Transcripts For CSPAN3 Justices 20240704

Providers, giving you a front row seat to democracy the u. S. Supreme court rule animously that those facing ftc Enforcement Actions can chlenge the agency in federal court, prior to the investigation being completed. The oral argument for the federal trade commission was heard in november of 2022. The high court made a simar ruling involved in these securities and exchange commission. The oral arguments are about 90 minutes. We will hear arguments warning in case 21 86 axon underprice forcesft mr. Lent . Mr. Chief justiy it please the court, congress has expressnted this courts original juriion over all civil actions arising hundreds constitution. And it is Common Ground that congress has never expressly withdrawn or wrist restricted at jurisdiction with respect to the constitutional claims issued here. Instead, all the congress has done expressly is to give additional jurisdiction to the courts of appeal, to a rn subject to an ftc and citizens historic. Akronot subject to and do not challenge such an order, instead, acts and challenges the nstitutionality of statutes that insulate agency offici from president ial removal, and the clearance process by which axon is denied acces the courts. Nonetheless, the goveren insists that the of additional jurisdictiotthe courts of appeal orders not at iss he implied leap precludes Jurisdiction Congress expressly conferred. At argument does not follow from any explicit statutory that discourse has fashioned to decide the reach of implied pollution, all favor District Court jurisdiction re, just as in Free Enterprise modes. For first, any review mechanism that she did delay judicial review of a hearing now constitutional entry, until it has come and went, is not providing meaningful review. Second, the constitiol claims here are wholly ateral to the merits of any particular contested acquisition. D ird, and finally, not only does the agency lab expertise on these constitutional issues, it is wholly outside of its authority to declare itself unconstitutional or strike down removal restriction aljs but are located in an entirely separate statutory provision. Simply put, th is nothing in the statutory attacked, nor the Thunder Basin factors that pride the basis for finding into expressing grants of jurisdictions, and elimination of the jurisdiction for the claims issued here. Mr. Clement, mr. Clement, is th case distinguishable from Free Enterprise . Down this road. Ugh we have been we dont think it is distinguishable from Free Enterprise, justice thomas, oby some lower courts can disagree with us on that. But i dont think that there is any material basis for guishing the two, the specially when y look at the nature of the claims here. The nature of the claims here, the structural claimy go to the very existence of the ag and those are whollycollateral to the merits of any acquisitions. Thclaims are beyond the confidence of the agency. And the agency is not in a tion to provide meaningful relief. Could you take just a minu to set out just more specifically why the agency could not considerthese constitutional claims . Within its structure . What, i think he would have to start by saying what is acy done, and what will be reviewed at this level after the agencyissues in order . Sure, so if you startwith the typical case where th agency builds an administrative record, that i their position ona particular transaction, all of the claims hereare sort of cross cutting or even maybelogically anterior to any of that process, one of the two process claims goes to the clearance process by which a transactiongoes before the ftc, rather than the Justice Department. And that claim obviously doesnt really focus on ftc agency , but it focuses onexecutive branch action, be the ftc and then as to the more uctural claims, i mean, those are beyond the confidence of the agency fortwo reasons. One, no agency has the authority to declareitself unconsonal. But if you think about the double for cause removal riction on the aljs and ridicule are, the most logical way toremedy that violation at least following the logicof Free Enterprise fund would be to declare the second layer of for cause removal prov unconstitutional. That second layer of provisionis entitled five, five uscseven 5 21, it is not in c act. So the ea that the ftc could e another actof congress and a different ti the u. S. Code unconstitutional its completely beyond its caveat. But of, course that is exactly what District Courts do, on a daytoday basis. Ercising jurisdiction under section 13 31. May i ask mr. Clement about the scope of your argument . Ecause sometimes, as you ju responded to justice thomas, are focused very specifically onthe constitutclaims that issue in thiscase. Analysis lends itself to thate kind of focus you have other arguments in your brief, u know, sometimes you call them the plai text arguments, just about the y 13 31 and the review which would seem to go much further would seem to sweep in not just constitl claims, and statutory claims, and would seemto sweep inmany preliminary rulings, you know, rulings. Ly interlocutory it might be evidentiary rulings, it might bediscovery rulings. Some of those statutory arguments would seem to extend claims at issue here. Tutional so which of you eally arguing . Just again, i am really arguing to his case on the thunder bactors, that seems to be the ightforward way to win the case. If i could just take nt about the broader argument, i thk f you look at the statutes, he court were drawing on a clean , i would probably say the right way to decide these cases is o course ther jurisdiction, and there is e host of non jurisdict doctrines, like rightness and exhaustion thuld bly get you to almost the exact sameresult as the funder basin factors. Might quibble that thesessor, i factors that the co has come up with four jurisdictions really should go to nonjurisdictfactors, in this case they should be resol the 6 11 b one. But i am not a law fessor, i am here representing a client, and i think our client winds well under the thunder bay some factors. So wee happy to win on those factors. Co almost any administrative prcould be unconstitutional issues. Whether or this immigration issue. All of those petitioners are required to go through administrative prs, despite the faat most of thos agencies cant h constitutional issues. So i donw what makes this situation diffe other than perhaps, and i am not sure about this, the existence of the two disciplinary bodies . The fact the aff remo close challenge. But also all of the other due process challenges seem to be the quintial process dependent claims, ynt get more enter warned them that. Your argument seems to be saying that any rocess claim comes, what about the claim that there has been an abandonment, that the violated her Due Process Rights by failing to follow its own a classic due process claim. Thats, think, in almost ever other Agency Action. We wait until the end of the review processhe court to look at it. So it seems to be that you are saying that this is unfair, because i have to go through but going through the proc is what due process is all about. I dont understand why you are any different than any other Administrative Agencyto share who has to go through the process, a flawed process. And when italy and to have corrected. So, ju, with respect to due process and particular, i dont thin are arguing for special rules wrticular agency. Ook at the courts cases, and they go all the way back to matthews be eldridge, and mcnary, this would apply in immigration cases as well. The distinction that the court has drawn is between cross cutting due process claims that dont anyway depend the case. Mstances of a particula so if you think essentially on its face that the statute doesnt provide due process, then that does seem like the claim that is fully collate to the merits of any particular but what about if you w you dont care how you win. Meaning, once you are in a if you have been given an adequate process, could you still win . You are no going to, you are going to suffer the litigation cost, except but it basis you win on, does it . Well this just gives you another hole in pocket, another card in your pocket you can play if you lose. I dont think that is quite right, justice sort of mayer, which is that this isnt a case like el jay where there is a review process for losing your federal job, and all the plaintiffs wanted was their deral job back. This is not a situation where we want is to not have a seasoned disorder. Oh, it is, because your complaint asks the district to enjoy the fcc of exclusion from pursuing administrative enforcement action, your motion f preliminary injunction asks for the same thing. Absolutely so it is decide tied to the proceeding very directly . It is tied to the ding, but it is not tied to a cease esist order in the same way as the challenging e we believe that we suffer a here and now constonal inquiry, just from being ted to an unconstitutional Agency Process, respect to the removal strictions, and we think we suffer an injury the second that we are assigned to the ftc, department. The justice and effectively denied any those are the claims that we want to bring, they are not the claim that, like, we wanted to have three witnesses and we only got two and two, is if the alld have just given us one more witness that would have satisfied due process. Those are the kinds of claims theyre not wholly collateral, and those are the kind of claims that belong administrative process. But whats the remedy that you, sorry, go ahead. I was gonna say the examples you gave are pretty