct. 15, 2024) ......... 16, 18

Yates v. United States,

574 U.S. 528 (2015) .............................................. 24

Constitutional Provisions

U.S. Const. art. II, § 2, cl. 2....................................... 24

Statutes

15 U.S.C. § 78c(a)(3)(B) ............................................... 7

15 U.S.C. § 78f(b)(5) .................................................... 4

15 U.S.C. § 78o-3(b)(2) ................................................ 6

15 U.S.C. § 78o-3(b)(4) ................................................ 4

15 U.S.C. § 78o-3(b)(6) ................................................ 4

15 U.S.C. § 78o-3(b)(7) ................................................ 6

15 U.S.C. § 78o-3(b)(8) ................................................ 6

15 U.S.C. § 78s(a) ........................................................ 4

15 U.S.C. § 78s(b) ........................................................ 4

15 U.S.C. § 78s(b)(1) .............................................. 6, 31

15 U.S.C. § 78s(b)(2) .................................................... 6

15 U.S.C. § 78s(c)................................................... 6, 31

15 U.S.C. § 78s(d)(1) .................................................. 31

15 U.S.C. § 78s(d)(2) .............................................. 6, 31

15 U.S.C. § 78s(g)(1)(A) ............................................... 4

15 U.S.C. § 78s(g)(1)(B) ............................................... 4

15 U.S.C. § 78s(g)(1)(C) ............................................... 4

15 U.S.C. § 78s(h) .................................................. 6, 31

15 U.S.C. § 78u(b)........................................................ 7

15 U.S.C. § 78u(d)........................................................ 7

15 U.S.C. § 78u(e) ........................................................ 7

15 U.S.C. § 78y(a)(1).................................................... 7

28 U.S.C. § 1404(a) .................................................... 10

Act of Feb. 25, 1791, 1 Stat. 191 ............................... 25

Pub. L. No. 98-38, 97 Stat. 205 (1983) ........................ 5

Rules

FINRA Rule 9261 ........................................................ 6

FINRA Rule 9311 ........................................................ 6

FINRA Rule 9311(b) .................................................... 8

FINRA Rule 9370(a) .................................................... 7

FINRA Rule 9556(h).................................................... 9

FINRA Rule 9559(r) .................................................... 9

Sup. Ct. R. 10(a) .................................................... 2, 16

Sup. Ct. R. 10(c) ........................................................... 2

Other Authorities

Aditya Bamzai, Tenure of Office and the Treasury,

87 Geo. Wash. L. Rev. 1299 (2019) ...................... 25

17 C.F.R. § 201.401(d) ................................................. 7

xii

4 Fed. Reg. 3564 (Aug. 9, 1939) .................................. 5

H.R. Rep. No. 106, 98th Cong., 1st Sess. (1983) ........ 5

H.R. Rep. No. 1383, 73d Cong., 2d Sess. (1934) ......... 3

The History of NYSE ................................................... 2

Jennifer L. Mascott, Who Are ‘Officers of the

United States’?,

70 Stan. L. Rev. 443 (2018)............................ 24, 25

Gillian E. Metzger, The Constitutional Duty to

Supervise,

124 Yale L.J. 1836 (2015) .................................... 25

Donna M. Nagy, Playing Peekaboo with

Constitutional Law,

80 Notre Dame L. Rev. 975 (2005) ........................ 5

OLC, The Test for Determining ‘Officer’ Status

Under the Appointments Clause (Jan. 16, 2025) 23

Order Approving Proposed Rule Change,

72 Fed. Reg. 42,169 (Aug. 1, 2007) ........................ 5

S. Rep. No. 75, 94th Cong., 1st Sess. (1975) ............... 4

S. Rep. No. 1455, 75th Cong., 3d Sess. (1938) ............ 4

SEC Concept Release Concerning Self-Regulation,

69 Fed. Reg. 71,256 (Dec. 8, 2004) ........................ 2

Stephen M. Shapiro et al., Supreme Court Practice

(10th ed. 2013).......................................... 16, 29, 33

Marianne K. Smythe, Government Supervised

Self-Regulation in the Securities Industry

and the Antitrust Laws,

62 N.C. L. Rev. 475 (1984) ..................................... 2

xiii

Howard C. Westwood & Edward G. Howard, Self

Government in the Securities Business,

17 L. & Contemp. Probs. 518 (1952) ..................... 3

BRIEF IN OPPOSITION

Respondent FINRA respectfully submits that the

petition for a writ of certiorari should be denied.

STATEMENT

Securities industry self-regulation dates to the

Founding, when brokers and dealers met in coffee

shops in New York and Philadelphia to agree on ethical rules and enforcement procedures. When Congress first passed the federal securities laws in the

1930s, it embraced that self-regulatory model, while

strengthening it by making it subject to the extensive

oversight of the Securities and Exchange Commission

(“SEC”).

In challenging that longstanding regulatory structure, Alpine asks this Court to grant interlocutory review in the face of numerous obstacles to certiorari.

In particular, Alpine does not identify any disagreement among the courts of appeals on either of the

questions presented, and every circuit to reach these

questions has rejected Alpine’s positions. Moreover,

the case not only arises in an interlocutory posture,

but the court of appeals did not even reach the appointment and removal issues that Alpine seeks to

raise here—it issued only a “narrow,” “limited,” and

“preliminary” ruling on other points. Pet. App. 28a–

29a. And if all these hurdles to review were not

enough, Alpine forfeited key arguments below, making its petition an exceedingly poor vehicle for considering the questions presented.

Finally, it is telling that Alpine affirmatively opposed FINRA’s earlier request for en banc review, arguing that this case did not warrant that “extraordi-

nary step” because it merely involved “a single enforcement proceeding against a single company,”

without “broader” implications. C.A. Opp. to Reh’g 6–

8. A case so bereft of broader significance is not fit for

certiorari, see Sup. Ct. R. 10(a), (c)—a point confirmed

by the Chief Justice’s recent denial of Alpine’s application for a stay pending disposition of this petition,

2025 WL 824410.

For all of these reasons, certiorari should be denied.

A. The Securities Industry’s Tradition Of

Self-Regulation

“Self-regulation in the securities industry is

nearly as old as the federal government,” dating back

to the Philadelphia Stock Exchange’s founding in

1790. Marianne K. Smythe, Government Supervised

Self-Regulation in the Securities Industry and the Antitrust Laws, 62 N.C. L. Rev. 475, 480 (1984). The

New York Stock Exchange (“NYSE”) is of a similar

vintage; it “traces its origins to the Buttonwood Agreement signed by 24 stockbrokers on May 17, 1792,”

which responded to “the first financial panic in the

young nation” by “set[ting] rules” to “ensure that deals

were conducted between trusted parties.” The History

of NYSE, bit.ly/3F5UyG1; see also SEC Concept Release Concerning Self-Regulation, 69 Fed. Reg.

71,256, 71,257 (Dec. 8, 2004) (recounting self-regulation’s “long tradition in the U.S. securities markets”);

Pet. App. 4a–6a (same).

For most of our Nation’s history, securities exchanges and other self-regulatory organizations disciplined their members with little or no government

oversight. Well into the twentieth century, courts

“unanimously” took the position “that exchange members, as parties to a voluntary contract with the exchange, must abide by their agreement,” and consistently “uph[eld] suspensions or expulsions of stock exchange members for infractions of exchange rules.”

Howard C. Westwood & Edward G. Howard, Self Government in the Securities Business, 17 L. & Contemp.

