     Case: 17-30044   Document: 00514892004     Page: 1   Date Filed: 03/28/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                       FILED
                                                                   March 28, 2019
                                 No. 17-30044
                                                                    Lyle W. Cayce
                                                                         Clerk
BANK OF LOUISIANA; G. HARRISON SCOTT; SHARRY SCOTT; JOHNNY
CROW,

             Plaintiffs - Appellants

v.

FEDERAL DEPOSIT INSURANCE CORPORATION,

             Defendant - Appellee




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before SMITH, DUNCAN, and ENGELHARDT, Circuit Judges.
STUART KYLE DUNCAN, Circuit Judge:
      The Federal Deposit Insurance Corporation (“FDIC”) brought two
enforcement proceedings against the Bank of Louisiana and three of its
directors (collectively, the “Bank”) for violating federal banking laws. At the
close of each proceeding, the FDIC Board (“Board”) issued a final order
penalizing the Bank. In turn, the Bank petitioned this court for review of both
orders pursuant to 12 U.S.C. § 1818(h)(2), which vests “exclusive” jurisdiction
to review final Board orders in the federal circuit courts. But the Bank also
sued the FDIC in federal district court, alleging various constitutional
violations arising out of the same enforcement proceedings. The sole issue on
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                                       No. 17-30044
appeal is whether the district court correctly dismissed the Bank’s lawsuit for
lack of subject matter jurisdiction. It did. We therefore AFFIRM.
                                              I.
                                             A.
       Among its other responsibilities, the FDIC is authorized to investigate
and institute proceedings against federally-insured banks and savings
associations to prevent “unsafe or unsound practice[s]” and to enforce federal
banking laws and regulations. See 12 U.S.C. §§ 1811, 1818(b); see also Fed.
Deposit Ins. Corp. v. Bank of Coushatta, 930 F.2d 1122, 1124–26 (5th Cir. 1991)
(discussing FDIC’s “regulatory tools for dealing with troubled banks”).
Exercising that authority, the FDIC may issue a notice of charges (12 U.S.C.
§ 1818(b)), hold hearings (id. § 1818(h)) 1, issue cease-and-desist orders (id.
§ 1818(b), (c)), and levy monetary penalties (id. § 1818(i)).
       This enforcement scheme includes “a comprehensive system for judicial
review.” Rhoades v. Casey, 196 F.3d 592, 597 (5th Cir. 1999) (citing Bd. of
Governors of Fed. Reserve Sys. of U.S. v. MCorp Fin., Inc., 502 U.S. 32, 37
(1991)). One may obtain judicial review of a final agency order “exclusively” by
“filing in the [relevant] court of appeals of the United States … a written
petition praying that the order of the agency be modified, terminated, or set
aside.” 12 U.S.C. § 1818(h)(1), (h)(2) 2; see also Rhoades, 196 F.3d at 597
(explaining “a party may obtain review of [an] order issued by the banking
agency by filing [a petition] in a Court of Appeals of the United States”) (citing



       1  Such hearings “shall be conducted in accordance with the provisions of chapter 5 of
Title 5,” id., meaning the rules concerning administrative hearings. See, e.g., 5 U.S.C. § 556
(providing procedural and evidentiary rules for administrative hearings).
       2 “Review of such proceedings shall be had as provided in chapter 7 of Title 5,” id.,
meaning the rules concerning review of agency proceedings. See, e.g., 5 U.S.C. § 706
(providing authority to review agency action, including “interpret[ing] constitutional and
statutory provisions”).
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12 U.S.C. § 1818(h)(2)); Groos Nat. Bank v. Comptroller of the Currency, 573
F.2d 889, 894 (5th Cir. 1978) (explaining “[j]udicial review of final agency cease
and desist orders is placed in the United States Circuit Courts of Appeal by 12
U.S.C. § 1818(h)”). Only in specific circumstances may federal district courts
exercise jurisdiction over banking agency orders. For instance, upon issuance
of a temporary cease-and-desist order, a bank “may apply to [a] United States
district court … for an injunction setting aside, limiting, or suspending the
enforcement, operation, or effectiveness of such order” pending completion of
administrative proceedings. 12 U.S.C. § 1818(c)(2). And the agency itself may
apply to a federal district court to enforce its orders. See id. § 1818(i)(1).
However, unless otherwise provided, “no court shall have jurisdiction to affect
by injunction or otherwise the issuance or enforcement of any notice or order
[under section 1818], or to review, modify, suspend, terminate, or set aside any
such notice or order.” Id.
      We have described these procedures in section 1818 as “a detailed
framework for regulatory enforcement and for orderly review of the various
stages of enforcement.” Bd. of Governors of Fed. Reserve Sys. v. DLG Fin. Corp.,
29 F.3d 993, 999 (5th Cir. 1994) (quoting Groos, 573 F.2d at 895). And we have
emphasized that “[section] 1818(i) in particular”—the jurisdictional bar
referenced above—“evinces a clear intention that this regulatory process is not
to be disturbed by untimely judicial intervention[.]” Id.; see also Rhoades, 196
F.3d at 597 (noting “the Supreme Court [has] held that the plain, preclusive
language of § 1818(i) ‘provides us with clear and convincing evidence that
Congress intended to deny the District Court jurisdiction to review and enjoin’
administrative proceedings”) (quoting MCorp, 502 U.S. at 44).