extreme to make your point. But it strikes me that your ction between structural constitutional claims and particular due process claims, d the proceedings, its going to bhard to draw in a large number case. Particularly if you prevail and people it makes a difference to when they can bring the constitutional all with respect, mr. Chief justice, idont know that that is the case, i, mean are asking for,as i stressed with Justice Kagan, is an application of the hungarian factors. I think what we have talking about really goes to the second factor about t means to bewholly collateral. Anont really think that that is thatdifficult to apply in the ocess context, if you think that the statutes set up and just dont have any witness, at is gonna be true in every single hearing . That seems like a case th arent gonna be able to share, but that is an easy case, anytime you get multi factors as a Thunder Basin,the application is going difficult, and i think in many cases. Look, there are goingto be educators to be sure, and i guess i, would you, know this is where i would sort of remind you that the statutory text actually is pretty clear here. And if we are going to have role for the edge cases, i uld rather live ina republic where he role for the edge cases which we erron the side of giving the citizen early access to the court, opposed to airing on the side of differing judicialreview. I, mean the court couvide a different presumptionashes pose to help in these cases, but i would prefer it if it was theesumption that was in of judicial review, after all,congress did pass 13 31 that does seem toomised people that if you have a problem with a constitutnality of Government Actions you can getearly access to courts of sorting out. But. , why doesnt whether ort is wholly collateral turn something extent on the medy that you are asking fo it would seem to me that one way to think aboutthe collateral myths of this, is whether when u are done with it the claim that you want bring instrict court, you would k to the agency and the agency would proceed. I think that insituation in which you have the type of claim maybe some of your rural claims with respect to the for example, if the remedy is justgive us a new alj, then there is a concern that what is happening llowing citizens go to the District Court is that theyre sort of super intending the agency s. Therefore you could say it is in the same way as if he went over and edy was to terminate the agencyprocesses. So why shouldnt we be thinking about the collateral nature of this based the remedy that you are asking for . So two things,Justice Jackson, first of all, i think the most sort of straightforward way to think out whether it is fully collatedoes it turn on the back cts of the particular case. Or is it a claim that would be the same no matter what the facts of thicular where the particular. Individual. Circumstances of an on your circumstances, and tter think it is fully collateral. To your point about the, remedy, i think that its favoring, especially on the removal. Because i think the problem is that there are s where the remedy you want is really to have your federal job back or the mind safety board, order vacated, and in those situations maybe it makes sense , yeah, you know, u are in the process, at least do an order, at the end of the order you can get it catered. That is good enough that is a meaningful judiciary remedy. Maybe im so, clearly i have a returning does not and we re so that your claim is such you know, the core constitutional claim that the y doesnt have the District Court because if you win, andgency is done. What i am concerned about is the interpretation that allows you to take certain claims over to the district cour have it impact the agencys ongoing proceedi, in a way that makes it one that that is what congress ind in terms of saving 14 3 so i guess i would just i think you are right that if you have a remet says i ought to be compl immune from this agens actions at all, that is something that does seem like it should able to go forward in District Court. But i think if have a claim that is effectively i shouldnt be in front of this agency at all as currently structured, that is equall a claim that doesnng in front of the agency. I think, as i ted to justice, thomas k it is particularly where we start thinking about right remedy for the dfor across remo restriction here. Now oby you can remedy a double for cross removal restriction by invalidating either layer of removt if a court were to the pattern of free enterfund, he would get rid of the second layer of removal restrictis, and those are in five u. S. Cities, 21. Mr. Clement, go ahead. Sorry, i just to know, can you say a little bit about what remedy want for youk fought claim . Are you arguing that everything needs to go to the doj tracked . Or are you saying you just want transparency on that claim . Because we have been kind of focused on the i think eit one of those would probably remedy the claim. So, you know, i think we would ask for what would probably be the roasted robust remedy, which is to send us to the doj, we want early access rt. But if a Court Fashion the remedy that says that, okay, are gonna provide transparency o this process, and i dont know what it would, be and everything sort of a through am goes to the doj, and everything and through z goes to the ftc, some things that would tell the citizenry, okay, there i a rational process by w you are being denied early a to courts, i think that would at least be unavailable. But obviously we have got stuff, we lost ithe get to the point of electing r remedies. Do you think that is a weaker case for immediate reinforcement action and District Court . And the removal claim . Ean i would suppose by one take on the scale, sure. The claims that go to the very existence of the agency, the structure of the agency is currently structure have to be, mind you, the strongest possible claims, but i think a due process claim discussion that is interior to the whole Agency Process wou be pretty high on the list as well. I could say one thing about why i t in addition to the existential nature of the kind of removal cla why that is such a strong case. Is because if you sort of think about like the theory for why it is that like a challe to kind of early Agency Action doesnt go to fedeurt, it st be, i think, on the theory, that, well and to look at to the article three, there is at least supervision by the article two branch that with some protection at their y. Article two circulation beinghe provided by the president is insufficient, then you are really saying, i dont have any states before the executivehe branch. And that really does seem like a claim that almost uniquely belongs in District Court. And then it gets resolved one way or another. And i ask you about for rprise funds and regular, the opinion in the ninth circuit really tried carefully part of elgin and Free Enterprise funds. What do you do as a permanent e fund that emphasizes the fact that it was the investigations stage, and that that would be the only way, therefore there would be no way er to get judicial review of claim at issue there. I guess the one paragraph on four 90 of Free Enterprise funds, how do you think we uld deal with that . Well i think you should deal with it by sort of applying it here and saying,actually, it is on all fours wit that situation. An, obviously, free entee because of the structure there, you have the unique sort of dynamic that there is about the boards activ and the review mechanism, dealt withcommissions activity. But with respect to the idea the only real way you can get review for the here and now entry that the Free Enterprise fund was sufferi was sort of to precipitate a contempt sanction and go to immediately. That is exactly our situation. To the cease and desist order. We have been trying for years get out of theftc process, which ve even offered to walk awayfrom the transaction. So we think just being subjectedto their processes as currently structured its our injury. That to remedy is exactly what Enterprise Fund. S in fre we couldtry to resist any cooon with theftc, sort of kept ourselves in co and see if they did something to bring us to federal court but this court has, saidwe dont have to vet the farm in thnd of way. Yourstinction of elgin, i want to explore it briefly. So, if you are bringing a claim, challenging the constitutionality of the statute that was being inveed or thebasis for the investigation, the enforcement action. You couldnt, or what is your answer to whether you could bring a challenge like that in district . Maybe theeasier way is just to articulate how i wo distinguish elgin, and if that doesnt answer your question, i am haprespond. But tome, the critical thing in elgin e party was challenging the very Government Action that thereview mechanism was set up to provide a special avenue for review. So it was theallenge to adverse m employment action. An the court held i think correctlyat it doesnt matter, what ur theory is . It can be a cross cutting but if you are challenging the exact same adverse major employment action, you have to hrough the process. So we were, like, if we waited unt very end of this process and challenged the season desist order, i think then we would in all force with el and i actually think no matter what theory was about point, we wouldto bring it in the court ofappeals, we couldnhat late stage challenge the ase and desist order i in a District Court. Me that is the way to distingu one last one, is your exact formulation of rule . A challenge to structure of the agency,hink its covered. Anything beyond that . So i would start with a dge to mathis formulation those drugs are exhausted and for seizures. So let me stop you there. Proced, it erns me. Openended nk that the widely presents some of the problems that chiefjustice and some of the others were pointing up. So it concerns me as, well which isy i was about to say, five procedures, thinking that the kind of cross cutting procedures that t turn on the circumstances of any particular. And i think that sort of, lets actually explain of the eldridge. Ry and matthew but they want to add one impopoint, that describes the ba universe of situations that you arealing with this kind, of like, specializ Appellate Court to review regimes. But there are other situations where you t into District Court 13 31, te the government making a fundraising argument, and a argument of thahe first case back in 2012. Because you had a situation where government, telling the citizens, hey, wait, challenge this termination, you to wait until we bring and forced action. Court rejected that argument and said nohe citizen gets into court under 1731. So i think the formulation with that slight enment that they had isright one for this class of but i think that the gloss you put on the procres language doesnt go all that far. I meen if you say it is a challenge to a procedure th extends to all cases, i mean . You agencies have a lot of proc. Just as courts do. And, know, suppose you claims something the way agencies mystery to witnesses, or kind of witnesses were allowed, or what kinds of crossexaminations. Or when subpoenas were issued. Or you could just keep on going. I mean, would all of th to a court first . I donnk so, Justice Kagan. And that is sort of the beauty of the founders basiors. Because if you are talking about a prral position that is put in only by a rule, and you wanthallenge that . I think you can say, well, that is actuwithin the agencys confidence to fix. But Congress Passes a new agency tomorrow, li it just says the system is gonna be dragged in front of there and they are going to be denied any ability to call any witnesses, i would think that you would actually want people to be able to get into court immeaty and say, well, that is crazy. We should declare that that restriction is unconstitutional. It doesnt turn on the circumstances any individuals so i ink that that is the right tool. But, you know i think our particular due process challenge, i think it is a strong case. Because it is a stes interior to the agen itselfs process. Can i ask, j the actual chal that you brought, the hardest of the thunder factors for you. Because basicallt we think about you have to wait until d. And often that is a lot of inconvenience, a lot of ee, people are very stingy and allowing interlocutory appeals, as long as you will gr [inaudible] [inaudible] what makes this different . So what makes this different is that the e at the end of the process doesnt rea go to the heart of the constitutional injury, which is being subject to the i thought you were going to. Say, that and i was trying to are prettogy costs to it. H sould think that when somebody claims thourt did not have subject matter jurisdiction, or when somebody cl that there personal jurisdiction to that person. Whereiminal defendant saying that the prosecutor was titutionally appointed, all of ese are basically saying that the entire process is illegitimate. And i should not have been subjected to it. So what makes yours different from th well two things, your honor. I mean, one, as to toval of provisions i the for that er. Is a big difference. Ns, there w is that all of the cases District Court, it has taken as a given that the ar three judges artimate, properly appointed, properly insulated, good behaand all of that. Whereas here, on ae two claims, we arcally saying that the proc are stuck on until we get to Article Three Court is it constitutionally def at structural ma so that does seem kind of fundamentally rent. And then with respect to the other claimean, nobody says in the sion of the district cour court of appeals, laterder kind of context. Nobody says that the distr court is perilous to hear the claim in the fistance. It is just the District Court is perfectly powerful to hear the, plan st ruled against you. In this situation, if we have a claim before the agency, like our due process claim about clearance process, that its interior to the agency, the agency has no business deciding it, but doesnt seem analogo the situation in most of the collateral cases. And course, even in the collateral lower cases you do have things like double jeopardy where you can conceptualize the injury as really being subject to the procedure, or the proceeding, rather. And i wou s that is a fair description of the claims that were brinng thank, you counsel. Justice thomas . Anything furth just briefly, mr. Clement, there is a lot of discussion about preaching a final order, and assuming, i guess, what percentage of these cases actually goes to a cease and desist order, and what percentage actually are real . So i, i, mean i dont have the exact dominator i am afraid. So i cant tell. You there is overwhel majority of these cases that you seout in the process. And so there is no appeal. Its a relatively small number of these cases where t party has kind of a wherewithal to endure the whole process, and one of the things that it does sort of skew the numbers is that the ftcs position has been that they essentially, it wont accept a settlement unless you forego your and so it is really, you have to be very hearty to make yourself all the way through that process and preserve your objeio on the socalled under factor, is it simply inferences about congressional ts . That is what they are they the whole ball game . Is there anything else that th court should or must consider in determining whether, in a case where we are under this basin line of cases, anything else that is proper for us to consider . Or that we must consider . So just as leader, i guess if you want to sort of save the, Thunder Basin facto think you would construe them as g helpful guideposts to determine the other underlini legislative attempt. You, know it is more traditional for this court of course to discern legislative and i think if you did in for you would end up in a world, as i wa describing to justice gan, where you much more readily recognize that theres jurisdiction in the District Court. But then you start flying all the othtrines like i cant help but look at the aising factors and think that the court was sort of cheating a little. And sort of front loading some of those nonjurisonal factors into the jurisdictional inquiry. T to be that as it may, we think you probably got to almost the same result by applying fidelity, brightness, primary jurisdiction, all of those other doctrines. So the mayor . Question about the impetus to settle. That is n an Article Three Court. The number of district cou cases that go on appeal is very small, very true minal law cases where most are settled by and most prosecutors require waivers there. So i am not quite sure that merely because a good number of cases settle, means that you still dont have an adequ these claims before a court . Ise which is what i thinkunder basin justice under basing was based on. Which is if you have the chance to raise it, that is enough. So i guess what i would, say idont think my answer to justice thas meant to subsume l free factors or be a compnswer. But i do think it orth recognizingnomalous this situation. Because if you take the case of my client for ple, they offered basically to walkaway from the transaction and infuse the tial Acquisition Company with cash. Now, it seems to me that we in front of an Article Three Court, and with the Justice Department prosecuting now youe getting to the thank you. Okay. Tell me what i am missing. 13 31 says that District Courts jurisdiction over these claims. Nt any other consideration. And normally we cons District Courts bound to when they have a claim. Tion, and then we have the ftc act that says that seasoned disorde c be reviewed in the course of appeals, rather than the District Courts. Those are the two statutes. We dont have a cease and desist order here, i would have thought that might have been the end of the game. Thunder bay some factors would come in handy if we did have a cease and desist order. In that circumstance, then haps we would make you wait and consider all of these financial factors about interfering with inter agency prngs. Again, what am i missing . So i dont think you are missing, anything i think you will love mr. Barrs argument later today. But what i would say, i do think that if you go with no not simplistic, go ahead, go ahead. I didnt like, simplistic straightforward . Actually, how about that . Next, well see it forward, all of those seem to apply. Simplistic was a bd choice. Could have been worse. Bu you go with that approach, i do think district coare going to have to be ready to apply a whole bunch of, you, knfairly well established occurrence, right . Exhauti, primary jurisdictions, maybe extension, completed all the . Maybe that is simplistic, but. They do do that all tme. I dont think it is like entirely cosmic h that if you step back and say, what would the result be of applying all se other non jurisdil doctrines, i think you get to a sit that said they ha claim, its fully collral, he dont get meaningful re and the agents dont have anertise, that is going t go forward to the merits in the district cour. And if one oe or two of those actually arent satisfied, and probably are going to get ripped up by rightn exhaustion or something some