DECISION & ORDER
“When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction_The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.” New Orleans Pub. Serv., Inc. v. New Orleans,491 U.S. 350 , 358,109 S.Ct. 2506 ,105 L.Ed.2d 298 (1989) (quoting Willcox v. Consol. Gas Co.,212 U.S. 19 , 40,29 S.Ct. 192 ,53 L.Ed. 382 (1909))
I. Introduction
This is one of a series of cases which seeks to enjoin on constitutional grounds the United States Securities and Exchange Commission from adjudicating within that agency alleged civil violations of the securities laws by persons- not associated with regulated entities. The principal contention of Plaintiff Barbara Duka (and others) is that the administrative law judges who adjudicate such cases pursuant to provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, Pub.L. No. 111-203 (“Dodd-Frank”), are insulated unlawfully from oversight by the President who, under Article II of the Constitution, is vested with the “executive power,” including the ability to hold executive officers accountable by removing them from office. The SEC responds that the federal district courts are without subject matter jurisdiction where, as here, the Commission has elected to proceed within the agency.
For the reasons set forth below, the Court finds, first, that it has subject matter jurisdiction to examine Duka’s plea that the SEC administrative proceedings against her be halted but, second, that Duka is not entitled to preliminarily enjoin the SEC proceedings because she is “unlikely to succeed on
II. Background
On January 16, 2015, Barbara Duka (“Plaintiff’ or “Duka”), formerly a co-manager of the commercial mortgage backed securities group of Standard & Poor’s Rating Services (“S & P”), filed a complaint in this Court against the United States Securities and Exchange Commission (“SEC” or “Government” or “Commission”) seeking declaratory and injunctive relief. (Compl., dated Jan. 16, 2015 (“Compl.”), ¶ 1.) The Complaint seeks to prevent Duka “from being compelled to submit to an [allegedly] unconstitutional [SEC administrative] proceeding” which, in fact, was initiated against her on January 21, 2015. (Compl. ¶¶ 2, 5.) Plaintiff contends that the SEC administrative law judges (“ALJs” or “SEC ALJs”) who are responsible for adjudicating SEC administrative proceedings (“Administrative Proceeding(s)”) “enjoy at least two layers of tenure protection,” which insulate them from Presidential oversight. (Id. ¶ 3.) According to Plaintiff, SEC Administrative Proceedings are, thus, unconstitutional on their face because they violate Article II of the United States Constitution.
Administrative Proceedings
The Administrative Procedure Act, 5 U.S.C. § 500 et seq. (“APA”), authorizes executive agencies of the government such as the SEC to conduct Administrative Proceedings before an ALJ. ALJs have the authority to “administer oaths and affirmations”; “issue subpoenas authorized by law”; “rule on offers of proof and receive relevant evidence”; “regulate the course of the hearing”; and “decide the case.” 5 U.S.C. §§ 556, 557. The ALJ serves as the finder of fact and of law (ie., there are no juries). (Compl. ¶ 21.) Executive agencies, including the SEC, may appoint “as many administrative law judges as are necessary.” Id. § 3105. SEC ALJs are assigned their cases by the Chief Administrative Law Judge of the SEC pursuant to authority delegated to the Chief ALJ by the Commission. 17 C.F.R. § 200.30-10.
Prior to the enactment of Dodd-Frank, the SEC was authorized to impose civil penalties in Administrative Proceedings only against “regulated personfs]” or companies. See Gupta,
The defendant in an SEC Administrative Proceeding (such as Duka) may appeal an ALJ’s decision to the Commission, which is comprised of five Commissioners (one of whom is Chairman) appointed by the President.
A person who is aggrieved by a final order of the Commission may seek judicial review in the United States Court of Appeals for the circuit in which he or she resides or has his or her principal place of business, or before the United States Court of Appeals for the District of Columbia Circuit. 15 U.S.C. § 78y(a)(l).