Probs. 518, 519–21 (1952). “[H]istorically,” exchanges

were “treated by the courts as private clubs” and

“given great latitude by the courts in disciplining errant members.” Silver v. NYSE, 373 U.S. 341, 350–51

(1963).

B. The Exchange Act’s Preservation Of

Self-Regulation

When Congress adopted the modern securities

laws in the 1930s, this “‘traditional process of self-regulation’ was not displaced.” United States v. Solomon,

509 F.2d 863, 869 (2d Cir. 1975) (Friendly, J.) (quoting

H.R. Rep. No. 1383, 73d Cong., 2d Sess. 15 (1934)).

Rather, Congress preserved and built upon the “traditional private governance of exchanges.” Merrill

Lynch, Pierce, Fenner & Smith, Inc. v. Ware, 414 U.S.

117, 127 (1973). Under the Securities Exchange Act

of 1934 (“Exchange Act”), private self-regulatory organizations continue to exercise a vital supervisory

role over their members, subject to comprehensive

SEC oversight. See Saad v. SEC, 873 F.3d 297, 299–

300 (D.C. Cir. 2017).

Currently, nearly 50 separate self-regulatory organizations are registered with the SEC. The Exchange Act, as amended by the Maloney Act of 1938,

provides for national securities associations to register as self-regulatory organizations whose purpose is

to set ethical standards for, and supervise the conduct

of, their broker-dealer members. FINRA is currently

the only registered national securities association,

and, like its predecessor the National Association of

Securities Dealers, Inc. (“NASD”), it serves as the private frontline regulator for its broker-dealer members. 15 U.S.C. § 78o-3(b)(4). Other categories of selfregulatory organizations include national securities

exchanges like the NYSE and registered clearing

agencies like The Depository Trust Company. Id.

§ 78s(g)(1)(A), (B), (C).

The Exchange Act imposes extensive obligations

on self-regulatory organizations. For example, every

exchange and securities association must register

with the SEC, submit its proposed rule changes to the

SEC, and “enforce compliance” with the Exchange Act

and “its own rules” by both its members and persons

associated with its members. 15 U.S.C. § 78s(a), (b),

(g)(1)(A), (B). And the rules of exchanges and securities associations must be “designed to prevent fraudulent and manipulative acts and practices, to promote

just and equitable principles of trade,” and “to protect

investors and the public interest.” Id. §§ 78f(b)(5),

78o-3(b)(6). This framework, refined over nearly a

century, reflects Congress’s consistent preference for

private self-regulation of the securities industry over

exclusively direct governmental regulation, which

would threaten “a pronounced expansion of the organization of the Securities and Exchange Commission,”

with all the attendant “evils of bureaucracy.” S. Rep.

No. 1455, 75th Cong., 3d Sess. 3–4 (1938).

Congress has repeatedly “preserved and strengthened” this “self-regulatory” model. S. Rep. No. 75,

94th Cong., 1st Sess. 23 (1975). For example, in 1983,

Congress eliminated an alternative “SEC only” program of direct SEC regulation for broker-dealers who

were not members of a national securities association

and required these broker-dealers to join a national

securities association, unless exempted by the SEC.

See Pub. L. No. 98-38, § 3, 97 Stat. 205, 206–07 (1983).

Congress believed that “self-regulation for all brokerdealers is preferable to direct regulation by the Commission for several reasons,” including that “any attempt” to place direct SEC regulation “on a par with

that provided by the NASD would require significant

expenditures by the Commission for additional staff

and administrative costs.” H.R. Rep. No. 106, 98th

Cong., 1st Sess. 6–7 (1983).

C. FINRA

FINRA supervises its member securities firms

and individuals associated with those firms. See Pet.

App. 9a–11a. It currently oversees more than 3,000

member firms and 600,000 registered representatives. See https://www.finra.org/media-center/statistics.

A private, not-for-profit Delaware corporation,

Pet. App. 9a, FINRA was formed in 2007, when its

predecessor, the NASD, consolidated its regulation

and enforcement functions with the similar functions

of the NYSE, see Order Approving Proposed Rule

Change, 72 Fed. Reg. 42,169 (Aug. 1, 2007).1 The government does not select any members of FINRA’s

board, which comprises governors appointed by the

Board or chosen by its private broker-dealer members

as member representatives. See C.A. App. 25 ¶ 58.

The NASD “owes its origins to a trade group founded in 1912,”

Donna M. Nagy, Playing Peekaboo with Constitutional Law, 80

Notre Dame L. Rev. 975, 1023–24 (2005), and was approved by

the SEC in 1939 as the first national securities association, see

Order Granting Registration Application, 4 Fed. Reg. 3564 (Aug.

9, 1939).

FINRA “receives no funding from” the government; it

is funded entirely by member fees and “fines, penalties, and sanctions levied against its members.” Pet.

App. 9a.

FINRA exercises its regulatory authority in accordance with the Exchange Act’s requirements and

under the SEC’s close supervision. For example, the

SEC reviews rules proposed by FINRA, approves

those rules if “consistent with the requirements of [the

Exchange Act],” 15 U.S.C. § 78s(b)(1), (2), and can “abrogate, add to, and delete from” those rules, id.

§ 78s(c). The SEC also examines FINRA to ensure

that it “appropriately discipline[s]” its members and

associated persons for violations of the Exchange Act

and FINRA’s rules and “provide[s] a fair procedure” in

disciplinary proceedings. Id. § 78o-3(b)(2), (7), (8). If

FINRA does not appropriately discharge these responsibilities, the SEC can impose limitations on its

activities or suspend or revoke its status as a self-regulatory organization, among other measures. Id.

§ 78s(h).

Consistent with FINRA’s statutory obligation to

provide fair disciplinary procedures, its SECapproved rules provide for multiple layers of “comprehensive” administrative and judicial review of its disciplinary proceedings. See Scottsdale Cap. Advisors

Corp. v. FINRA, 844 F.3d 414, 418, 422 (4th Cir.

2016). FINRA’s disciplinary proceedings generally include, among other procedural safeguards, an evidentiary hearing, FINRA Rule 9261; an appeal to

FINRA’s National Adjudicatory Council, FINRA Rule

9311; and a de novo appeal to the SEC, 15 U.S.C.

§ 78s(d)(2). Appeals to the SEC automatically stay

any sanction other than a bar on associating with

FINRA members or expulsion from FINRA membership, FINRA Rule 9370(a), although parties appealing

a bar or expulsion may ask the SEC to stay the sanctions, 17 C.F.R. § 201.401(d). Following the Commission’s final order, an aggrieved party has the right to

review in a designated U.S. Court of Appeals. 15

U.S.C. § 78y(a)(1).

FINRA’s disciplinary authority is also subject to

other limitations. For example, FINRA has no subpoena power to secure testimony or documents from

uncooperative parties or witnesses. See Pet. App.

118a n.8. In addition, FINRA lacks the authority to

file its own enforcement proceedings in federal court

or to “bring court actions to collect disciplinary fines it

has imposed.” Fiero v. FINRA, 660 F.3d 569, 571 (2d

Cir. 2011). By contrast, the SEC has broad statutory

power to subpoena witnesses, 15 U.S.C. § 78u(b), to

bring enforcement actions in federal court, id.

§ 78u(d), and to secure injunctions to compel compliance with SEC orders, id. § 78u(e).

D. Alpine

Alpine is a broker-dealer member of FINRA.

Pet. App. 11a. Like all FINRA members, Alpine committed to abide by FINRA’s rules, including the disciplinary procedures that it now attacks as unconstitutional, when it joined FINRA.

15 U.S.C.

§ 78c(a)(3)(B).