it would be a cleaner , it would be a simpler world, a more textural world that route. But i think you are going to end up in kind of the same place, which is why, re here happy to wind on the fundra factors as well. You hadnt had a chance to address the governments apa argument, dide the waiver o we do feel like we have anything to fear under the apa argument. We actually think the apa gets you to a similar place. And we do think the apbest understood as a non jurisdictional argument. One of the many. And it does basically, su know, he should apply a specialized nistrative regime, but not where it doesnt provide adequate relief. And we thin is a classic situation where it doesnt provide adequate relief. So another way of sort of answering your first question is tthat i suppose you baptist just as a it glossed on the apa. But i do think it would cause you under any circumstances to sy at these crimes cant go forward to the american District Court. Justice kavanau Justice Barrett . A quick qu, so Justice Kagan asked you about interlocking appeals. And it is true that theyre favored in all the contacts in which justi kagan was saying. I have been thinking about thos i was reading your briefing thinkint your argument. Nt to ask you if i am making this distinction in the right way. When we are talking about appeals or interlocu appeals from District Court to talking about 12 92. , we are and finality under 12 92, and acceptance to what can be final. So, you, kno is a collateral order . It can be treated as for that. But this isnt that, really. Because we are not asking in that sense of fidelity. Teral and we are not talking about looking at 12 92 in a definition of final. Reinfot challenges and the there is no appeal from any kind of order that may, right . So what are we suppos draw. Because i had some of the same qutins in my mind to, what it was a draw from that Contacts International nothing . And you c draw something, which that i do think that even in this context, it is focus on a different question, but there is this constant concept of whether the claim you are bringing is collateral from the merits. And i do think that is a useful thing to borrow and b over to this context. But i also think also importa recognize the differences in the context. Because an Article Three Court, when have some claim that doesnt qualify for collateral order doctrine then you still have gotten a ruling by a properly structured entity that has every confidence to decide the issue in your. Favorite we dont have issues where we can see the District Court doesnt have any ability considers the issue, but cider section yeah, we accept that notion. So, you already are iuch better position if you are in District Court. Again, the thrust of complaint, as we would love to be in District Court fighting the bona fide that position. I do think a different concept. Thank. You Justice Jackson . Did i misunderstan that you just said that your client had not received a cease and desist order . Is there such an o at issue here . I mean, not at issue, did you get a cease and desist , your client . , know the cease and desist order for purposes of the statutory reviovision is the culmination of the ftc process. See. So we havent gotten that. But you are in the acti Agency Review ss . Well it is a little bit complicated, because they did a stay at the process out of the nintircuit. Absent that, saying the agency had decid that they were going to go forward respect to your client . Not on thning after we filed our complaint, on the afternoon i filed our complaint. I see. Look, i dont know, for purposes of the argument i making ti dont know that anything tur that. For some of thes nonjurisdictional doctrines, like abstention, can i just explore that though . Becauam wondering why anything does turn on that. And in otheds, when the agency decides to forward, i would assume that they are sort of in, you are in the channel then of Agency Review, opposed to cases like Free Enterprise funds they were juthe investigative world and they havent deci. And so once you are now in the agency proce i am conc Court Jurisdiction to sort rict stay the Agency Process or do and ruund. It and i am wondering why isnt that a legitimate ncern . Given a statute in which it is pretty clear the we are in the channel, had given exclusive review or exclusive jurisdn to the court of appeals to review a final order of the agency. To kind of answersice jackson. The first, is generally for jurisdictional purposes, its complaint that matters. Even a few to sanction, i think we are on the r line but the second and probably responsive to the answer, i thi this is why you have to look at the nature the claim that is being brought. If you are bringing a claim that is really about the agen process, and that is your beef . I tt is fine to say we are in the channel of review. But if are saying this whole agency is unconstitutional or has no business exercising jurisdiction over this you are not a regulatory general, you are in a regulatory mall. That is your whole claim. We dont beloere at all. And it doesnt matter to you that as a result king that second kind of claim, we are terminating, i mean, i am with you to the extent that you say i am making that claim and the point is that they have no jurisdictional over me, and District Court, if you agree, is out, and the thing is over. What i am cned about is drawing a line that involv you returning to the agency after you havea claim in District Court. Because it seems lik District Court is being used to superintendent the Agency Process. Rather than making the very kind of claim that you say you want to make in this case. Two claims, what we have three, clefense are you think about, when you thinkt our claim we shouldnt ignore the ft at all. That seems to be your parad we really forget there, at least onhe forms of relief could get is essent to be sent to the oj. But then if ynk about our removal claims, we are basically saying that we shouldnt be sent to the agency at all, as it is currently structured. The ag cant help us with that claim. They are powerle do but the District Courts. And and what thrictcourt can do is, here are the if you get to the merits, they can say, you know your righ . Five usc, 70 5 21 is unconstitutional, aljs can be moved. By the msp beatable. And in that worl now you are back to the agency. But in our, view you are back in a Different Agency where we at least kind of know who to complain about if we think we are being mistreated by the alj thank, you counsel. Mr. Stewart . Mr. Chief justice, may it please the court. It is a longstandinciple of Administrative Law that courts will not intervene in an ongoinagcy proceeding until that person culminates in a rural order thimposes sanctions or determines legal rights throughout obligations. Consistent with that principle, the ftc act review provisions governing andadjudications auth court of appeals review only at the final commn as it orders the termination of the proceedings. The apa confirms that review mechanism is exclusive, and further confirmsthat steps takenduring the adjudications are subject to revithe review of the final Agency Action. Those provisions taken together made clear that District Courts have no authority tointervene constitiol challenges to the commissions conduct of ency and education. Actrgues that review a final Commission Orders will provide an adequate re because it will not be protected from the burdens of associated with the ministrative proceedings themselves. But this court heatedly rejected similar arguments, both in the review context, and in applying the collateral order doctrine. The therefore should hold that the district lecture station over this suit. In the ative, the court should hold a person lacks a valid cause of action because th commencement of a commission adjudication is not immediately reviewable. I welcome the courts questions. Would you at least get give us your clearest textual argument, as Justice Gorsuch mentioned, you have the ftc act, and you have 13 31 could you make, could you at leaue to actually why there is no jurisdiction between those two i guess the other thing i would point, t justice thomas, is the apa. And specly five u. S. See 704. H is reproduced at page one s to our brief. And relevant sentence for these es is a preliminary procedural or intermediate Agency Action or ruling, not directly reviewable, its subject to review on the review and the court and fcc versus standard oil discussed the implications of this provision. And iminfor a second that this second appeared as the second set, review provision. A are the first sentence with words to the effect th person who receives a cease and desist order may follow position for reviehe court of appeals. And then t second set preliminy eps taken during the adjudication selby reviewed on review offinal agency option. That would be powerful evidence that congress intended any review of the seatin steps to occur in the court of appeals, when the final cease an desist order is issued. And the language doesnt have any less by virtuhe fact that it appearsin the apa instead. If i understand your answer, and im sorry to interrupt you, but iting to make sure that iunderstand, 13 31 grams ofjurisdiction to the District Courts, the ftc act grants of jurisdiction to courts of appeals for cease anddesist orders. There is no withdrawal of jurisdiction,anywhere in those statutes. And so you ask us to turn to is that right . Cern tha well we are asking think the apaconfirms that the provision gove review offinal season and desist orders is intended to cover not only the final order itself, but