All ALJs, including SEC ALJs, are removable from employment by their respective agency heads (in this case, the Commission) but only for “good cause.” Good cause must be “established and determined” by the Merit Systems Protection Board (“MSPB”), an independent federal agency which handles federal employee appeals of adverse employment actions. 5 U.S.C. § 7521; 5 C.F.R. § 930.211(a). The SEC Commissioners, in turn, “cannot themselves be removed by the President except [for] inefficiency, neglect of duty, or malfeasance in office.” Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd.,
The SEC Proceeding against Plaintiff
The SEC alleges in its Administrative Proceeding against Duka that during the period 2009 through 2011, Duka was managing director at Standard & Poor’s Ratings Services “with responsibility for new issue ratings of Commercial Mortgage Backed Securities.” (Order Instituting Administrative and Cease-and-Desist Proceedings, dated Jan. 21, 2015, attached as Ex. 3 to Deck of Daniel Goldman, dated Jan. 26, 2015 (“Goldman Deck”), ¶ 1.) The SEC contends that “S & P’s CMBS Group, acting through and led by Duka, published eight CMBS Presale reports between February and July 2011 in which S & P failed to disclose its relaxed methodology for calculating DSCRs [Debt Service Coverage Ratios].” (Id. ¶ 6.) The result, according to the SEC, is that “[m]arket participants were ... misled into believing that the ratings at issue were more conservative than they actually were.” (Id.) According to the SEC, “Duka willfully violated Section 17(a) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, which prohibits fraudulent conduct in the offer and sale of securities and in connection with the purchase or sale of securities.” (Id. ¶ 49.) The SEC also contends that Duka “should be ordered to cease and desist from committing or causing or aiding and abetting violations of and any future violations of Section 17(a) of the Securities Act,” and should be ordered to pay a civil penalty and “pay disgorgement.” (Id. at 11.)
On January 22, 2015, the SEC designated ALJ Cameron Elliot to preside over Plaintiffs Administrative Proceeding.
Plaintiffs District Court Claim
Plaintiff contends here, as noted, that the Administrative Proceeding initiated against her is unconstitutional under Article II (The President “shall take care that the laws be faithfully executed....”). According to Plaintiff, Article II requires that “executive officers, who exercise significant executive power, be unprotected from removal by their superiors at will, when those superiors are themselves protected from removal by the President at will.”
Plaintiffs January 26, 2015 motion seeks to “temporarily restrain and preliminarily enjoin the SEC from continuing and prosecuting the administrative proceeding it initiated against her.” (Mem. of Law in Supp. of Pl.’s Mot., dated Jan. 26, 2015 (“PI. Mem.”), at 1.) It argues, among other things, that: (1) this Court has subject matter jurisdiction because “dismissing Ms. Duka’s Complaint would foreclose meaningful judicial review of her constitutional claim”; “Ms. Duka’s claim ... is wholly collateral to the Administrative Proceeding”; and Duka’s claim is “outside the SEC’s expertise”; (2) Plaintiff is likely to succeed on the merits of her claim
In its opposition, the SEC asserts that: (1) federal district courts lack jurisdiction over suits, like Duka’s, “that attempt to bypass an exclusive remedial [SEC] scheme established by Congress”; (2) “the [for cause] removal provisions applicable to [ALJs] do not raise separation of powers concerns” because the Supreme Court “has repeatedly held that the Constitution permits Congress to place reasonable restrictions on the removal of inferior officers”; (3) “an allegation that the President of the United States does not have sufficient control over some of his underlings describes, at best, a highly attenuated harm that does not warrant the drastic remedy of an injunction”; and (4) an injunction “would delay the SEC’s efforts to protect investors and ensure the integrity of the securities markets.” (Mem. of Law in Opp’n. to Pl.’s Mot. (“Gov’t. Opp’n.”) at 7, 20, 24-25.)
On February 9, 2015, Plaintiff filed a Reply to the Memorandum in Opposition. (See Reply Mem. of Law in Supp. of Pl.’s Mot., dated Feb. 9, 2015.) On February II, 2015, the Court heard (helpful) oral .argument. (See Hr’g Tr., dated Feb. 11, 2015.)