Over the past decade, FINRA has disciplined Alpine numerous times for violating its rules. See BrokerCheck Report at 16–111, bit.ly/3hjvcLU. Alpine

and its affiliates are also repeat federal-court litigants

against FINRA (which they have sued seven times

since 2014) and the SEC (which they have sued twice

and been sued by twice). In every suit to reach a final

decision, the courts have ruled for FINRA or the SEC

and against Alpine or its affiliates. These decisions

include a 2019 decision finding that Alpine engaged in

“egregious” “illegal conduct on a massive scale” by failing to submit reports required under the Bank Secrecy Act, and imposing a $12 million penalty. SEC v.

Alpine Sec. Corp., 413 F. Supp. 3d 235, 245–47

(S.D.N.Y. 2019), aff’d, 982 F.3d 68 (2d Cir. 2020), cert.

denied, No. 21-82, 142 S. Ct. 461 (2021).

1. This case arises from a 2019 disciplinary proceeding in which FINRA’s Department of Enforcement alleged that, in violation of FINRA’s rules, Alpine stole more than $54.5 million from its customers

by charging excessive fees and converting customer

securities without authorization. See C.A. App. 208.

FINRA did not allege any violation of the federal securities laws.

In March 2022, following an evidentiary hearing,

a FINRA hearing panel found that Alpine had violated FINRA rules by engaging in “intentional and

egregious” misconduct: Alpine “converted and misused customer funds and securities, engaged in unauthorized trading,” charged unreasonable fees, and

“made an unauthorized capital withdrawal.”

C.A. App. 163, 240. Citing a “high[ ] likel[ihood]” of

future violations, the panel found that “expulsion is

an appropriate sanction and the only alternative for

protecting the investing public.” C.A. App. 240. It

also imposed a permanent cease-and-desist order to

prevent further harm to customers. C.A. App. 246–

47. After Alpine appealed to FINRA’s National Adjudicatory Council, C.A. App. 252, the panel’s expulsion

order was automatically stayed, but its cease-and-desist order remained in force, see FINRA Rule 9311(b).

While the appeal was pending, FINRA’s Department of Enforcement received customer reports that

Alpine was violating the cease-and-desist order,

prompting a multi-month investigation. The investigation revealed that Alpine had violated the order

more than 35,000 times, charging customers millions

of dollars in excessive fees and commissions. See C.A.

App. 250–51. Pursuant to FINRA Rule 9556(h),

FINRA initiated an expedited proceeding to accelerate

Alpine’s expulsion from FINRA, halt Alpine’s ongoing

misconduct, and obtain restitution for Alpine’s customers. See C.A. App. 249. FINRA’s disciplinary complaint alleged violations of the cease-and-desist order,

not the federal securities laws.2

The hearing before a FINRA hearing officer began

on June 5, 2023, but, as discussed below, the D.C. Circuit later enjoined it pending appeal. If the expedited

proceeding ultimately results in an order adverse to

Alpine, including an expulsion order, Alpine may appeal directly to the SEC. See FINRA Rule 9559(r).

In March 2025, FINRA’s National Adjudicatory

Council affirmed in part and modified in part the

hearing panel’s order in the underlying, nonexpedited

Alpine claims that FINRA has not alleged violations of any

specific provision of the cease-and-desist order, Pet. 10, but that

is false. For example, FINRA has alleged in the expedited proceeding that Alpine violated Section 3 of the cease-and-desist order by continuing to charge a prohibited “1% per day illiquidity

and volatility fee” that Alpine simply “re-branded” as the “Alpine

Capital Allocation Charge.” C.A. App. 257–59; see also C.A. App.

260–61 (alleging that, contrary to the cease-and-desist order prohibiting Alpine from charging a “‘2.5% market-making and/or execution fee,’” “in 5,598 instances, Alpine has charged its introduced customers a ‘market-making’ fee, generally 2.5% of the

trade principal”).

proceeding. Among other sanctions, it ordered Alpine’s expulsion from FINRA (while staying the expulsion pending the opportunity for plenary SEC review).

See Decision at 100 & n.218, Dep’t of Enf’t v. Alpine

Sec. Corp., FINRA Complaint No. 2019061232601

(Mar. 25, 2025), bit.ly/4i0b775.

2. Earlier, in October 2022—during FINRA’s investigation that later culminated in the expedited proceeding—Alpine and an affiliate filed this suit in the

Middle District of Florida. Dist. Ct. D.E. 1. The

United States intervened to defend the constitutionality of the self-regulatory provisions of the Exchange

Act.

Alpine alleges violations of the Appointments

Clause, the Constitution’s removal requirements, and

the private-nondelegation doctrine. C.A. App. 46–49

¶¶ 141–61.3 In May 2023, Alpine filed an emergency

motion for a preliminary injunction to prevent FINRA

from moving ahead with the expedited disciplinary

proceeding. Dist. Ct. D.E. 45. Following briefing and

a hearing, the district court transferred the case to the

District Court for the District of Columbia under 28

U.S.C. § 1404(a). Pet. App. 13a. Alpine then renewed

its motion for a preliminary injunction. Dist. Ct. D.E.

66.

After a hearing, the district court denied Alpine’s

motion. Pet. App. 111a. The court ruled that “the

facts of FINRA’s creation, operation, and oversight

structure do not indicate state actor status,” Pet. App.

Alpine also alleged claims under the First, Fifth, and Seventh

Amendments, C.A. App. 49–52 ¶¶ 162–80, which the district

court rejected in denying a preliminary injunction, C.A. App.

400–11. Alpine did not raise these additional claims on appeal,

and they are not at issue here.

114a, which foreclosed Alpine’s claims under the Constitution’s appointment and removal requirements,

Pet. App. 120a. Consistent with the conclusions of

“every court to consider the issue,” the court further

ruled that Alpine’s “private nondelegation doctrine

claim is unlikely to succeed.” Pet. App. 121a–23a.

Alpine appealed and asked the D.C. Circuit to enjoin the expedited FINRA disciplinary proceeding

pending appeal. A divided motions panel granted Alpine’s motion in an unpublished order. Pet. App. 82a–

83a. The court denied rehearing en banc. C.A. Order

(Aug. 22, 2023).

E. The D.C. Circuit’s “Narrow”

“Preliminary” Decision Below

And

The court of appeals ultimately reversed in part

the district court’s denial of a preliminary injunction.

In a “narrow and limited” opinion that was “necessarily preliminary” and based on a “limited record,” it

concluded that Alpine had shown a likelihood of success on a single point: that, under the private-nondelegation doctrine, Alpine is entitled to an opportunity for full SEC review before it is expelled from

FINRA in an expedited disciplinary proceeding. Pet.

App. 28a–29a. In the court’s view, a member’s ability

to ask the SEC to stay an immediately effective expulsion order was likely constitutionally insufficient.

Pet. App. 20a–24a. The court also concluded that Alpine faced irreparable harm to the extent that “it faces

a grave risk of being forced out of business before full

SEC review.” Pet. App. 26a. The court thus directed

the district court to issue a “limited preliminary injunction” barring FINRA from “giving effect to any expulsion order” before SEC review (or expiration of the

time for seeking review). Pet. App. 3a, 45a.

The D.C. Circuit otherwise “dissolved” the motions panel’s injunction pending appeal, as Alpine had

not demonstrated that it was entitled to broader injunctive relief halting FINRA’s expedited disciplinary

proceeding. Pet. App. 45a. The court held that the

private-nondelegation doctrine likely is not violated

when FINRA “enforces its own private rules against a

member and seeks remedies against that member

that run only to FINRA, and not to the government.”