any challenge to the matter in which the proceeding okay,so we are on to the apa nowre past theftc act, and what do you say, first, to theargument that that conn bythe government was forfeited away . And second, what do you say to thargument that the sentence ve pointed to in704 speaks to an Agency Actionthat is not directly reviewable. Sject to review on the final agency order. Al Agency Action. Agency action is defined a rule in order of license sanctions over release. And we have none of those gs here. So we dont have Agency Action. What do yoto those two arguments . I think as to the first point i dont think our court of appea quoted the specific sentence from the apa. We did make the argument in the court of appeals that they are challenging is not final Agency Actionsgin with, because understand oil, the commencement of Agency Proceedings is not reviewable at all. So that argument has been preserved. The second thiould say is that i think Agency Action is at issue in this case. What we are really challenging as the composition of the agency or the question of whether it is constitutionally structured. But osly as a medical matter of article three, a point of couldnt get court simply by saying the relevant statutor im not concerned about what the of his. Saying i am concerned about where is the Agency Action that would implicate 704 . That 704, the senyou rely on, speaks of Agency Action being reviewable, upon the final order. In this case where is the Agency Action under 5 51, i think it is paragraph 13 maybe . In this i am just struggling e where that is present in this case. In this case i commencement of the ftcs nistrative adjudication, commenced by the ftc and the assignment of that proceeding do analogy. The point i was making is a point of cant get into court simply by saying that the statute is unconstitl because the agency is improperly structured. In order to h article three standing, the plaintiffs would have to say that the agency is doing something, obout to do something that endures interests me. And in this, case the agency thhey were about to do, becauseey, said the suit was filed a furs before the proceeding was commenced, he thing that mr. Clement is cong complaining about is menstruated issue and was comments. Had there been no adjuon commenced, perhaps axon could have found do we have here a rule that orders the license sanction or release . But the whole thing, we dont have that, and thats if you dont have any of those things . That is why we dont have Agency Action, but if mr. Lieu can haerim order, i mean, there are all sorts of interim orders and interim releases that even agency can constitute Agency Action under that definition. If the commission had given no indication that it intended to commence administrative adjudication against exxon, then axon would clearly have lacked standin raisethe claim of the alj were improperly isolated from val. Lets see if we have a summary of . It actually, for putting aside other things. E dont have anything in the f, we dont have anything in 30 31. We have to go to the apa. We have to find that you didnt wave, it and we have to agree to yourunderstanding of what Agency Action is. Is that right . Well youcertainly have to that a plaintiff needs to identify and Agency Action in order to challengethe prtion or structure of the agency. Ut i think that that is basic Administrative Law. I dont think that any litigated for justice on the court would say that i will take bosnias. I dont understand whyyou have to go to the apa, mr. Stewart . Mean, you have a statutory provision that says thatthis jurisdiction overthese cease and desist or other final orders in thecourts of appeal, that jurisdiction is exclusive. He question is, what does that subsumed . And, i mean, you might be the apa as kind of an analogy to all be on hat question. But you can answer that questthout the apa normally in our system we understand thatwhen you give excl jurisdiction to a court as to a final order, it also subsumes a whole lot of interlocking things leading up to it. I would agree that we dont need theency, that this would be the logical inference to bedrawn from the provision at authorizes the court of appeals review of a final mmission orders. I think it is more than analogy, because i think the apa is not simply ute that covers district urt suits in circumstances where no special review provision exists. Th apacovers provides basic rules of the road even for, special review may ask . Go ahead. Go ahead. Doesnt Free Enterprise stand as a pretty gentle barrier to your argument . No i think there isthree distinctions between this case and nterprise fund, the first is that the court and for enterpridstressed that in order to trigger an s e c adjudication, and thereby ge judicial reviews under the exchangeact review provision, ee Enterprise Fund would have hato deliberately tted a violation. And ect itself to line of this court decisionsong th say that we reallyrain to provide judicial reviews that are not ingent on committing a violation and subjecting self to penalties. And the court in dard oil addressed this point where the court was explaining y the requirement to participate in the adjudication lf was different from what was that sue at last. And the court said in abbott labs who are dealing judicial review of regulations, and the s imposed legal obligations, you could get penalties, could be subjected to penalties, if you violated them. Thought it was pretty clear t opinion that the availability, tnt of judicial jution in under forms wouldntead as an implied removal of jurisdiction an 13 31. Well the other thing that was different about Free Enterprise fund was that in that case, people were not, the plaintiff was not coing attached to scc officials that conducted the adjudications. Were complaining about the removal protecfor the pco b. Members. And there was only a no, but boards activities were fully unhe supervision of the agency. Yes, but the was there challenge was Ongoing Investigation that affected them on the ground. It had only an attenuated and speculative coion to any potential scc adjudication, here are the challenges adjudication itself. He another, say the peopl protections suits or ftc aj, they have standing only if they were involved in an ac or imminent ftc adjudication. The thing i would say, in elgin, which was decided to years after Free Enterprise ons, the court said that we dont distinguish for purp of an exclusive review of provision between different types of constnal claims. So in elgin, you understand the response from your friends on ter side the claims there were intertwined with the proceeding itself before the commissi tertwined with the proceeding itself for the cion, while in this case it doesnt matter what the commission is going to do under your friends claim. It is still unconstitutionally constituted. I thkr. Clement, with respect, going back and forth between two arguments. That is, he said in this case our claim is systemic. We are not arguing about ything that will happen in any particular education. We are arguing about the way the commission structured and the way proceedings take place gene. Then when he was asked to discuss collage acknowledged that the claim in that case was that the federal statute that provides for male only Selective Service registration was unconstitutional. That was the clathe elgin plaintiff claims. He said it doesnt matter that their legal theory was broad and sweeping. What matters is that they asserted that legal theory as a vehicle for trying to get their own jobs back. We think he was right when he was talking about elginb we think the same thing is true here. What axon is complaining about is the fact that they are in a certain forms of declaratory relief but the only injunctive relief it saw, the only tangible change in the agencys behavior that it sought, was t join the administrativeedings. Adjudication. Under elgin, the fact that r constitutional basis for seeking that relief is broad and sweeping does not mean they an they could get into coure unless you have a sentence finisher there. No. Iwas pretty surprised when i read your brief, mr. Stewart, becausethree times in the last couple of decades have confronted a case like this one and three times we have used Thunder Basin to decide it. Your brief does nottalk about under basin until page 51. Iesnt use it doesnt talkout Thunder Basin at all and the summary the argument. Uess i read your brief but iing to figure out is do you think you lose under Thunder Basin . I thoughtder basin was the law here. We think that we win under Thunder Basin. I think mr. Clement thought that the court and thun basin was tilting the scales against the claimants. I think thunder bay sun perhaps could have beenwritten even more vigorously if it sa certain things that we are treating as implications are in fact by the text of the apa. For instance, court has said repeatedly when congress provides for a comprehensive and specificreview mechanism gove a particular class of agency conduct, we will often inferfrom that detail and spity that itis intended to be exclusive. That review through an alternative District Court mechanism is unavailable. What we intend it to be i important part in our brief. That its not an inference. The apa actually says that. And on the age of the appendix to our brief, five usc 703 says the form of proceeding for judicial rev the special statutory review proceeding relative e subject matter in a court specified by statute, or in the absence of four inade there of any applicability form of legal action. Again, the apa actually says if theres a special