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                                        B.
      The Bank is a New Orleans-based community bank founded in 1958 by
G. Harrison Scott (“Scott”) and his late partner, James Comiskey. Scott has
been chairman of the Bank’s Board of Directors since its founding and has
served as the Bank’s president since 2005. In October and November 2013, the
FDIC brought two enforcement actions against the Bank, alleging violations of
various banking laws and regulations. While those proceedings were pending
at different stages, in August 2016 the Bank and three of its directors—Scott,
Sharry Scott, and Johnny Grow—sued the FDIC in federal district court,
alleging constitutional violations arising out of the enforcement actions. We
recount the intertwined history of these actions in some detail.
      The first enforcement proceeding began on October 22, 2013. The FDIC
alleged that the three directors had caused the Bank to violate federal
regulations over a two-year period, specifically by approving illegal loans in
violation of Regulation O, 12 C.F.R. § 215.4, which limits the credit a bank can
extend to its executives, directors, and principal shareholders. The directors
were also charged with permitting Bank insiders to overdraw their accounts
while avoiding overdraft fees. See generally Scott v. FDIC, 684 F. App’x 391
(5th Cir. 2017) (discussing charges against the Bank). Following briefing and
an evidentiary hearing, the presiding administrative law judge (“ALJ”) issued
a decision on July 2, 2014, recommending a $10,000 civil penalty for each
director in addition to costs and fees. On November 18, 2014, the Board
adopted the ALJ’s recommendation in a final order. On December 22, 2014, the
directors petitioned our court for review. After staying the case pending
resolution of the second enforcement proceeding, we issued an opinion on April
4, 2017, denying the directors’ petition. See id. at 397.


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      The second enforcement proceeding began on November 1, 2013. The
Bank was charged with operating in an unsafe and unsound manner and with
violating provisions of the Bank Secrecy Act, 3 the Electronic Funds Transfer
Act, 4 the Real Estate Settlement Procedures Act, 5 the Truth in Lending Act, 6
the Home Mortgage Disclosure Act, 7 and the National Flood Insurance
Program. 8 The same ALJ from the first proceeding conducted a six-day trial
and, on May 17, 2016, recommended that the FDIC impose a $500,000 civil
penalty and order the Bank to cease and desist its violations. The Board
adopted the ALJ’s recommendation and issued a final order on November 15,
2016. See Bank of La., FDIC-12-489b, FDIC-12-479k, 2016 WL 9050999 (Nov.
15, 2016). As relevant here, the Board concluded that the ALJ’s “lengthy,
detailed, and well-reasoned opinion” had “fully addressed” and properly
rejected the Bank’s arguments that the “FDIC’s examiners were motivated by
age discrimination against Scott,” that the Bank was “denied due process” by
certain ALJ rulings concerning document admissibility and witness
sequestration, and that the ALJ was unconstitutionally appointed. Id. at *2,
*11–13. On December 19, 2016, the Bank petitioned our court for review. We
stayed proceedings pending the Supreme Court’s decision in Lucia v. SEC,
which subsequently held that Securities and Exchange Commission ALJs are
“Officers of the United States” under the federal Constitution’s Appointments
Clause. See 138 S. Ct. 2044, 2049 (2018); U.S. CONST. art. II, § 2, cl. 2. On


      3   31 U.S.C. § 5311 et seq.
      4   15 U.S.C. § 1693 et seq.
      5   12 U.S.C. § 2601 et seq.
      6   15 U.S.C. § 1601 et seq.
      7   12 U.S.C. § 2801 et seq.
      8   42 U.S.C. § 4001 et seq.
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September 5, 2018, we granted the FDIC’s motion to remand the case to the
agency in light of Lucia.
       While the second proceeding was pending before the Board (and while
the first proceeding was pending on appeal before us), the Bank filed the
instant lawsuit in federal district court on August 4, 2016, claiming the FDIC
committed constitutional violations during the enforcement proceedings.
Specifically, the Bank alleged the FDIC denied it equal protection by targeting
Scott, the Bank’s president, due to his age. 9 The Bank further alleged the ALJ
violated due process by preventing it from proffering certain evidence and by
preventing Scott from talking with his counsel at certain points during the
proceedings. These were the same constitutional claims considered and
rejected by the ALJ and the Board during the second enforcement proceeding.
See Bank of La., 2016 WL 9050999 at *11–13.
       The Bank originally sought a permanent injunction to prevent the Board
from issuing a final order in the second proceeding; a declaratory judgment
that the FDIC violated its constitutional and statutory rights during both
enforcement proceedings; damages; sanctions; and attorney’s fees. After the
Board issued its second order on November 15, 2016, the Bank abandoned its
requests for injunctive relief and damages, leaving only its request for
declaratory judgment.