Pet. App. 24a (emphasis omitted). The court did not

reach the merits of Alpine’s appointment and removal

claims, deciding instead that Alpine was not entitled

to an injunction on those claims because it “ha[d] not

demonstrated that it will suffer irreparable harm.”

Pet. App. 32a. In so ruling, the court explained that

this Court’s decision in Axon Enterprise, Inc. v. FTC,

598 U.S. 175 (2023)—which addressed district court

jurisdiction over constitutional challenges to certain

ongoing agency proceedings—did not support Alpine’s

irreparable-harm argument. As the court explained,

Axon simply “answered a statutory jurisdictional

question” and “did not speak to what constitutes irreparable harm.” Pet. App. 41a. The court also

stressed that Alpine had “ma[de] no argument at all”

that Axon “effectively overruled” its earlier irreparable-harm precedent. Pet. App. 38a.

Judge Walker concurred in the judgment in part

and dissented in part. Pet. App. 46a. As relevant, he

agreed that “FINRA probably is not part of the government”: “It was not created by the government. It

is not controlled by the government. It is not funded

by the government. All these facts point in the same

direction: FINRA is a private entity.” Pet. App. 66a–

67a (emphasis in original). Nonetheless, he believed

Alpine had made a “strong showing” that FINRA vio-

lates “one of” either the private-nondelegation doctrine or Article II. Pet. App. 54a–55a. Judge Walker

also made several “arguments on Alpine’s behalf” on

irreparable harm and nondelegation that, as the majority held, Alpine “forfeited” by failing to advance on

appeal. Pet. App. 25a–26a, 39a (majority).

The D.C. Circuit denied Alpine’s motion to stay issuance of its mandate. C.A. Order (Feb. 7, 2025). Alpine then filed an emergency application asking this

Court to stay the D.C. Circuit’s judgment and prevent

FINRA from moving forward with the expedited disciplinary proceeding pending disposition of Alpine’s petition for a writ of certiorari. The Chief Justice denied

Alpine’s stay application in chambers. Alpine Sec.

Corp. v. FINRA, No. 24A808, 2025 WL 824410 (U.S.

Mar. 14, 2025).

REASONS FOR DENYING THE PETITION

The questions presented are not the subject of a

circuit split, are plagued by vehicle problems (including the interlocutory posture of this petition, the absence of a D.C. Circuit ruling on some issues, and forfeiture by Alpine on others) and, in any event, are legally meritless. This Court should deny review.

ALPINE’S AXON QUESTION DOES NOT

IMPLICATE A CIRCUIT SPLIT AND IS RECENTLY

DENIED,

POORLY

PRESENTED,

AND

MERITLESS.

Alpine’s first question presented is whether certain language in Axon Enterprise, Inc. v. FTC, 598

U.S. 175 (2023), means that being required to participate in an allegedly unconstitutional proceeding necessarily constitutes irreparable harm for preliminaryinjunction purposes. Pet. i. But the courts of appeals

to address this issue since Axon have unanimously

agreed with the D.C. Circuit that the answer is no,

and this Court recently denied review of the same issue in one such case, cited in the decision below, see

Leachco, Inc. v. CPSC, No. 24-156, 2025 WL 76435

(U.S. Jan. 13, 2025). The Court should likewise deny

certiorari here, especially given this case’s many serious vehicle problems.

Moreover, in no realistic sense is Alpine’s harm

here substantial or irreparable. It is commonplace for

parties to endure a proceeding even when it might be

overturned on appeal. The ordinary assumption is

that victory on appeal relieving the party of any adverse ruling on the merits is remedy enough. If

merely having to go through a proceeding constituted

irreparable harm, interlocutory review would be warranted in every case where a party asserts a defect in

the proceeding as a defense. The suggestion answers

itself.

A. There is no circuit split on the question

whether Axon converts every claim of an unconstitutional proceeding into irreparable harm for purposes

of an injunction. The D.C. Circuit approvingly cited

the Tenth Circuit’s recent decision in Leachco, Inc. v.

CPSC, 103 F.4th 748 (10th Cir. 2024), see Pet. App.

38a, which affirmed the denial of a preliminary injunction to halt allegedly unconstitutional agency enforcement proceedings. As the Tenth Circuit explained, “Axon did not address the issue of irreparable

harm, or any other issue regarding entitlement to injunctive relief,” and thus did not “create[ ] an entitlement” to “a preliminary injunction in every case” involving “constitutional challenges” to agency proceedings. Leachco, 103 F.4th at 758–59.

Likewise, the Sixth Circuit has concluded that

“Axon ‘did not address issues of relief or injury’” and

therefore does not support enjoining an allegedly unconstitutional agency proceeding. YAPP USA Auto.

Sys., Inc. v. NLRB, 2024 WL 4489598, at *3 (6th Cir.

Oct. 13, 2024) (denying injunction pending appeal).

Other courts agree. E.g., Spring Creek Rehab. &

Nursing Ctr. v. NLRB, 2024 WL 4690938, at *3

(D.N.J. Nov. 6, 2024) (“Based upon controlling Third

Circuit precedent, this Court arrives at the same conclusion reached by the Sixth Circuit [in YAPP].”), injunction pending appeal denied, No. 24-3043 (3d Cir.

Nov. 6, 2024).

More generally, relying on longstanding precedent, the Third Circuit recently “decline[d]” to adopt

the argument that “all constitutional harm is supposedly irreparable.” Del. State Sportsmen’s Ass’n v. Del.

Dep’t of Safety & Homeland Sec., 108 F.4th 194, 198,

203 (3d Cir. 2024). This Court denied the ensuing petition for certiorari, Gray v. Jennings, No. 24-309,

2025 WL 76443 (U.S. Jan. 13, 2025), which presented

a question similar to Alpine’s, see Pet. i, No. 24-309,

2024 WL 4243918 (U.S. Sept. 16, 2024) (“Whether the

infringement of Second Amendment rights constitutes

per se irreparable injury.”). The Fifth Circuit, too, recently rejected the argument that merely “participating in an unconstitutional proceeding is irreparable

harm.” Space Expl. Techs. Corp. v. NLRB, 129 F.4th

906, 910 (5th Cir. 2025).

Thus, as the Solicitor General explained in opposing certiorari in Leachco, the Tenth Circuit’s reading

of Axon (which is also the D.C. Circuit’s) “does not conflict with any decision of another court of appeals.” Br.

in Opp. 17, No. 24-156, 2024 WL 4817360 (U.S. Nov.

14, 2024). The Court denied certiorari in Leachco

without recorded dissent. No. 24-156, 2025 WL 76435

(U.S. Jan. 13, 2025). And three Justices have recently

denied emergency applications raising the same issue—including in this case—without referring any of

those applications to the full Court.

Alpine,

No. 24A808, 2025 WL 824410 (Roberts, C.J.); YAPP

USA Auto. Sys., Inc. v. NLRB, No. 24A348, 2024 WL

4508993 (U.S. Oct. 15, 2024) (Kavanaugh, J.);

Leachco, Inc. v. CPSC, No. 23A124, 2023 WL 5728468

(U.S. Aug. 7, 2023) (Gorsuch, J.).

B. Unable to dispute that every court of appeals

to address its Axon issue has agreed with the D.C. Circuit, Alpine points to solo dissents by three judges on

that court: Judge Walker’s opinion below, and dissents from motions-panel orders by Judge Rao and

then-Judge Kavanaugh. Pet. 15–17; see also Pet. App.