III. Legal Standard
“[I]t is established practice ... to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution.” Free Enterprise,
“Where, as here, a party seeks a preliminary injunction against government action taken in the public interest pursuant to a statutory scheme, a moving party must demonstrate that (1) he is likely to succeed on the merits of the underlying claim, (2) he will suffer irreparable harm absent injunctive relief, and (3) the public interest weighs in favor of granting the injunction.” Pope v. Cnty. of Albany,
Where Plaintiff fails to establish a likelihood of success on the merits, the Court “need not reach” the remaining elements. Greenlight Capital, L.P. v. Apple, Inc., No. 13 Civ. 900,
IV.Analysis
(1) The Court has Subject Matter Jurisdiction
A federal district court has jurisdiction over pre-enforcement challenges to agency action if three .criteria are met: (1) the absence of jurisdiction in the district court “could foreclose all meaningful judicial review [of the plaintiffs claim]”; (2) the plaintiffs claim is “wholly collateral” to “any Commission orders or rules from which review might be sought”; and (3) the plaintiffs claim is “outside the agency’s expertise.” Free Enterprise, 561 U.S. at
The Court concludes that all three of these criteria are met in this case. The Court notes (again) that the issue being reviewed here is whether the Court has subject matter jurisdiction over Plaintiffs constitutional claim for injunctive and declaratory relief. That issue is separate and apart from a federal court’s jurisdiction to review any orders which may be issued by the SEC in the Administrative Proceeding.
Meaningful Judicial Review
Plaintiff argues that the “[t]he availability of an appeal after an administrative proceeding to a federal circuit court of appeals does not address th[e] [alleged] harm because the ... damage [would] already substantially and harmfully [be] done.” (Compl. ¶ 58.) The Government counters that “should Plaintiff be found liable before the Commission, a court of appeals will adjudicate her constitutional claim.” (Gov’t Opp’n. at 8.)
The Court concludes that the absence of subject matter jurisdiction “could foreclose all meaningful judicial review” of Plaintiffs claim. Free Enterprise,
Plaintiff is not here challenging the outcome of her Administrative Proceeding or any order(s) issued by the SEC. Rather, Plaintiff seeks to enjoin the proceeding itself, and the (injunctive and declaratory) relief she seeks is to prevent the Administrative Proceeding from occurring in the first place. See Bond v. United States,
Wholly Collateral
Plaintiff argues that her claim is “wholly collateral” to the Administrative Proceeding because she “asserts a facial challenge to the very ‘existence’ of the Administrative Proceeding....” (PI. Mem. at 4-5.) The Government responds that Plaintiffs claim is not collateral because “Plaintiffs object is to halt that proceeding.” (Gov’t Opp’n. at 10.)
The Court concludes that Plaintiffs claim for injunctive and declaratory relief is “wholly collateral” to “any Commission orders or rules from which review might be sought” in the Court of Appeals. Free Enterprise,
Unlike the plaintiffs in Chau. Duka does not assert an “as-applied” challenge to agency action “in light of the facts of a specific case.” Chau,
The Supreme Court’s holding in Elgin v. Dep’t. of the Treasury, — U.S.-,
Outside the Agency’s Expertise
Plaintiff argues that her claim is “indistinguishable from the claim asserted and adjudicated in federal courts in Free Enterprise, where the Article II challenge was held outside the SEC’s expertise.” (PI. Mem. at 5.) The Government responds that “Plaintiffs claim raises questions of statutory and regulatory interpretation relating to the Commission’s Rules of Practice.” (Gov’t Opp’n. at 11.)
Without in any way diminishing ALJ Elliot’s exceptional legal background, the Court concludes that the constitutional claim posed in this injunctive/declaratory judgment case is outside the SEC’s expertise. This aspect of executive agency practice is governed by clear Supreme Court precedent. See Thunder Basin,
Thus, the Court concludes that it has subject matter jurisdiction to evaluate Plaintiffs application for declaratory and injunctive relief.
(2) Plaintiffs Motion for Preliminary Injunctive Relief is Denied
The issue remaining is whether Plaintiff is entitled to preliminary injunctive relief. That is, whether Plaintiff (1) is likely to succeed on the merits of her claim, (2) will suffer irreparable harm absent injunctive relief, and (3) the public interest weighs in favor of granting the injunction. Pope,
Plaintiff argues that “SEC ALJs, as inferior Officers, are protected from removal by at least two levels of ‘good-cause’ tenure protection” and, therefore, “the President cannot oversee SEC ALJ s in accordance with Article II.” (PI. Mem. at 15, 17.) The Government responds that “[t]he Supreme Court has repeatedly held that the Constitution permits Congress to place reasonable restrictions on the removal of inferior officers without unduly infringing upon the President’s exercise of the Executive power.” (Gov’t Opp’n. at 20.)
