Supreme Court of the United States

“ Proc. 1. * When Congress withholds jurisdiction, we must respect its choice. But when Congress grants jurisdiction to the Nation’s courts, we must respect that choice too. We have no authority to froth plain statutory text with factors of our own design, all with an eye to denying some people the day in court the law promises them. Respectfully, this Court should be done with the Thunder Basin project. ”

“ Just because an agency can hear a case does not mean a district court cannot. To decide whether a particular case belongs in an agency rather than a court, you must consult three further “considerations ... commonly known now as the Thunder Basin factors.” Ante, at 7–8.
That’s where the magic happens. The Thunder Basin factors require assessing whether: (1) “precluding district court jurisdiction” would “foreclose all meaningful judicial review”; (2) the plaintiff ’s claims are “wholly collateral” to the statutory review scheme; and (3) the claims are “outside the agency’s expertise.” ”

“ If private rights are at stake, the Constitution likely requires plenary Article III adjudication. Conversely, if privileges or public rights are at stake, Congress likely can foreclose judicial review at will. ”

“ The court could of course vacate the FTC’s order. But Axon’s separation-of-powers claim is not about that order; indeed, Axon would have the same claim had it won before the agency. The claim, again, is about subjection to an illegitimate proceeding, led by an illegitimate decisionmaker. And as to that grievance, the court of appeals can do nothing: A proceeding that has already happened cannot be undone. Judicial review of Axon’s (and Cochran’s) structural constitutional claims would come too late to be meaningful. ”

“ But sometimes that doesn’t count for much. Sometimes judges can shunt you to an agency instead—so long as a test we have fabricated suggests to us that is what Congress really wanted.
There are many problems with the Thunder Basin project, but start with its sheer incoherence. At the outset, Thunder Basin requires litigants and courts to ask whether a “ ‘comprehensive review process’ ” exists. Ante, at 7. What does that mean? It seems a review process will “typically” qualify as “comprehensive” when “review in a court of appeals follow [s] the agency’s own review.” ”

“ Nothing we say today portends newfound enthusiasm for interlocutory review. Return, for example, to Thunder Basin and Elgin. There, the coal company and federal employee could both have argued that the statutory review process would subject them to greater litigation costs than their preferred suit in district court. ”

“ The parties’ separation-of-powers claims do not relate to the subject of the enforcement actions—in the one case auditing practices, in the other a business merger. Cf. Mohawk Industries, Inc. v. Carpenter, 558 U. S. 100, 106 (2009) (considering as part of the “collateral order doctrine,” which governs appeals in non-agency litigation, whether a question is “separate from the merits”) . Nor do the parties’ claims address the sorts of procedural or evidentiary matters an agency often resolves on its way to a merits decision. ”

“ All three Thunder Basin factors thus point in the same direction—toward allowing district court review of Axon’s and Cochran’s claims that the structure, or even existence, of an agency violates the Constitution. For the reasons given above, those claims cannot receive meaningful judicial review through the FTC Act or Exchange Act. They are collateral to any decisions the Commissions could make in individual enforcement proceedings. And they fall outside the Commissions’ sphere of expertise. ”

“ If an appellate court had ruled in favor of the coal company or the federal employee on review of an agency decision, the court could have remedied the party’s injury. It could have revoked the fine assessed on the company or reinstated the employee with backpay. But not so here. The harm Axon and Cochran allege is “being subjected” to “unconstitutional agency authority”—a “proceeding by an unaccountable ALJ.” Brief for Axon 36; see Brief for Cochran 37 (contending she suffers harm from “having to appear in proceedings” before an unconstitutionally insulated ALJ) . ”

“ They are instead challenges, again as in Free Enterprise Fund, to the structure or very existence of an agency: They charge that an agency is wielding authority unconstitutionally in all or a broad swath of its work. Given that equivalence, it would be surprising to treat the claims here differently from the one in Free Enterprise Fund—which we held belonged in district court.
And when we apply the Thunder Basin factors, we indeed come out in the same place as Free Enterprise Fund. ”

“ The ultimate question is how best to understand what Congress has done—whether the statutory review scheme, though exclusive where it applies, reaches the claim in question. The first Thunder Basin factor recognizes that Congress rarely allows claims about agency action to escape effective judicial review. ”