statutory ew mechanism, and if its not inadequate, then you have se that. Review mechanism in district in the absence or inadequacy of a special review anism. So we were trying to respond to the argument that Thunder Basin is on thin ice because its all implication by saying, no, there is specific langua the apa that says the same thing. What abhe argument that Thunder Basin either support to jused on its actual element, or it doesnt . Im trying to understand your argument with respect to the collateral nature or not of the claims that are being made in this case. We think some t basin supports this. Meaningful review available h the special review provision. That maps on precisely to the apa language about inadequacy of review. We say this is adequate because at theend of the day if a court agrees with their cotional theory, it can set aside what about collateral . Isnt that the hardest part for you . I dont think it is because e Thunder Basin test refers to the collateral to the review provisions. In our view, this is really the least collateral thing you can imagine. That is, it is not like in thbasin or in elgin, where the plaintiffs was complaining about something that happened in the world. The requirement that employer post a notice, or the termination fromemployment. Then the question was, do you have to go through this review scheme . Here, the review schemeis the ise thing they are complaining about. We think that meaningful reviewmes no review . Do you think a party gets meaningful review unless, at the end of the administrative proceeding,it cant get any review of its claim . I think if it cant get rid of the claim, tuld be correct. Sure, then it has no revi so what does the word meaningful add to it . I think what the is perhaps getting it is that in circnces, for instance, like digital equipment. The children quid and involved ina situation in which the fendant said, im sorry, a better case would be mohawk ere the question wasshould mate that were arguably subject to theattorneyclient privilege be turned over. The District Court saidno and the question was is that immediately appealable under thecollateral order doctrine . The court said collateral der review, thatif these materials are introduced to trial andthat is later determined to be air, you can geteight of the judgment and that is good enough. The courtacknowledged that would not undo the whole harm of turning over privileged materials because the privilege was againstsclosure at all, noly about the introduction in court proceedings. But this is good enough. And i think similarlyre. And tokind of proceed directly to the argument that axonis making, the prime argument is why review at the end of the day wouldnt be equate, is that you wouldntsave them from the burdens of the proceeding. They would still getview the alj and commission ofrough adjudication. Hat is the kind of argument that the has rejected time after me. In fcc versus standard oil, the claim was therewas in and it inadequate evidentiary basis to let me ask questions then, its simplistiaps. What sense does it make for a claim that goes to the brain structure of the agency . Having to go gh the administrative process. I think we would say two things, and i will say what i ally believe to be less important point first. The first is the ftc commisrs probably dont have anything about their own removal protections turt would find useful, but the commners do have expertise and the way the educations are cted. So they couldsay, it might seem like a black box to so else, but here are the criteria we used to determine which cases will go to court no, lets take the removal claim. Thats really wha thinking. Ets just start out with that. I would say two things. The first is, even as to that, the ftc commissioners could say heres what we think ofas the advantages and disadvantages of removal ections for our aljs. The agency couldnt declared the statute unconstitutional, so it could not provide relief on that ground at the end of the day, but it could still provide mething that could be useful to a reveal in court. The main actical advantage, the main reason we think it makes sense, the reasons the cdentified in ftc versus standard oil. First, you avoid piecemeal litigation. If theres ultimatelyse and decease entered, it may well be axon will want to lenge it not just on the ground that is improper removal ections, but also on the ground that violation. Itrust error and the conduct of the proceedi oil, by deferring review until the end of the day, nsure that all of those challenges can be lidated in a single proceeding. But this argument about the re status of aljs hangs over everything. Everything the en is doing. Get this decided . Interest what, we actually have a case out of the fifth cir in which the court recently denied a rehearing on block. In which the fifth circuit has held that two layers of removal protections for the aljs to violate the constitution. So we do have a prospect getting that to the court, and gett final resolution. Thats the way these issues have been decided recently in cases like our 3x, know what canning. You had systemic challenges to the way that agency adjucions were conducted, but the court has always resolved those challenges in the context of an appeal from an aagency adjudication. To go back to your prior qu, the second thing the court said in standard oil, as advantage of different review, in addition to the fact that youreview avoid litigation is that sometimes theagency adjudication will culminate ina way that makes judicial review unnecessa so for instance, if the ftc ultiy agreeswith axon that there was no antitrust violation here, the co standard royal has pointed out that its traditionally been seen as an advantage as opposed to disadvantage i gather the one in the fifth it as well. Dt that underscored the for a direct proceeding to race constitutional claim rather than waiting however many years before the agency . This is true of deferral ew generally both in the coll order doctrine and the ency review context. Yes, when allenge has been found to bemeritorious, we will almost always say looking back on it that it wouldve saved e time and trouble if there had been a more expeditious thats the case respect cases that has a constellationf to have a go over and over and over again. It does make a case for a need fordirect resolution of related claimtty strong. As we said in our brief, review isavailable in extreme ca for instance, if an ency had simply flouted the law and in the wake of lucia had continued to t adjudications through aljs had not been appointed in conformity with appointment laws, then the review could have been grted. But i think it would be perilous to try to identify a class of systemic lenges that, from recent experience, we think are sufficiently likely to proceed, that th should go to the front of the isnt itlittle awkward that we would think that the apa, or whatever, ludes 1331 jurisdiction to resolve these aims, but it does not precall rates, act, jurisdiction in the District Court, to bring claims . What if mr. Clead simply ed this as eight men dames petition, suggesting the ftc had acted wholly without iction. Thats a classic argument. Because of our president with respect to val. He certainly could have made argument. Thewould be in District Court and then it would be okay . No, first the petition would have to be filed on the court of appeals. 16 51 authorizes courts to issue ritz in eight of their iction. Okay, so you would have been in the court of appeals. I could have gotten to the court immediately. Would you agree . To raise this claim if you simply styled it under the act rather than under 1331 . The only claim he could have raced under mandamus is that he had a clear indisputable right to this relief. Well, i think thats the nature of this argument. Clear and undisputable. Oval is lets suppose it were. That he could do that. Oh, it would be clear and indisputable if the court a Free Enterprise fund had said, and our holding over double ppliedto adjudicative officials as well. The court a freeEnterprise Funded the opposite of that. It saire specifically rerving the question whether adjudicateof officials are to be treated differently. Mr. Clementsmay win on that argument infullness of time, but i dont think he could have that he had a clear and indisputable right. What does that precl1331 but not all writs . Again, i dont tbout it as the apa preclude. In apa confirms inference that the court of app is the only court to exercise review. In general, the cf appeals jurisdiction is limited to the final c and desist order, but we cited two cases at page 50 of our brief say, when the all writs act refers to issuing writsin can meet not only a pendingth appeal, but a potential appeal. So the courtthat could review the cease and desist or as a form of ancillary jurisdiction to super intense the administrative process to the extent of being able to step in if theres really in egregious deviation from appropriate practice. Going back to Thunder Basin, i told mr. Clement that i thought his worst factor was meaningfulreview. I think the othertwo factors are pretty darn bad for you. On expertise, the court and free entee fund, whatever distinctions thatmight be as between Free Enterprise fund and this, case ourt in Free Enterprise fund just says you lose an expertise. Then on colll, i think just the or understanding of what we mean we use that term is is it unrelated to be subject matter of the dispu a claim that goes to the legitimacy of the agencys structure as a whole is completel unrelated the subject matter of this suit. So why arentose two pretty