72a (Walker, J., dissenting in relevant part) (similarly

discussing “our circuit’s cases,” not any other’s). But

a circuit judge’s dissenting opinion is not a “decision”

of “a United States court of appeals” that could give

rise to a circuit conflict warranting this Court’s review. Sup. Ct. R. 10(a). Even a full-fledged disagreement between “different panels” of the same circuit is

generally “not a sufficient basis for granting certiorari.” Stephen M. Shapiro et al., Supreme Court Practice 254 (10th ed. 2013). At most, disagreement

among individual circuit judges could present grounds

to seek rehearing en banc, which Alpine elected not to

do.

Moreover, Alpine overstates the extent of the disagreement between these individual judges and the

circuit decisions declining to find irreparable harm

based on an allegedly unconstitutional proceeding.

According to Alpine, “some Circuits have erected a

categorical bar establishing that [structural constitutional] injuries are not irreparable”—but Alpine con-

spicuously fails to identify any such categorical language in the circuit-court decisions addressing this issue. Pet. 4 (emphasis added); see id. at 15 (citing the

Tenth, Sixth, and D.C. Circuit cases discussed above).

In fact, as Alpine has since admitted in stay briefing

before this Court, the Tenth Circuit in Leachco “‘held

no such thing’”; it simply “‘recognized that separationof-powers violations can cause irreparable harm’” and

“‘merely concluded that petitioner had not established

such harm.’” Alpine Stay Reply 12, No. 24A808, 2025

WL 856066 (U.S. Mar. 12, 2025) (emphases added by

Alpine). Likewise, the decision below merely applied

Leachco in holding that “Alpine has not asserted” the

necessary factual predicate for irreparable harm. Pet.

App. 38a (citing Leachco, 103 F.4th at 754); accord

YAPP, 2024 WL 4489598, at *3 (rejecting “YAPP’s

bare claim” but not foreclosing other, stronger claims

of injury). These factbound determinations do not

support Alpine’s claim that some circuits have issued

“categorical” holdings.

Retreating to a higher level of generality, Alpine

briefly notes a handful of pre-Axon cases that involved

violations of the Constitution’s individual-rights provisions or the Supremacy Clause—not cases where, as

here, merely having to participate in proceedings is

alleged to violate Article II and the private-nondelegation doctrine. Pet. 17. Those inapposite cases cannot create a split on the specific Axon question that

Alpine has chosen to present in its petition. Pet. i.

C. Further, three case-specific obstacles make

this petition a particularly poor vehicle for the Court

to consider the irreparable-harm standard.

First is a serious preservation issue: The D.C. Circuit held that Alpine “has forfeited” the irreparable-

harm arguments that Judge Walker made on its behalf, including the argument that then-Judge Kavanaugh’s dissent in John Doe Co. v. CFPB, 849 F.3d

1129 (D.C. Cir. 2017), articulates the correct standard

for assessing irreparable harm in constitutional cases.

Pet. App. 39a. Alpine’s briefing below made “no argument at all that [the D.C. Circuit’s pre-Axon] precedent has been effectively overruled or that there is any

other basis on which th[e] panel could depart from it”;

“[i]n fact, Alpine ignore[d] all three of” the D.C. Circuit’s controlling cases, including Doe. Pet. App. 38a.

Absent unusual circumstances—none of which is present here—this Court will not entertain arguments

not made below. OBB Personenverkehr AG v. Sachs,

577 U.S. 27, 38 (2015).

Second, FINRA’s private status renders this an

atypical Axon challenge, especially because Alpine

joined this private organization and consented to its

disciplinary procedures. The D.C. Circuit aptly observed that, “as Alpine’s private nondelegation argument suggests, FINRA is not a government agency

like those at issue in Axon,” but a “corporation” with

“private employees.” Pet. App. 42a. As the court recognized, this distinguishing feature independently defeats Alpine’s irreparable-harm argument, as

“[n]othing in Axon addressed an asserted injury from

a member of a private organization having to go

through a hearing process before such an entity.” Pet.

App. 43a. If and when this Court chooses to review

the irreparable-harm standard in cases challenging

an allegedly unconstitutional proceeding, it will have

every reason (and ample opportunity) to do so in a routine challenge to an actual government agency, like

the CPSC in Leachco or the NLRB in YAPP. See supra

at 14–15. Indeed, if the Axon question really proves

as confounding to judges as Alpine contends, then that

is all the more reason to avoid encumbering it with the

additional complications created by FINRA’s private

status.

Third, this case arises at an interlocutory stage.

Because “this case comes . . . in a preliminary-injunction posture,” the D.C. Circuit emphasized that its decision “necessarily d[id] not resolve the ultimate merits of any of Alpine’s” claims and “is based only on the

early record in this case.” Pet. App. 4a. This Court

“generally await[s] final judgment in the lower courts

before exercising . . . certiorari jurisdiction,” so the

courts below can fully consider the issues in the first

instance. Va. Mil. Inst. v. United States, 508 U.S. 946,

946 (1993) (statement of Scalia, J., respecting the denial of certiorari). Alpine asserts that its irreparableharm question “would only arise in the context of a

preliminary posture,” Pet. 35, but that is wrong: “‘irreparable injury’” is likewise a requirement for any

“‘permanent injunction,’” Monsanto Co. v. Geertson

Seed Farms, 561 U.S. 139, 156 (2010)—a point that

Alpine ultimately (if begrudgingly) admits, Pet. 22 &

n.3. Thus, this Court should follow its usual practice

and decline review now, leaving for another day

whether to grant review if and when Alpine (or another party) litigates this issue to final judgment.

Compare, e.g., Guedes v. ATF, 140 S. Ct. 789, 791

(2020) (statement of Gorsuch, J.) (voting to deny review of “preliminary ruling” that “might yet be corrected before final judgment” in this case or “other”

cases addressing the same issue), with Garland v.

Cargill, 602 U.S. 406 (2024) (later resolving the issue

at the final-judgment stage in another case).

D. Certiorari is also unwarranted because the

D.C. Circuit’s resolution of the Axon question was correct. As the courts of appeals to address the issue

have uniformly recognized, the “‘here-and-now injury’” language in Axon that Alpine “[s]eiz[es] on”

arose in a different context and did not purport to

change longstanding principles governing the irreparable-harm requirement for injunctive relief.

Pet. App. 41a; see also Pet. App. 71a (opinion of

Walker, J.) (agreeing that “‘Axon was answering a

question about whether a district court had jurisdiction, not whether a court should grant a preliminary

injunction’”).

Indeed, Alpine’s argument is especially weak because, as the Tenth Circuit explained in Leachco, the

“here-and-now” language at issue was not even new to

Axon: It was drawn from a passage in Seila Law LLC

v. CFPB, 591 U.S. 197, 212 (2020)—in turn, quoting

Bowsher v. Synar, 478 U.S. 714, 727 n.5 (1986)—that

“concerned standing, not entitlement to injunctive relief.” 103 F.4th at 759; see also Bowsher, 478 U.S. at

727 n.5 (addressing “‘ripe[ness],’” not the availability

of a preliminary injunction). And this Court underscored that “key distinction” between jurisdiction and

remedies in Collins v. Yellen, 594 U.S. 220, 258 n.24

(2021), which “clarified” that the “‘here-and-now injury’ language from Seila Law” was a “holding on

standing” and “should not be misunderstood” to require particular relief. Leachco, 103 F.4th at 759

(some internal quotation marks omitted).