       9 For example, the Bank alleges that on January 29, 2013, an FDIC employee stated
in an email to another employee, “[T]his place will never change until the old man dies.” But
see Bank of La., 2016 WL 9050999 at *11–13 (noting that “the Bank has not identified any
evidence of purported age discrimination that, if credited, likely would change the outcome
of this proceeding” and concluding that “[w]hile this reference might be viewed in context as
insensitive or unkind, it cannot fairly be read to demonstrate that FDIC staff harbored age-
based animus toward [the Bank]”).
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      The FDIC moved to dismiss the Bank’s lawsuit for lack of subject matter
jurisdiction, asserting that the statutory review scheme in 12 U.S.C. § 1818
precludes district court jurisdiction. The district court granted the FDIC’s
motion and dismissed the Bank’s lawsuit without prejudice, emphasizing that
the Bank could assert its claims in this court on direct review of the agency’s
final order. The Bank appeals.
                                        II.
      We review a dismissal for lack of subject matter jurisdiction de novo,
accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff. Griener v. United States, 900 F.3d 700, 703 (5th
Cir. 2018). “As a court of limited jurisdiction, a federal court must affirmatively
ascertain subject-matter jurisdiction before adjudicating a suit. A district court
should dismiss where it appears certain that the plaintiff cannot prove a
plausible set of facts that establish subject-matter jurisdiction.” Venable v. La.
Workers’ Comp. Corp., 740 F.3d 937, 941 (5th Cir. 2014) (cleaned up). A court
may find that plausible set of facts by considering “(1) the complaint alone; (2)
the complaint supplemented by undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court’s resolution of
disputed facts.” Spotts v. United States, 613 F.3d 559, 565–66 (5th Cir. 2010)
(citation omitted). The party asserting jurisdiction bears the burden of proof.
Griener, 900 F.3d at 703.
                                       III.
      “Within constitutional bounds, Congress decides what cases the federal
courts have jurisdiction to consider,” including “when, and under what
conditions, federal courts can hear them.” Bowles v. Russell, 551 U.S. 205, 212–
13 (2007); see also, e.g., La. Real Estate Appraisers Bd. v. Fed. Trade Comm’n,
917 F.3d 389, 394 (5th Cir. 2019) (federal courts “cannot act without authority

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                                  No. 17-30044

from Congress or the Constitution”) (citing Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 378 (1994)). As a general matter, federal district courts
have subject matter jurisdiction over all civil cases arising under the
Constitution and federal law. U.S. CONST. art. III, § 2; 28 U.S.C. §§ 1331, 2201.
But sometimes Congress leapfrogs district courts by channeling claims
through administrative review and directly to federal appellate courts. See
Elgin v. Dep’t of Treasury, 567 U.S. 1, 9 (2012) (explaining Congress may
“channel[ ] judicial review of a constitutional claim” through “a statutory
scheme of administrative review followed by judicial review in a federal
appellate court[,] [thereby] preclud[ing] district court jurisdiction”) (citing
Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 206 (1994)). In that event,
federal district courts lack subject matter jurisdiction to hear those claims. See,
e.g., Arbaugh v. Y&H Corp., 546 U.S. 500, 515 n.11 (2006) (explaining
“Congress has exercised its prerogative to restrict the subject-matter
jurisdiction of federal district courts based on a wide variety of factors”);
Dresser v. Meba Med. & Benefits Plan, 628 F.3d 705, 708 (5th Cir. 2010)
(district court properly dismissed lawsuit as “an attempt to circumvent the
channeled path for judicial review” when review scheme required appeal from
agency “to a federal circuit court”). The question in this case is whether
Congress established such a scheme in 12 U.S.C. § 1818, which is the
regulatory process deployed by the FDIC in its enforcement proceedings
against the Bank. If it did, then the district court lacked subject matter
jurisdiction over the Bank’s separate lawsuit challenging the constitutionality
of those proceedings.
      Congress may preclude district court jurisdiction either explicitly or
implicitly. To discern an explicit preclusion, we examine whether “the text …
expressly limit[s] the jurisdiction that other statutes confer on district courts,”

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such as 28 U.S.C. § 1331. Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd., 561 U.S. 477, 489 (2010); see also, e.g., Elgin, 567 U.S. at 25 (Alito, J.,
dissenting) (explaining that, “[w]hen dealing with an express preclusion clause
… we determine the scope of preclusion simply by interpreting the words
Congress has chosen”) (citing Shalala v. Ill. Council on Long Term Care, Inc.,
529 U.S. 1, 5 (2000)).
      To discern an implicit preclusion, we engage in a more complex analysis.
We first ask whether it is “fairly discernible” from the “text, structure, and
purpose” of the statutory scheme that Congress intended to preclude district
court jurisdiction. Elgin, 567 U.S. at 10 (quoting Thunder Basin, 510 U.S. at
207). We then ask whether the “claims at issue ‘are of the type Congress
intended to be reviewed within th[e] statutory structure.’” Free Enter. Fund,
561 U.S. at 489 (quoting Thunder Basin, 510 U.S. at 212). To help answer that
second question, the Supreme Court has identified three “factors,” sometimes
referred to as the “Thunder Basin factors.” See Thunder Basin, 510 U.S. at
212–13. Specifically, we inquire (1) whether precluding district court
jurisdiction “could foreclose all meaningful judicial review”; (2) whether the
Bank’s “suit is wholly collateral to a statute’s review provisions”; and
(3) whether its claims are “outside the agency’s expertise.” Elgin, 567 U.S. at
15 (quoting Free Enter. Fund, 561 U.S. at 489; Thunder Basin, 510 U.S. at 212–
13). Several of our sister circuits have used this framework to analyze an
administrative review scheme in SEC enforcement proceedings. See, e.g.,
Jarkesy v. SEC, 803 F.3d 9, 12 (D.C. Cir. 2015) (applying this “framework” to
determine “whether Congress intended exclusivity when it established the
statutory scheme” for reviewing SEC enforcement orders in 15 U.S.C.
§ 78y(a)(1) and similar statutes); see also Bennett v. SEC, 844 F.3d 174, 181
(4th Cir. 2016); Hill v. SEC, 825 F.3d 1236, 1241 (11th Cir. 2016); Tilton v.