easy winds mr. Clement . Even as to the experti factor, the scc may have lacked expertegarding the way which the removal protections for the pc you it certainly has expertise the way adjudic are conducted. The second thing i would say is his were a challenge for instance to a rule of evidence that bound t, and it was being attacked on the ground that it violated do bra size because it did not allow in the proceeding a sufficient opportit to rebut agencies charges, we would surely say that challenge has to go through the administrative whetherue process challenge succeey be unrelated to the merits of any particular allegthat a regulated party has viol the ftc act. But its still not collater to the review provisions because it goes to ty in which the administrative adjudication well conducted. Here we have basically the same thing. The challenge to the removal protections for the ftc commissioners is a little bit differcause the ftc does a lot of ohings. If the commiissued a rule, then the rule could be challenged on the ground that the commissioners were unlawfully protected from moval. That kind of challenge is not intly linked if we can sort of cut to the coreour argument. You seem to be saying something like, its not collateral that it arose from anenforcement proceedings, but almost everything is going to arise from an enforcement proceeding. You are basically making the ateral inquiry do not work at all. I think theres a difference between asking did it arise ell, did it arise from the enforcement proceeding and was proceeding . At the enforcement for instance, the statute that covers the ftc exchange act aues the s. E. C. Ssue temporarily cea desist orders that constrain the the adjudicationis ongoing. And the exchange t specifically provides for strict court review of those orders because they require the y to do more than participate in theproceedings themselves. They can strike e partys freedom of movement outside the proceedings. And could be viewed as collatecause, even though they arentingent upon depende in adjudication, they are still not part of the adjudication is resolved. Tffect conduct outside of the scope of the proceedings themselves. I will say one other thing about these courts collateral review doctrine, collateral order doctrine. Bothgency, im sorry finish yought. Both the Agency Review context the collateral order context, really the only exceptionthe court has recognized general principleat you cant get the burdens of the proceedings. The only exception to that principles claims of immunity. He court has had verse rulings on the double jeopardy clause, on state vereign immunity, on qualified immunity, theycan beat a field comedian, but other claims that would terminate the proceedings cant. T we have here is the farthest extreme from a claim of immunity. Justice thomas . Mr. Stewart, im interested in how that review would look how do thsider thec constitutional claims here . Consider them at all. Ill not and the ftc, if it procee that point, if there was an appeale ftc, hes right a federal statutenot declare unconstitutional. But it could s heres what we think of as the strengths and weaknesses of getting removal protections to the aljs, coming at it from a position of expertise. The coro point i would make, in ftc versus standard oil, the court said we dont ticipate that the agency in the cour the administrative proceedings will reconsider its origina determination that there was reason to believe ation had occurred. So the justificatio for differing review was not with the court expected th agency to shedmore light on it in the course of itsproceedings. And the remedy i assume that they would like is a injunction against having to appear before a sion or a al j. They think is constitutionally appointed. So how did they get that remedy atcourt level i think the remey would be entitled to at the Appellate Court level would be making sure of a cease and desist orderand get the court of appeals that ourrationale for taking the cease and desist order is that we think that the aljs areunconstitutionally insulated from removal. That wouldeffectively preclude the ftc from using the adjudicativemethod in any case that could be appealed to the eighthitunless im sorry, the ninth circuit, unless the removal protection was eliminated. Nd if the case ever reached court and the court said it was right to vacate the cease and desistorder because we agree that the aljs header unconstitutional removal protection, this court would specify, what is the perimeter, what is statutory,et cetera, et cetera. And on the factors, doesaxon have to win allthree, do you have to win all three . Or is the appropriate courseto balance how theyrk. I think that if axonone on factor one, that would be sufficient under the a, because the apa is the efficient i wasworking towards Section Three says that the formal proceeding is a special utory review proceeding except for an absence or adequacy thereof any form of action in District Court,and i think the implication of that is that if prepared with e first factor that it owed that the there was no ingful relief at the end of the day, that would be tantamount to ng that the specified atutory review provision isadequate for the purposes of this sort of claim, and that would litate this in rict court. And so if they lose on the first factor but on the other, to what happens . Like they have to win on all i think that the first factor under txt of the epa is the most important factor becausesays that procedure unless it isry inadequate. The categor that i have not mentioned in which the collateral r could be relevant is that, suppose at the same time axon had pending adjudication, and it issued a rule or regulation that caused axon separate harm. There i a separate provision in the ftc act that authorizes court of appeals review of regulations, and that sor dispute would clearly be ateral to the adjudication. It w be a legal disput between the regulated party in and this is really kind of a simple question. Maybe mr. Also could address it when he delivers his rebuttal. Es axon have to win on all three . Do you have to win on all three . Or can either of you win if one or more factors going one ection and the other factor actors going the other direction . Im not trying to be obstruct for us, but i think that it depends on the holding that this is collateral. But i think that as so lo it is unrelated to the merits the claim, then it is collateral even if it is a tackle in the wave of education will be conducted. I dont think that that will be sufficie. Okay, thank you. Mr. Sotomayor . Mrs. Sotom [inaudible] the ninth t holds, and make some sense to me that the collateral should be ousted or not that the party is usin reverse the act decision, but that definition does not sit with eldridge. I think i could be wr, if i could say so correctly, that it completely . Ridge dealt with matthew v. Eldridge dealt with cific thought pattern with indiviad been receiving Social Security benefits wformed that they were informed thatth Relevant Agency consider them to be no longer toled and therefore their benefits would be terminated and the specific complaint in matthrsus aldridge was my benefits were terminated before i received a hearing. They will entitled to hearing down the road and they could get retroactive if its if their benefits were terminated and then at the of the day they were bound to be entitled, but thld be an interruption of the stream of benefits, ae court said, that is sufficiently collateral to the overall proceedings that you dont have to use the review mechanism that you use after your benefits claim was finally resolved. But i th that case really has a close resem to the cease and desist order that i mentioned earlier that is sometimes you have situations where you have a ong proceeding and then you have a dispute about what rus will apply while the proce continues before the proceeding is resolved, in the that the court said matthews versus aldridge, the claimants did not hav any problem with the totality of the proceedings that would be used to make a final determination of what they got with the benefits. Mr. S, i have a separate question. I think that are three claims, constitutional claims here. So the remov whether or not they liked t [inaudible] or not that they can advise us about that, in educatio that is a pure legal question. Ay . Your constitutional legal estion. [inaudiblees the same way. The difference in the clearance process is combined with the vestigative prosecutors the adjudicative klain. The stakehol in process claim. And i think that the chief was right. Where you draw that line is reallyto draw. And so tell me what the age could tell us aboutther two councils winning until the end . I think the first thing that box claim, the contention that there is either a sufficient proces not a sufficiently transpar process for deciding when we go to court and w we commence Agency Proceedings, that is the furthest removed from any contention that th president s of this court has more lets decided. It is a waste of time. I guess w would say is that the attemp distinguish among these claims, it is contrary to the courts president s. That is that it was decided years after Free Enterprise spawn and a court said that would be unproductive and confusing to try to distinguish among constnal claims in order to determine which can go forward immediately and which have to wait until the end of the day. What the focus ought to be on is what Agency Action are you challenging and what relief are you seekin, and here they are challenging the commencement of in adjudn. They are seeking