“Because Axon did not overrule Collins,” the Court

should not credit Alpine’s strained effort to pluck language from Axon’s discussion of subject-matter jurisdiction, which in turn drew on prior jurisdictional rulings in Seila Law and Bowsher, and wield it to justify

a preliminary injunction. YAPP, 2024 WL 4489598,

at *3. “As Chief Justice Marshall warned, ‘It is a

maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection

with the case in which those expressions are used.’”

Loper Bright Enters. v. Raimondo, 603 U.S. 369, 421–

22 (2024) (Gorsuch, J., concurring) (quoting Cohens v.

Virginia, 19 U.S. (6 Wheat.) 264, 399 (1821)). Alpine’s

reading of Axon defies that principle.

II. ALPINE’S CONSTITUTIONAL QUESTION DOES

NOT WARRANT REVIEW.

The Court should also deny certiorari on Alpine’s

second question presented: Whether the structure

and enforcement powers of FINRA, a private corporation carrying on a centuries-old tradition of securities

self-regulation, violate Article II’s appointment and

removal requirements or the private-nondelegation

doctrine. Pet. i.

A. Alpine’s Article II Claims Were Not

Addressed Below, Are Concededly Not

Subject To A Split, And Are Meritless.

1. The Article II component of Alpine’s constitutional question is not certworthy. As an initial matter, there is no ruling to review. The D.C. Circuit did

not reach the merits of Alpine’s Article II appointment

and removal claims. Pet. App. 45a; see Pet. 34 (acknowledging that “the D.C. Circuit majority below

rested its ruling entirely on” the threshold irreparable-harm question). Because this Court is “a court of

review, not of first view,” that makes this case an exceptionally poor vehicle to address those issues. Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

Moreover, there is no circuit split on the applicability of Article II’s appointment and removal requirements to a private entity like FINRA. Alpine does not

argue otherwise—it suggests that review is appropriate “even [though] no circuit split has yet developed.”

Pet. 19. In fact, Alpine’s cases addressing the constitutionality of the Horseracing Integrity and Safety

Authority (“HISA”), id. at 36, rejected Alpine’s position that the Constitution’s appointment and removal

requirements can apply to private parties. In NHBPA

v. Black, 107 F.4th 415 (5th Cir. 2024), pet. for cert.

filed (Oct. 16, 2024), the Fifth Circuit, applying Lebron v. National Railroad Passenger Corp., 513 U.S.

374 (1995), rejected an Appointments Clause challenge to HISA, a private self-regulatory organization

“modeled on . . . FINRA,” because the plaintiff did not

clear “Lebron[’s] . . . insuperable hurdle” for demonstrating that “a private entity qualifies as part of the

government for constitutional purposes.” 107 F.4th at

434, 437–39.

The Eighth Circuit rejected an Appointments

Clause challenge to HISA on the same ground in

Walmsley v. FTC, 117 F.4th 1032 (8th Cir. 2024), pet.

for cert. filed (Oct. 10, 2024). The court expressly

agreed “with the Fifth Circuit that the Act does not

conflict with the Appointments Clause” because “[t]he

Lebron standard is not satisfied.” Id. at 1041. And

both courts expressly rejected the challengers’ arguments, also advanced by Alpine here, that Lucia v.

SEC, 585 U.S. 237 (2018), should be extended to private entities that are not part of the government under Lebron. See NHBPA, 107 F.4th at 439; Walmsley,

117 F.4th at 1041.

Other circuits likewise restrict application of Article II to officials employed by the federal government. For example, the Fourth Circuit rejected an Appointments Clause challenge to the Metropolitan

Washington Airports Authority (“MWAA”) because

MWAA—an interstate-compact entity—is “not a federal instrumentality” under Lebron.

Kerpen v.

MWAA, 907 F.3d 152, 158 (4th Cir. 2018). Similarly,

multiple circuits have rejected Appointments Clause

challenges to private qui tam relators because “the

constitutional definition of an ‘officer’ encompasses, at

a minimum, a continuing and formalized relationship

of employment with the United States Government.”

Riley v. St. Luke’s Episcopal Hosp., 252 F.3d 749, 757–

58 (5th Cir. 2001) (en banc) (emphasis added); see also

United States ex rel. Stone v. Rockwell Int’l Corp., 282

F.3d 787, 805 (10th Cir. 2002) (similar).

Alpine also claims support for its Article II arguments from the Office of Legal Counsel. Pet. 28–29.

But Alpine neglects to mention OLC’s most recent

opinion on the topic, which confirms OLC’s agreement

with FINRA that the Appointments Clause does not

apply to officers of a private entity unless that nominally private entity is actually “part of the government.” OLC, The Test for Determining ‘Officer’ Status

Under the Appointments Clause 7 (Jan. 16, 2025),

bit.ly/3CW1dF6. Alpine’s position misreads a 2007

OLC opinion that, as the 2025 OLC opinion explains,

is “largely consistent” with both OLC’s earlier (1996)

and later (2025) opinions on this topic, “and with [this]

Court’s view that the Appointments Clause only applies to persons and entities that are part of the federal government for constitutional purposes.” Id. at 8.

The United States took the same position below, see

C.A. Br. for Intervenor 41–62, and the Department of

Justice continues to take the same position in related

litigation involving FINRA, see SEC Br. 20–23, Black

v. SEC, No. 3:23-cv-709 (W.D.N.C. Apr. 4, 2025) (D.E.

52).

2. Certiorari is also unwarranted because Alpine’s argument lacks merit: Article II’s appointment

and removal requirements apply only to officers of the

United States government, not private companies.

The Appointments Clause provides that the President “shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and

all other Officers of the United States” who hold principal offices “established by Law.” U.S. Const. art. II,

§ 2, cl. 2 (emphasis added). The first four listed examples are all plainly federal government officials, which

confirms that the final catchall phrase likewise refers

to officials employed by the federal government. See

Yates v. United States, 574 U.S. 528, 543–46 (2015)

(plurality) (explaining noscitur a sociis and ejusdem

generis). And the President’s removal power—implicit in Article II and the separation of powers—is

similarly limited to “executive officers,” whom the

President is “empower[ed]” to keep “accountable[ ] by

removing them.” Free Enter. Fund v. PCAOB, 561

U.S. 477, 483 (2010).

Founding-era sources confirm that “‘Officers of

the United States’” refers only to “federal civil officials

with responsibility for an ongoing statutory duty.”

Lucia, 585 U.S. at 253 (Thomas, J., concurring) (some

internal quotation marks omitted) (citing Jennifer L.

Mascott, Who Are ‘Officers of the United States’?, 70

Stan. L. Rev. 443, 564 (2018)). The Founding-era “evidence suggests that ‘of the United States’ in the Appointments Clause . . . is a descriptive phrase indicating that the officers are federal, and not state or private, actors.” Mascott, supra, at 471 (emphases

added).

This reading is borne out by historical practice.

For example, when the first Congress constituted the

Bank of the United States, see Act of Feb. 25, 1791,

ch. 10, 1 Stat. 191, “numerous individuals involved

with its operation”—including its directors—“were

not appointed in accordance with Article II’s requirements,” Mascott, supra, at 531, even though the Bank

exercised delegated federal powers to maintain the

national currency, see Gillian E. Metzger, The Constitutional Duty to Supervise, 124 Yale L.J. 1836, 1883

(2015) (discussing Congress’s historically “widespread

delegation of responsibility to nongovernmental actors, such as the . . . reliance on the Bank of the United

States to control the money supply”). And although

Washington, Hamilton, Madison, Jefferson, and Randolph all considered the Bank’s constitutionality—

and all but Washington made statements on it—none

raised concerns about the appointment or removal of

Bank officers. See Aditya Bamzai, Tenure of Office

and the Treasury, 87 Geo. Wash. L. Rev. 1299, 1342

(2019). The most “probable explanation” is that they,

like “Congress[,] saw the bank” as a “nongovernmental entity” that was not subject to Article II. Mascott,

supra, at 531.