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SEC, 824 F.3d 276, 281 (2d Cir. 2016); Bebo v. SEC, 799 F.3d 765, 768–69 (7th
Cir. 2015). We find that framework helpful in confronting the analogous
question presented here.
                                        A.
      The parties and the district court addressed the question presented
under the implicit preclusion analysis, and we therefore do the same.
Consequently, we first ask whether it is “fairly discernible” from the text,
structure, and purpose of 12 U.S.C. § 1818 that Congress intended to preclude
district court jurisdiction over the Bank’s claims against the FDIC. Agreeing
with the FDIC, the district court concluded that its jurisdiction was precluded
by the “clear text” of § 1818(i)(1). That subsection provides that, unless
otherwise allowed, “no court shall have jurisdiction to affect by injunction or
otherwise the issuance or enforcement or any notice or order under [§ 1818], or
to review, modify, suspect, terminate, or set aside any such notice or order.” Id.
      On appeal, the Bank makes no argument with respect to this first step
of the analysis. In fact, the Bank “concedes that it is fairly discernible from the
face of … § 1818 that Congress intended to limit the jurisdiction of district
courts over certain claims seeking review of FDIC Board actions.” The Bank
instead reserves its arguments for the three Thunder Basin factors, which, it
claims, show Congress did not intend to preclude its claims. See infra III.B.
      The Bank wisely concedes that the section 1818 scheme displays
Congress’ intent to preclude district court jurisdiction over claims against the
FDIC arising out of enforcement proceedings. Our precedent virtually compels
that concession. Even setting aside the specific jurisdictional bar in section
1818(i)(2), we have described the section 1818 scheme as a “comprehensive
system for judicial review” of agency orders, Rhoades, 196 F.3d at 597, and a
“detailed framework … for orderly review of the various stages of enforcement,”

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DLG Financial, 29 F.3d at 999 (quoting Groos, 573 F.2d at 895); see supra I.A.
Following an administrative hearing, the Board reviews the ALJ’s
recommendation de novo and issues a final order, which is routed for
“exclusive” review directly to a federal appellate court. See 12 U.S.C.
§ 1818(h)(1)–(2). District court jurisdiction is prescribed only in specific
circumstances not present here. See id. § 1818(a)(8)(D), (c)(2), (d), (f), (i)(1),
(i)(2)(I)(i), (n). This calibrated structure is, for present purposes, materially the
same as review structures the Supreme Court and sister circuits have found
expressive of Congress’ intent to preclude district court jurisdiction. See, e.g.,
Bennett, 844 F.3d at 181–82; Hill, 825 F.3d at 1242–45; Tilton, 824 F.3d at
281–82; Jarkesy, 803 F.3d at 16–17.
      Furthermore, if the general section 1818 scheme were not enough to
show Congress’ preclusive intent, the jurisdictional bar in section 1818(i)(1)
ices the cake. Both the Supreme Court and our court have “held that the plain,
preclusive language of § 1818(i) ‘provides … clear and convincing evidence that
Congress intended to deny the District Court jurisdiction to review and enjoin’
administrative proceedings.” Rhoades, 196 F.3d at 597 (quoting MCorp, 502
U.S. at 44). We have added that this section “evinces a clear intention that [the
section 1818] regulatory process is not to be disturbed by untimely judicial
intervention[.]” DLG Fin. Corp., 29 F.3d at 999. And we have held that the
section’s specific prohibition against affecting agency orders “by injunction or
otherwise” encompasses declaratory relief, which is what the Bank seeks. See
Groos, 573 F.2d at 895. Thus, as the FDIC correctly argues, the plain text of
section 1818(i)(1) makes this case easier than the sister-circuit cases, which
interpreted an SEC enforcement scheme lacking a similarly explicit
jurisdictional bar. Cf., e.g., Bennett, 844 F.3d at 177; Jarkesy, 803 F.3d at 13.