injunction a constitution and it doesnt matter what the different theories of relief are. Those are thent points for purposes of why g into court. Justice kagan . On elgin, you emphasize that the court said just because it is a constitutional claim does not mean ou have but you can avo Agency Review process. That case definitel helps you, no doubt about it, but then Free Enterprise makes clear, and then real few years later that some constitutional claim can avoid theAgency Process, mainly i think on for90 claims going to the boys existence. And think where the confusion is common in the courts of appeals, the courts appeals been very explicit about trying ure out the distinction n Free Enterprise and elgin is that the next para Free Enterprise waonding to the governments argument thatoh, you could just get reviews afterwards and the court said not i particular circumstance because the court, becae plaintiff was challenging theinvestigation and said there might not be a final sanction. The question is really if you st taking within the president s, is that second paragraph for Free Enterprise, is that justresponding to the governments argument, or is that justsetting forth a condition that isnecessary before you can avoid theAgency Review process. I think thats what the court ofappeals has zeroed in on, and i would be interested in your response. I think the court and Free Enterprise in the paragraph you referred to, the idea that in order to triggera scc adjudicthat you would have to commit a violation deliberandsubject yourself to penalties. Think that that is really the heart of theopinion and in that respect itwas not mounting anything new. It was drawing on a long line of oneay that the heart of the opinion, and to follow up on justice alitosestion, the court really emphasizes the collateral ctor, and one cou that the heart of the opinion the paragraph before , and responding to the governance arguments, thecourt says that they object to the ardsexistence and not to be standards. In general they challenge the boardsteral which view might be sought. And so you could say, what enterprise was about a nge to the boards existence or cture and therefo is collateral. I would say that the two things that i would say are first, elgin did come o years after free and arise came in and said dont distinguish among constitutional claims. Thld be a peculiar thing to say he Court Announced thr principle. The other thing i d say is that to the extent that y the praph as the heart of the opinion, he case was drawing on ry longstanding established body of documents. It was articulating a principle that the court had ulated time and again that regulated parties d not have to commit violations in order to get judicial ew. If you say that the crucial part of the on with the part that said that this was a systemic challenge to the of very composition of the agency that y introducing a thought really had as an exclusive te or predominant st, have no grounding in the courts dents, and its constitutional voyageith principles. We try particularly hard toa avoid constitutional lenges if it is po to do so, and so it would be peculiar to say at a stage of the proceedings were you could not raise any other sort of challenge that you can raise a broad ranging to the very composition and thank you. E agency. Justice barrett i have a question ab meaningful review. It overlaps a little bit with the teral point. On page 36 this brief, mr. Clement points out th not that they po hail invalid fine or lose a job on a itutional basis like the claims of basin in elgin, but the relief that it is seeking is not goinet it altogether for either ality reason related to thes or some apion of the statute. But justice soto pointed out earlier that even a structural challo the agency is a means of eng it is a challenge that you can make to get out from under us, but i take his point to be that, listen, the most that we get is a doover. And ss is not just about having to e the expanse in the inconvenience of proceedings befo can ultimately challenge them and relief. Its that the relief twe get in the end is not a ultimate om liability, but it is simply sayingif you were to come after us again, you have to do it in a pro constituted agency. Is that a argument that you find persuasive on the meaningful review poin i dont, becau anything, you would that it would if anything that you would say that they would be arguing getting this particular cease and desist order set would not provide adequate relief because it would not provide meaningful relief because they could always come at us some other direction. I thins still determining whether it is adequate relif that the only real reason they have said that this would be inadequate is that we would ha to go through the proceeding itself have to wait for a ced desist order in order to get jl review. And the court said in a variety of contaat that is not a sufficient basi either for avoiding the limits on judicial review of agen aion or for getting immediate review on the colleral order. Th Justice Jackson . Thank you counsel. Thank you. Rebuttal,. Clement . Think you, just a few points and rebuttal. Irst of all, my friend on the other ss very focused on theapa and review of agency on, but of course here we are not really challenging agencyon as such. E are challenging the constitutionality of statutes, that insulate agofficials frompresident ial removal and we a challenging the assignmentprocess, the cleararocess that actually proceedsany Agency Action by ftc. Y friend loves the standard oil case, but thestandard oil case is a finality case. It is not strictly speakinga jurisdictional case, it also ustrates howffering this case is from that, and that case whi standard oil beef wasabout was about the initiation a complaint. They say thatwe are so innocent from all this that you should not even initiateda complaint. Well of course that is t a right challenge because that Agency Action very specific to individual company and will entually be merged into final Agency Action. Bhat we have in these cross cutting constitutionalaims now my friend invoked this argument in brief, kind of standing jction trap. Until you have anency action, you have a understanding that as soon asyou do what you are stuck in the agency forever they let you out. That is g on both ends i feel. First of all, if have a reasonable belief that we are about to be bject to agency unconstitutional, the governwould have to come and esponse to a complaint and say thathave no reasonablesk, that is speculative. Couldve done that morning that we led a complaint when they were going to initiate action three weeks earlier, four weeks earlier, and standing to depend on the Agency Action. Epends on a meaningful possibility that we are going to be cted to some government on. On the back, and we think for e reasons that we have talked about, wee not in this jurisdictional trap changing the Agency Action. Apa factors and the thunderhe basin rs, i was quite surprised whegovernment was asked about rgument that it seemed to want to really talk about the apa and so i sort of took from the wh colloquy that the governments view is that the r basin factors are kind of a bad gloss or a inadequate gloss unhe apa. Me think that maybe the make straightforward approaching this is right. Cant fight that the best thing that you can say about the fender n factors is that they sort of get you from where you would get with the apa anyway. Its kind of no harm, no foul. But eve government thinks that that is not the right loss on th. Maybe we need to pick with the test. Thags us to the Thunder Basin factors. Hsked if the three factors are ney or sufficient. I dont think when the court was formulating those th factors, i think that they are more guidepost than factors. I dont ink that they were designed perfectly to be mutually exve and collectively exhaustive. I think that if you look at the way this court applied them, sweep one way or another. Eith three factors go together, one or all three factors go her way. I suppose if twere a case of a true kindie or a tossup, i would like to think that the tid go to the into the text of 13 31 and that the tie not go to being sucked into adminive action that you are challenging lastly, on the issue of meaningful relief. As e removal claims in particular, with all due respect to this court, if you look at what the splinter decision in the collins case, when it came to reliethis kind of removal action, when its retrospe that seems to allow perspective relief and say, lo if an agency is unconstitutional structure, we should not have to go in there pectively. And then you dont have to get into all of these difficult questions how to remedy the situa retrospectively. Second, just on governments response about the case, really think about answer there, there is a constitutional problem that i think has been glittering since this court decid the lucia case in the october term of 2017. The government response is, you might be able to review that question in october 23 if and only if the gent decides to file a petition. The perse of those subject to this unconstitutional action, t is not good enough. We should be abl to go into court under 13 31 and get a immediate answer as to whether orthe writing is on the wall a the structure is unconstitutional. Look, it is every citizenssays, burden to have to go through thesenistrative processes before we get judicial review. I dont think that that is right that the Administrative Agency is alleged to be unconstitutional or you are alleged to have to go in front of the wrong agency. That should not be the burden of citizenship,