“ Such a regime “allows a mere party to supplant a jury as the court’s fact finder,” Hamburger 319, and it “effectively vest [s] the judicial power either in the agency or in Congress,” Lawson 1247. It thus appears likely that, “when agency adjudicators stray outside the proper limits of executive adjudication such as by depriving individuals of vested property rights, they must not serve even as fact-finders subject to judicial deference.” ”

“ Cochran and Axon. Tr. of Oral Arg. in No. 21–86, p. 51; Tr. of Oral Arg. in No. 21–1239, p. 67. But “agency action” is a defined term, one that embraces “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U. S. C. §551 (13) . Ms. Cochran and Axon are not subject to, and do not seek review of, any of those things. The other APA provision says “ [t] he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute.” ”

“ And Axon’s constitutional challenge to the combination of prosecutorial and adjudicative functions is of a piece—similarly distant from the FTC’s “competence and expertise.” 561 U. S., at 491. The Commission knows a good deal about competition policy, but nothing special about the separation of powers. For that reason, we observed two Terms ago, “agency adjudications are generally ill suited to address structural constitutional challenges”—like those maintained here. ”

“ Judges therefore “benefit from straightforward rules under which they can readily assure themselves of their power to hear a case,” Hertz, 559 U. S., at 94, while “adventitious” rules leave them with “almost impossible” tasks to perform that squander their limited resources, Executive Jet Aviation, Inc. ”

“ Third and finally, Cochran’s and Axon’s claims are “outside the [Commissions’] expertise.” Thunder Basin, 510 U. S., at 212. On that issue, Free Enterprise Fund could hardly be clearer. Claims that tenure protections violate Article II, the Court there determined, raise “standard questions of administrative” and constitutional law, detached from “considerations of agency policy.” 561 U. S., at 491 (internal quotation marks and alterations omitted) ; see supra, at 10. That statement covers Axon’s and Cochran’s claims that ALJs are too far insulated from the President’s supervision. ”

“ Cochran and Axon, so their cases may proceed in district court. Ante, at 17–18. But what happens when the factors point in different directions, some in favor and others against immediate judicial review? No one knows. You get to guess. [1]
II
Putting aside these problems with the Thunder Basin project serves only to expose others. We are told that consulting so many disparate factors is essential if we are to divine and give effect to “implici [t] ” congressional “inten [tions] ” to divest district courts of jurisdiction in favor of certain agency proceedings. ”

“ It reasoned that such a scheme did not violate Article III because “Congress has considerable power to structure [judicial] proceedings and to regulate the mechanisms that courts use to ascertain facts.” Nelson 600.
Next, in NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1 (1937) , the Court examined the National Labor Relations Act’s judicial review provisions, which required an Article III court to accept the National Labor Relations Board’s factual findings so long as they were “supported by evidence” in the administrative record. ”

“ Kelly, 397 U. S. 254, 261–263 (1970) (holding that due process rights attach to the deprivation of Government benefits) ; see also id., at 262, n. 8 (“It may be realistic today to regard welfare entitlements as more like ‘property’ than a ‘gratuity.’ ... It has been aptly noted that ‘society today is built around entitlement’ ” (quoting C. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L. J. 1245, 1255 (1965) ”

“ In compliance with that ruling, the SEC ordered a fresh hearing, conducted by a now validly appointed ALJ. That was the last straw for Cochran. Before the new ALJ hearing began, she sued the Commission in federal district court, asserting jurisdiction under §1331. Cochran’s complaint focused on the two layers of tenure protection all ALJs hold: By statute, those officials may be removed only “for good cause as determined by the [MSPB] , whose members themselves can only be removed by the President for good cause.” App. 60; see supra, at 2. ”

“ L. Rev. 559, 569 (2007) (Nelson) ; alteration omitted) ) ; see also J. Mascott, Constitutionally Conforming Agency Adjudication, 2 Loyola U. Chi. J. Reg. Compliance 22, 45 (2017) (Mascott) (“Cases involving ... deprivations or transfers of life, liberty, or property constitute a ‘core’ of cases that ... must be resolved by Article III courts—not executive adjudicators ‘dressed up as courts’ ”) .
A different regime prevailed for public rights and privileges. Unlike “the private unalienable rights of each individual,” Lansing v. ”