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       Indeed, so robust is the section 1818(i)(1) bar that, on appeal, the FDIC
invites us to stop there and decline to analyze the three Thunder Basin factors.
It is a tempting offer. After all, the Thunder Basin factors are a judge-made
test for discerning whether we should presume Congress has left district court
jurisdiction unimpaired. See, e.g., Elgin, 567 U.S. at 15 (the Thunder Basin
factors invoke “our ‘presum[ption] that Congress does not intend to limit
[district court] jurisdiction’”) (quoting Free Enter. Fund, 561 U.S. at 489).
Because the plain terms of section 1818(i) bar jurisdiction here, the FDIC
sensibly urges that “no court-created presumption can change that result.” 10
       Despite the attractiveness of this argument, we think it prudent to cycle
through the Thunder Basin factors, as did the district court. Those factors
reinforce the conclusion that the review scheme precludes district court
jurisdiction over the Bank’s claims.
                                               B.
       We proceed to the three Thunder Basin factors, which help determine
whether the “claims at issue ‘are of the type Congress intended to be reviewed
within th[e] statutory structure.’” Free Enter. Fund, 561 U.S. at 489 (quoting
Thunder Basin, 510 U.S. at 212). Under those factors, “we presume that
Congress does not intend to limit [district court] jurisdiction [1] if ‘a finding of


       10  Although unclear, the FDIC may effectively be arguing that section 1818(i)
“explicitly” limits the jurisdiction conferred on federal district courts by statutes like 28
U.S.C. § 1331. See Free Enter. Fund, 561 U.S. at 489 (explaining Congress may “expressly
limit the jurisdiction that other statutes confer on district courts”). There is some authority
for that proposition. See Abercrombie v. Office of Comptroller of Currency, 833 F.2d 672, 677
(7th Cir. 1987) (holding that “§ 1818(i)(1) … expressly and unequivocally deprived the district
courts of jurisdiction over [civil money penalty] assessments by the Comptroller under
§ 1818(i)(2)(i)”). We note, however, that section 1818(i) does not reference other jurisdictional
statutes explicitly. Cf., e.g., Shalala, 529 U.S. at 5 (addressing clause providing that “no
action” on any Medicare claim “shall be brought under section 1331 … of title 28”). In any
event, we need not resolve that issue because of our holding that the statutory scheme
withdraws district jurisdiction implicitly.
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preclusion could foreclose all meaningful judicial review’; [2] if the suit is
‘wholly collateral to a statute’s review provisions’; and [3] if the claims are
‘outside the agency’s expertise.’” Free Enter. Fund, 561 U.S. at 489 (quoting
Thunder Basin, 510 U.S. at 212–13) (brackets added). In the Bank’s view, each
factor shows Congress did not intend to limit district court jurisdiction over its
claims against the FDIC. We consider each factor in turn.
                                        1.
      The Bank argues that the section 1818 scheme fails to provide
“meaningful judicial review” because the ALJ allowed only “limited discovery”
that “did not afford [it] adequate opportunity to uncover the remainder of the
evidence bearing on” its age discrimination and due process claims. The district
court correctly rejected this argument.
      The Supreme Court has held that Congress provides meaningful judicial
review by authorizing review of challenges to a final agency order by a federal
circuit court. See Elgin, 567 U.S. at 17 (concluding the Civil Service Reform
Act afforded meaningful review by “provid[ing] review in the Federal Circuit,
an Article III court fully competent to adjudicate petitioners’ [constitutional]
claims”); Thunder Basin, 510 U.S. at 215 (concluding “petitioner’s statutory
and constitutional claims” regarding the Federal Mine Safety and Health
Amendments Act “can be meaningfully addressed in the Court of Appeals”); see
also Bennett, 844 F.3d at 186 (concluding petitioner “can obtain meaningful
judicial review of her constitutional claims under [the Securities Exchange Act]
by proceeding in the administrative forum and raising her claims in a federal
court of appeals in due course”); Tilton, 824 F.3d at 286–87 (concluding that
“appellants will have access to meaningful judicial review of their
Appointments Clause claim through administrative channels” which include
review in a circuit court); Jarkesy, 803 F.3d at 20 (observing that “the SEC

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                                  No. 17-30044

scheme presents an entirely meaningful avenue of relief” given that “a court of
appeals is available to hear … challenges” to the Commission’s final order)
(internal quotation marks deleted). Indeed, there can be meaningful review in
the circuit court even if the agency itself lacks authority to decide the
constitutional question presented. See, e.g., Elgin, 567 U.S. at 17 (concluding
court of appeals can provide meaningful review of constitutional challenge
“‘[e]ven if’ the administrative body could not decide the constitutionality of a
federal law”) (quoting Thunder Basin, 510 U.S. at 215); see also Jarkesy, 803
F.3d at 19 (concluding Commission’s lack of authority to address constitutional
questions “is of no dispositive significance” because petitioner’s constitutional
claims “can eventually reach an Article III court fully competent to adjudicate
them”) (cleaned up).
      The statutory scheme at issue in this case authorizes review of final
Board orders in a federal circuit court. See 12 U.S.C. § 1818(h)(2); Rhoades,
196 F.3d at 597. Based on that alone, the scheme would provide meaningful
judicial review of the Bank’s claims that the enforcement proceedings were
tainted by constitutional violations. See, e.g., Bebo, 799 F.3d at 767 (holding
meaningful judicial review not foreclosed because, “[i]f aggrieved by the SEC’s
final decision, [petitioner] will be able to raise her constitutional claims in this
circuit or in the D.C. Circuit”). But there is more: The Bank in fact raised its
constitutional claims during the enforcement proceedings, and both the ALJ
and the Board addressed them. As the Board observed, the ALJ wrote a
“lengthy, detailed, and well-reasoned opinion” that “fully addressed” the
Bank’s age discrimination, due process, and separation-of-powers claims. 2016
WL 9050999 at *2, 11. The Board in turn reviewed, and approved, the ALJ’s
recommendations. For instance, the Board rejected the Bank’s age
discrimination claim as based on “speculation” that “cannot surmount the