This Court has likewise applied the Constitution’s

appointment and removal requirements only to “‘Officers of the United States,’ a class of government officials” employed by the federal government. Lucia,

585 U.S. at 241 (emphasis added). The Court has

never applied those structural requirements to the

employees of private companies that carry out responsibilities that might otherwise be performed by federal officials.

To be sure, in exceptional circumstances, nominally private entities may actually constitute part of

the “Government itself” under Lebron—which asks

whether a company was “Government-created” to further governmental “purposes” and is subject to the

government’s permanent “control” of its board—and

thus be subject to the Constitution’s structural requirements. 513 U.S. at 391–94 (deeming Amtrak to

be part of the government for constitutional purposes). In Free Enterprise Fund, the Court applied the

Constitution’s removal requirements to the PCAOB, a

nominally private, “Government-created” entity

whose members are appointed by the SEC, because

“the parties agree[d] that the Board is ‘part of the Government’ for constitutional purposes” under Lebron

and that “its members are ‘Officers of the United

States.’” 561 U.S. at 485–86 (quoting Lebron, 513 U.S.

at 397); see also Dep’t of Transp. v. Ass’n of Am. R.R.s,

575 U.S. 43, 55 (2015) (identifying potential Appointments Clause issue to be addressed on remand given

Amtrak’s status as “a governmental entity, not a private one,” under Lebron) (emphasis added).

Because FINRA is not part of the government under Lebron, Article II does not apply to its directors or

employees. FINRA was not created by Congress; it

was privately incorporated when the NASD and

NYSE—both private entities—merged their enforcement functions. Supra at 5 & n.1. Moreover, the government has never had power to appoint FINRA officials, let alone “permanent authority to appoint a majority of the directors.” Lebron, 513 U.S. at 400; see

also supra at 5–6. Thus, as the district court recognized below, every court to consider the question has

held that “FINRA is a private entity wholly separate

from the SEC or any other government agency.” Pet.

App. 116a & n.7 (collecting cases).

Indeed, this Court all but resolved the issue in

Free Enterprise Fund, which expressly distinguished

“private self-regulatory organizations in the securities

industry—such as the New York Stock Exchange”—

from the PCAOB, which, “[u]nlike the self-regulatory

organizations,” is a “Government-created, Government-appointed entity” and is therefore subject to the

Constitution’s removal requirements. 561 U.S. at

484–85 (emphases added); see id. at 486–87 (again discussing “private” self-regulatory organizations). This

Court’s reference to the NYSE is particularly significant, as FINRA was created by a merger of the

NYSE’s regulatory arm with the NASD, and it shares

all of its relevant characteristics.

This Court’s prior, all-but-dispositive pronouncements foreclose any conceivable basis for review.4

B. Alpine’s Private-Nondelegation Claim

Does Not Implicate A Split And Is

Meritless.

1. Nor does Alpine’s private-nondelegation claim

warrant certiorari. Contrary to Alpine’s assertion, the

courts of appeals have not “diverged” on whether

FINRA’s disciplinary proceedings violate the privatenondelegation doctrine where, as here, there is an opportunity for SEC review before any expulsion takes

effect. Pet. 18. In fact, as the district court recognized

below, “every court to consider the issue” —including

decisions from the Second, Third, and Ninth Circuits

rejecting

private-nondelegation

challenges

Several Justices have questioned the constitutionality of qui

tam relators “represent[ing] the United States’ interests in civil

litigation.” E.g., United States ex rel. Polansky v. Exec. Health

Res., Inc., 599 U.S. 419, 450 (2023) (Thomas, J., dissenting). But

even if that view were ultimately to prevail, it would only underscore why FINRA personnel—who lack that power, supra at 7—

are not “Officers of the United States.”

FINRA’s predecessor the NASD—has rejected Alpine’s nondelegation argument. Pet. App. 122a; see,

e.g., Sorrell v. SEC, 679 F.2d 1323, 1325–26 (9th Cir.

1982); First Jersey Sec., Inc. v. Bergen, 605 F.2d 690,

697 (3d Cir. 1979); Todd & Co. v. SEC, 557 F.2d 1008,

1012–13 (3d Cir. 1977); R.H. Johnson & Co. v. SEC,

198 F.2d 690, 695 (2d Cir. 1952); NCLA Amicus Br.

10–11 (conceding that courts “have approved of

FINRA enforcement as a permissible and constitutional delegation to a private entity”).

Alpine invokes cases addressing private-nondelegation challenges to HISA, the horseracing industry’s

self-regulatory organization, Pet. 36, but the courts in

each of those cases uniformly agreed that FINRA is

constitutional, regardless of their views on HISA. As

Chief Judge Sutton explained for the Sixth Circuit:

“In case after case, the courts have upheld [the SECFINRA] arrangement, reasoning that the SEC’s ultimate control over the rules and their enforcement

makes the [securities self-regulatory organizations]

permissible aides and advisors.” Oklahoma v. United

States, 62 F.4th 221, 229 (6th Cir. 2023) (collecting

prior cases), cert. denied, No. 23-402, 144 S. Ct. 2679

(2024), pet. for reh’g filed (July 18, 2024); accord

NHBPA, 107 F.4th at 426 (reasoning that the SEC’s

rulemaking authority “with respect to FINRA” makes

FINRA properly “subordinate” to the SEC for privatenondelegation purposes); Walmsley, 117 F.4th at 1039

(rejecting nondelegation challenge to HISA, which

was “modeled” on the SEC-FINRA relationship that

“has been widely approved as constitutional”).

Indeed, the decision below is more favorable to Alpine’s nondelegation position than any other, because

it recognized a private-nondelegation issue, at least on

a “preliminary” basis, on the “narrow” and “limited”

ground that the opportunity for SEC review is required before FINRA may expel a member through an

expedited proceeding. Pet. App. 28a–29a. That ruling

might have provided FINRA—as the party that disagreed with that aspect of the D.C. Circuit’s decision—

a ground to petition for certiorari, but not Alpine.

This Court’s “practice reflects a ‘settled refusal’ to entertain an appeal by a party on an issue as to which

he prevailed.” Camreta v. Greene, 563 U.S. 692, 704

(2011) (quoting Bunting v. Mellen, 541 U.S. 1019,

1023 (2004) (Scalia, J., dissenting from the denial of

certiorari)).

Moreover, much like its Axon question, Alpine’s

private-nondelegation argument faces serious preservation issues. See supra at 17–18. Alpine now embraces Judge Walker’s partial dissent, Pet. 3—which,

“unsupported by a single case” from this Court or the

courts of appeals, Pet. App. 26a (majority), transplants the “significant executive authority” standard

from Appointments Clause jurisprudence to the nondelegation setting, Pet. App. 54a. But the D.C. Circuit

held that “Alpine itself ha[d] not advanced,” and thus

“forfeited,” Judge Walker’s nondelegation arguments,

which went “far beyond” the grounds on which Alpine

“request[ed] a preliminary injunction.” Pet. App.

24a–26a. This forfeiture creates yet another vehicle

problem counseling against review, especially at this

interlocutory stage. See supra at 19.

Alpine nevertheless urges the Court to ignore

these procedural deficiencies because challenges to

FINRA’s authority are supposedly “rare” and “unlikely to present often.” Pet. 35. But an issue’s failure

to “recur[ ]” is usually a “decisive” reason to deny certiorari. Shapiro, supra, at 246. Regardless, similar

constitutional claims have already been raised in several other cases against FINRA.5 Thus, there is no

reason for this Court to water down its usual strict

certiorari standards here.