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ample evidence in the record showing the legitimate regulatory concerns that
prompted each of [the FDIC’s] actions.” Id. at *11; see also id. at *12–13
(reviewing and agreeing with ALJ’s rejection of the Bank’s due process claims);
id. at *13 (reviewing and agreeing with ALJ’s rejection of the Bank’s
Appointments Clause challenge to ALJ authority). The Bank then sought our
review of the Board’s order—and actually obtained relief when we granted the
FDIC’s motion to remand the case in light of the Supreme Court’s Lucia
decision. See Bank of La. v. FDIC, No. 16-60837 (5th Cir. Sept. 5, 2018) (order).
If this is not “meaningful judicial review” of the Bank’s constitutional claims,
we do not know what would qualify.
      The Bank’s situation is therefore unlike the one in Free Enterprise Fund,
where a plaintiff would have had to “bet the farm” to obtain judicial review of
his claim. In that case, the Supreme Court concluded that the Sarbanes-Oxley
Act did not provide meaningful judicial review of a challenge to the
constitutionality of the pertinent agency board. 561 U.S. at 489–91. Under the
applicable review scheme, the petitioner would have had to voluntarily “incur
a sanction” at the board level to raise its constitutional claim in the circuit
court, risking “severe punishment should its challenge fail.” Id. at 490. The
Supreme Court “d[id] not consider this a ‘meaningful’ avenue” for a
constitutional challenge, id. at 491 (quoting Thunder Basin, 510 U.S. at 212),
because plaintiffs typically need not “‘bet the farm … by taking the violative
action’” before challenging a law’s validity. Free Enter. Fund, 561 U.S. at 490
(quoting MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007); see also
McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 496–97 (1991) (finding no
meaningful review for aliens’ denial of special worker status when circuit
review could be obtained “only if [aliens] voluntarily surrender[ed] themselves
for deportation”). We have nothing like that here. The Bank was “already

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                                        No. 17-30044

embroiled in an enforcement proceeding” and so “need not take any additional
risks” to assert its constitutional claims. Bennett, 844 F.3d at 186. Unlike in
Free Enterprise Fund, then, the Bank did not have to “bet the farm” to
challenge agency action. The farm was already on the table.
       The only argument the Bank seriously presses on appeal is that the ALJ
“barred [it] from developing the factual record necessary” to support its
constitutional claims. This is hyperbole. Elsewhere in its briefs, the Bank
concedes that the ALJ allowed it “limited discovery” and complains only that
“[t]he ALJ denied some of the Bank’s requests for discovery” (emphasis added).
This is hardly grounds to accuse the agency of denying “meaningful review” of
the Bank’s claims: Discovery requests may just as likely be rejected by district
courts as by agencies. See Jarkesy, 803 F.3d at 22 (observing that the
petitioner’s “[discovery] requests might well have met the same result had he
attempted them in the district court”).
       In any event, numerous courts, including the Supreme Court, have
consistently rejected similar arguments based on agency fact-finding
capacities. In Elgin, for example, the Supreme Court held that the pertinent
review scheme “fully accommodate[d] [the claimant’s] potential need to
establish facts relevant to his constitutional challenge,” by empowering the
agency to take evidence and find facts. 567 U.S. at 19. Several sister circuits
have reached the same conclusion. 11




       11 See, e.g., Hill, 825 F.3d at 1249–50 (holding the tools available in the administrative
process, such as the ability to call witnesses, “do not leave [a plaintiff] without a meaningful
avenue to develop the record”); Jarkesy, 803 F.3d at 21 (explaining that the administrative
process does not “categorically preclude [petitioner] from accessing the evidence he believes
he needs”); Bebo, 799 F.3d at 773 (concluding an agency’s “fact-finding capacities, even if
more limited than a federal district court’s, are sufficient for meaningful judicial review”).
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                                      No. 17-30044

      We have no reason to doubt that the review scheme here similarly
provides adequate tools for developing the necessary record for the Bank’s
claims. As the Bank correctly concedes on appeal, the FDIC “is equipped to do
fact-finding.” The pertinent statute expressly incorporates the procedural and
evidentiary accoutrements typical of administrative proceedings—including
the power to issue subpoenas, take evidence, and order depositions. 12 U.S.C.
§ 1818(h); see also 5 U.S.C. § 556(c)(2)–(4) (authorizing agency hearing officer
to “issue subp[o]enas authorized by law,” to “rule on offers of proof and receive
relevant evidence,” and to “take depositions or have depositions taken when
the ends of justice would be served”). Finally, even assuming the Bank is
correct and the ALJ wrongly curtailed discovery our court could remand to the
agency for further factfinding, which underscores the point that the scheme
provides meaningful judicial review of the Bank’s claims. See Jarkesy, 803 F.3d
at 22 (observing that, “should the [administrative record … prove inadequate,”
the court of appeals “always has the option of remanding to the agency for
further factual development”) (internal quotation marks and citations
omitted). 12
      In sum, a finding that the review scheme precludes district court
jurisdiction would not “‘foreclose all meaningful judicial review’” of the Bank’s
constitutional claims. Free Enter. Fund, 461 U.S. at 489 (quoting Thunder
Basin, 510 U.S. at 489). This factor therefore points toward finding that the
district court lacked subject matter jurisdiction.



       12 The Bank also suggests there is an inherent “conflict” in the process (essentially
because the FDIC is investigating its own practices) that “hamstrung” its ability to develop
its claims. The Bank points to nothing in the record even hinting that any “conflict” in the
administrative process lay behind the ALJ’s discovery rulings. Nor does the Bank cite any
authority for the proposition that a supposed “conflict” forecloses meaningful judicial
review—especially when the scheme provides a right of review by a federal circuit court.
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                                 No. 17-30044

                                       2.
      Turning to the second Thunder Basin factor, the Bank argues that its
claims are “wholly collateral” to the administrative scheme because they did
not “challenge … the merits of the FDIC’s final order in either proceeding,” but
“[i]nstead … challenged the unconstitutional animus behind the [FDIC]
investigation and the attendant denial of due-process rights.” The district court
correctly rejected this argument.
      The   Bank’s    constitutional   claims   arise   directly   from   alleged
irregularities in the agency enforcement proceedings. And the Bank raised
those same claims as defenses in the second enforcement proceeding. See Bank
of La., 2016 WL 9050999 at *11–13. The Bank’s claims are thus “inextricably
intertwined with the conduct of the very enforcement proceeding the statute
grants the [FDIC] the power to institute and resolve as an initial matter.”
Jarkesy, 803 F.3d at 23 (cleaned up). In other words, those claims “do not arise
‘outside’ the [FDIC] administrative enforcement scheme—they arise from
actions the [FDIC] took in the course of that scheme.” Id. We therefore cannot
consider the Bank’s claims “‘wholly collateral’ to the [FDIC enforcement]
scheme.” Elgin, 567 U.S. at 21; see also Bennett, 844 F.3d at 187 (claim not
collateral to agency proceedings when the “claim arises out of the enforcement
proceeding and provides an affirmative defense”); Tilton, 824 F.3d at 288
(explaining claim was not “wholly collateral” to the administrative scheme
when the “claim arose directly from [the agency] enforcement action and serves
as an affirmative defense within the proceeding”).
      The Bank counters that, in applying this factor, we should instead focus
on the substantive relationship between its claims and the agency proceedings,
and thus find that the Bank’s claims are “substantively collateral to the
banking-law issues the FDIC was examining.” It is true that a few circuits have

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                                 No. 17-30044

suggested this as a possible approach to the wholly collateral factor. For
example, while not adopting it, the Second Circuit has observed that one
“competing approach[ ]” is to ask whether the claim is “substantively
intertwined with the merits dispute that the proceeding was commenced to
resolve.” Tilton, 824 F.3d at 287; see also Hill, 825 F.3d at 1251 (noting that
one “way[ ] to understand this factor” is to “compare the merits of the …
constitutional claims to the substance of the [administrative] charges”); Bebo,
799 F.3d at 773 (a possible approach is to “focus on the relationship between
the merits of the constitutional claim and the factual allegations against the
plaintiff in the administrative proceeding”).
      We need not decide whether focusing on substance over procedure is the
proper way to apply the wholly collateral factor. Even assuming we should look
only to substance, we would still find the Bank’s claims are not wholly
collateral to the agency proceedings. As we have seen, the Bank’s age
discrimination and due process claims allege agency misdeeds during the
enforcement proceedings themselves. Thus, we would still find those claims
“substantively intertwined with the merits dispute that the proceeding was
commenced to resolve.” Tilton, 824 F.3d at 287; see also, e.g., Jarkesy, 803 F.3d
at 14 (concluding plaintiffs’ “various allegations of violations of their
constitutional rights … are inextricably intertwined with the conduct of the
very enforcement proceeding the statute grants the SEC the power to institute
and resolve as an initial matter”). Indeed, in rejecting those claims, the Board
examined the merits of the underlying agency action, underscoring the point
that the Bank’s claims are intertwined both substantively and procedurally
with the agency proceedings. See Bank of La., 2016 WL 9050999 at *11–15.
      In sum, the Bank has not shown that its “suit is wholly collateral to [the]
statute’s review provisions.” Elgin, 567 U.S. at 15 (quoting Free Enter. Fund,
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                                  No. 17-30044