2. On the merits, the D.C. Circuit correctly concluded, in line with the circuits’ uniform view, that the

SEC-FINRA model does not violate the private-nondelegation doctrine where the SEC has an opportunity

to review any expulsion before it takes effect.

This Court has long held that Congress may give

a private company a substantial role in a regulatory

program, provided it “function[s] subordinately” to,

and is under the “authority and surveillance” of, a governmental body. Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940). In Adkins, for example, Congress did not unconstitutionally “delegate[ ]

its legislative authority to the [coal] industry” in authorizing industry boards to propose regulations subject to a government agency’s “approv[al],” because

the agency’s ultimate “authority” over those regulations meant that “law-making [was] not entrusted to

the industry.” Id. at 388, 399; see also Currin v. Wallace, 306 U.S. 1, 14–16 (1939) (upholding statute requiring industry members to ratify the government’s

regulations before they took effect); United States v.

Rock Royal Co-op., 307 U.S. 533, 577–78 (1939) (similar).

See, e.g., Kim v. FINRA, 698 F. Supp. 3d 147 (D.D.C. 2023);

Blankenship v. FINRA, 2024 WL 4043442 (E.D. Pa. Sept. 4,

2024), appeal filed, No. 24-2860 (3d Cir.); Black v. SEC, 125 F.4th

541 (4th Cir. 2025); Black v. SEC, No. 3:23-cv-709 (W.D.N.C.

filed Oct. 30, 2023); Lukezic v. FINRA, No. 1:25-cv-623 (D.D.C.

filed Mar. 3, 2025).

There is no doubt that the SEC-FINRA model satisfies the standard established by Adkins. As this

Court has recognized, the Exchange Act “authorizes

the SEC to exercise a significant oversight function

over the rules and activities of the registered associations,” which are subject to the SEC’s “pervasive supervisory authority.” United States v. NASD, 422

U.S. 694, 700 n.6, 733 (1975). Specifically, the SEC

“must approve” FINRA’s rules and “may abrogate,

add to, and delete from all FINRA rules as it deems

necessary.” Aslin v. FINRA, 704 F.3d 475, 476 (7th

Cir. 2013) (citing 15 U.S.C. § 78s(b)(1), (c)). FINRA

also must notify the SEC of any final disciplinary action, which is subject to de novo review by the Commission acting sua sponte or in response to a petition

from the aggrieved party. See 15 U.S.C. § 78s(d)(1)(2). And, where appropriate, the SEC can further

cabin FINRA’s enforcement powers by limiting its activities or suspending or revoking its registration,

among other measures. Id. § 78s(h). The Exchange

Act thus ensures that FINRA’s enforcement activities

are “subordinate to” the SEC. NHBPA, 107 F.4th at

426.

In a misguided effort to bolster its nondelegation

claim, Alpine incorrectly asserts that “this case” involves the “enforcement of federal law” by FINRA.

Pet. 5 (emphasis omitted). In reality, as the court below emphasized, “FINRA is not enforcing any federal

law or SEC regulation against Alpine in the underlying proceeding.” Pet. App. 24a. Rather, the expedited

disciplinary proceeding that Alpine seeks to enjoin

concerns only Alpine’s violations of FINRA’s ceaseand-desist order—which, in turn, was based on Alpine’s violations of “FINRA’s private rules,” Pet. App.

2a—not the enforcement of the Exchange Act or any

other “federal securities laws.” Contra Pet. 4–6, 10,

25. Accordingly, this case concerns only the kind of

private rule violations that self-regulatory organizations have adjudicated with respect to their members

for centuries. Supra at 2–3, 8–12. This “‘[l]ong settled

and established practice’” fatally undermines Alpine’s

historically unmoored constitutional claims. NLRB v.

Noel Canning, 573 U.S. 513, 524 (2014).

III. THERE IS NO REASON TO HOLD THIS

PETITION.

There is no basis for Alpine’s alternative request

that the Court hold this case for FCC v. Consumers’

Research, No. 24-354, a case involving a different statutory scheme and issues that are distinguishable in

several important respects. Contra Pet. 36.

Consumers’ Research primarily concerns whether

federal communications laws violate the public-nondelegation doctrine, which has nothing to do with Alpine’s challenge under the private-nondelegation doctrine. See Tr. of Oral Arg. at 99:14–15, No. 24-354

(Mar. 26, 2025) (counsel observing that the “private

delegation piece” of the case “hasn’t gotten a lot of

play”). Although Consumers’ Research also presents,

secondarily, a private-nondelegation issue, that issue

arises in the context of an “unprecedented” statutory

scheme that “stands alone” and is “unlike other[s]” in

multiple respects. Consumers’ Rsch. v. FCC, 109

F.4th 743, 766–67, 779 (5th Cir. 2024) (en banc).

Notably, the Fifth Circuit’s decision in Consumers’

Research expressly distinguished the “role in securities regulation” of the NASD—FINRA’s predecessor—

which the court recognized had been upheld because

the “SEC was obliged to ‘insure fair treatment of those

disciplined by’ NASD” and “to review NASD orders,

make de novo findings, and come to an ‘independent

decision on’ securities’ violations and penalties.” 109

F.4th at 770 (quoting Todd, 557 F.2d at 1012, 1014

(rejecting constitutional challenge to NASD)). The

Fifth Circuit also noted that the Maloney Act amendments to the Exchange Act governing FINRA differ

from the FCC scheme because they “specifically authorized registered organizations to self-regulate

over-the-counter securities markets,” whereas the

FCC provision “ma[de] no mention” of delegations to

“private entities.” Id. at 776 & n.20; see supra at 3–6.

These key distinctions confirm that there is no reason

to hold this petition simply because both cases involve

“nondelegation” at a stratospheric level of generality.

The same is true with respect to the pending petitions in cases raising constitutional challenges to

HISA. This Court has not granted review in any of

those cases, which means that Alpine’s hold request is

based on nothing more than speculation about this

Court’s future actions. Regardless, as with the statutory scheme in Consumers’ Research, the only court of

appeals to find a constitutional defect in HISA expressly distinguished the statutory provisions governing the relationship between FINRA and the SEC

from the statute governing HISA and the FTC. See

NHBPA, 107 F.4th at 426.

Finally, a hold pending Consumers’ Research (or

any of the HISA cases) is particularly unwarranted

given this case’s interlocutory posture. The Court typically holds cases to prevent a decision from becoming

final before a lower court is able to “reconsider[ ]” its

decision based on a forthcoming opinion from this

Court. Shapiro, supra, at 346. But here, the lower

courts will be free, in the ordinary course, to consider

the impact of this Court’s decision in Consumers’ Research and any other private-nondelegation cases

while moving forward with this case on remand,

which obviates any possible need for a hold and subsequent GVR order.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted.

MICHAEL W. MCCONNELL

STEFFEN N. JOHNSON

WILSON, SONSINI,

GOODRICH & ROSATI, P.C.

1700 K Street, N.W.

Washington, D.C. 20006

(202) 973-8800

AMIR C. TAYRANI

Counsel of Record

ALEX GESCH

MAX E. SCHULMAN

AMALIA REISS

GIBSON, DUNN & CRUTCHER LLP

1700 M Street, N.W.

Washington, D.C. 20036

(202) 955-8500

atayrani@gibsondunn.com

Counsel for Respondent

April 25, 2025

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.