561 U.S. 477, 489). Therefore, this factor also points toward finding that the
district court lacked subject matter jurisdiction.
                                         3.
      Turning to the third and final Thunder Basin factor, the Bank argues
that its constitutional claims are “beyond the special expertise of the FDIC.”
Once again, the district court correctly rejected this argument.
      Elgin is instructive here. In that case, the Supreme Court explained that
courts should not “overlook the many threshold questions that may accompany
a constitutional claim and to which the [agency] can apply its expertise.” Elgin,
567 U.S. at 22. They should instead consider whether the agency’s “expertise
can otherwise be brought to bear on [claims] that challenge the
constitutionality of a statute.” Id. at 23; see also Tilton, 824 F.3d at 289 (noting
Elgin “adopted a broader conception of agency expertise in the jurisdictional
context”); Jarkesy, 803 F.3d at 28–29 (explaining “Elgin … clarified ... that an
agency’s relative level of insight into the merits of a constitutional question is
not determinative”). For example, in Elgin the agency deployed its employment
law expertise to resolve “threshold questions” before considering the
constitutionality of the Selective Service Act. 567 U.S. at 23; see also Tilton,
824 F.3d at 290 (discussing Elgin’s recognition of “those potential applications
of agency expertise to other dimensions of the administrative proceeding”).
      Following Elgin’s lead, our sister circuits have identified various ways
an agency might deploy its expertise on constitutional questions. The agency
might “resolv[e] accompanying statutory claims that it routinely considers, and
which might fully dispose of the case in the appellants’ favor.” Tilton, 824 F.3d
at 290 (internal quotation marks omitted). Or an “agency could moot the need
to resolve [a] challenge to [a statute’s] constitutionality (or any other
constitutional question) by finding that he did not commit the … violations of

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                                      No. 17-30044

which he stands accused.” Jarkesy, 803 F.3d at 29. Additionally, an agency’s
interpretation of the law “in the course of the proceeding … might answer or
shed light on” a constitutional challenge. Id. As the D.C. Circuit observed in
Jarkesy, “there are precious few cases involving interpretation of statutes
authorizing agency action in which our review is not aided by the agency’s
statutory construction.” Id. at 29 (quoting Mitchell v. Christopher, 996 F.2d
375, 379 (D.C. Cir. 1993) (internal quotation marks omitted)).
       Following Elgin and our sister circuits, we conclude that the Bank’s
constitutional claims did not fall outside the agency’s expertise. To begin with,
the FDIC could have mooted the Bank’s constitutional claims by finding the
Bank innocent of the statutory violations it was accused of committing. Elgin,
567 U.S. at 23; Jarkesy, 803 F.3d at 29. At a minimum, the agency’s banking
expertise could have shed light on the Bank’s constitutional claims, which
turned largely on why the agency brought charges and on how the hearing was
conducted. Elgin, 567 U.S. at 22–23; Tilton, 824 F.3d at 29. As it happens, that
is just what occurred. The Board rejected the Bank’s theory that the FDIC’s
investigation was motivated by age-based animus by reviewing “the ample
evidence in the record showing the legitimate regulatory concerns that
prompted each of [the FDIC’s] actions.” Bank of La., 2016 WL 9050999 at *11
(emphasis added). Similarly, the Board rejected the Bank’s due process claims
by reviewing the ALJ’s rulings in light of the substantive issues addressed at
the hearing. 13 It is thus evident that the agency actually brought its expertise
to bear in resolving the bulk of the Bank’s constitutional claims.


       13  See id. at *12 (examining whether certain exhibits excluded by the ALJ were
“crucial to [the Bank’s] case or would have changed the outcome,” and noting that “[n]one of
these exhibits undermine the ALJ’s conclusion that a preponderance of the evidence shows
multiple violations of law and supports the examiners’ less-than-satisfactory ratings in
multiple areas”); id. (concluding the ALJ’s “sequestration rule” did not violate due process
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                                     No. 17-30044

      To be sure, the Bank’s separation-of-powers challenge to the ALJ does
not directly implicate the agency’s expertise in the way the Bank’s other
constitutional claims do. But this is not dispositive under Elgin. As the D.C.
Circuit correctly explained, in Elgin the Supreme Court “clarified … that an
agency’s relative level of insight into the merits of a constitutional question is
not determinative” for purposes of the agency expertise factor. Jarkesy, 803
F.3d at 28; see also, e.g., Hill, 825 F.3d at 1250–51 (because the agency’s
decision on statutory claims could moot constitutional claims, “[w]e are
satisfied that the [agency’s] expertise could be brought to bear in this way, even
if its expertise could offer no added benefit to the resolution of the
constitutional claims themselves”); Tilton, 824 F.3d at 289 (emphasizing “that
an agency may bring its expertise to bear indirectly, by resolving
accompanying, potentially dispositive issues in the same proceeding”).
      In sum, the agency expertise factor does not show that “Congress
intended to exempt [the Bank’s constitutional] claims from exclusive review
before [the FDIC] and the [courts of appeal].” Elgin, 567 U.S. at 23. Therefore,
this factor also points toward finding that the district court lacked subject
matter jurisdiction over the Bank’s claims.
                                           IV.
      In sum, the district court correctly dismissed the Bank’s lawsuit without
prejudice for lack of subject matter jurisdiction. We therefore AFFIRM the
district court’s judgment. 14



“[b]ecause the ALJ made clear that the sequestration rule applied, only to a discussion of
Scott’s and other witnesses’ testimony while Scott’s testimony was in progress” and did not
“prevent Scott from discussing strategic matters with the Bank’s counsel”).
      14  The Bank’s motion to supplement the record excerpts, which was carried with this
appeal, is DENIED.
                                            22