The Court finds that Duka is unlikely to succeed on the merits of her claim. Plaintiffs claim appears to be based upon her interpretation of the Supreme Court’s decision in Free Enterprise. (See discussion, supra, at n. 8.) According to Plaintiff, “[i]n Free Enterprise, the Supreme Court held that if inferior officers ... under Article II can only be removed from office for good cause, then the decision to remove the inferior officers cannot be vested in other officials (in that case, SEC Commissioners) who also enjoy good-cause tenure.” (PL Mem. at 1.) Plaintiff contends both that SEC ALJs are inferior officers within the meaning of Article II of the Constitution and that SEC ALJs enjoy at least two levels of (“good cause”) tenure protection.
Inferior Officers
“Whether administrative law judges are necessarily ‘Officers of the United States’ is disputed.” Free Enterprise, 561 U.S..at 507 n. 10,
The Supreme Court’s decision in Freytag v. Commissioner,
The Court concludes that it need not resolve the issue of whether ALJs are inferior officers because, as discussed below, the statutory restrictions on ALJs’ removal from office are both appropriate and constitutional.
Levels of Tenure Protections
The Court finds that Free Enterprise clearly did not establish, as Duka suggests, a categorical rule forbidding “two levels of ‘good-cause’ tenure protection.” See Free Enterprise,
And, as noted, the majority specifically excluded ALJs from the reach of its holding. Id. at 507 n. 10,
Supreme Court precedent supports a functional test to determine whether and when statutory limitations on the President’s power to remove executive officers violate Article II — and the conclusion that there is no such violation here. “The analysis contained in our removal cases is designed not to define rigid categories of those officials who may or may not be removed at will by the President, but to ensure that Congress does not interfere with the President’s exercise of the ‘executive power’ and his constitutionally appointed duty to ‘take care that the laws be faithfully executed’ under Article II.’ ” Morrison v. Olson,
In cases involving (only) one layer of tenure protection, the Supreme Court has focused upon “the nature of the function that Congress vested in the [executive officer],” Wiener v. United States,
In Humphrey’s Executor, the Court upheld the constitutionality of a statute forbidding the President from removing commissioners of the Federal Trade Commission (“FTC”) except for “good cause.” The Court’s analysis turned upon the fact that the FTC is an independent agency vested with “quasi judicial” and “quasi legislative” power. It “cannot in any proper sense be characterized as an arm or an eye of the executive.” Id. at 628,
Similarly, in Wiener, the Court upheld restrictions upon the President’s power to remove members of the War Claims Commission. The Commission was tasked with adjudicating claims for compensation by individuals who had suffered personal injury or property damage during World War II. The Court found dispositive the facts that the Commission was established as an “adjudicating body” and was meant to be “entirely free from the control or coercive influence, direct or indirect, of either the Executive or the Congress.” Wiener, 357
The upshot is that congressional restrictions upon the President’s ability to remove “quasi judicial” agency adjudicators are unlikely to interfere with the President’s ability to perform his executive duties. See Morrison,
The Supreme Court’s decision in Free Enterprise also supports the conclusion that restrictions upon the removal of agency adjudicators, as opposed to agency officials with “purely executive” functions, generally do not violate Article II. The majority emphasized the PCAOB’s “expansive powers to govern an entire industry” and its “substantial executive authority,” including the authority to “promulgate!] auditing and ethics standards, perform! ] routine inspections of all accounting firms, demand!] documents and testimony, and initiate!] formal investigations and disciplinary proceedings.” Free Enterprise,
This Court finds no basis for concluding, as Duka urges, that the statutory restrictions upon the removal of SEC ALJs are “so structured as to infringe the President’s constitutional authority.” SEC ALJs perform solely adjudicatory functions, and are not engaged in policymaking or enforcement. “There can be little doubt that the role of the modem federal hearing examiner or administrative law judge ... is ‘functionally comparable’ to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions.” Fed. Mar. Comm’n v. S.C. State Ports Auth.,
Indeed, invalidating the “good cause” restriction upon the removal of SEC ALJs — the so-called “second layer” of tenure protection — would undermine the ALJs’ clear adjudicatory role and their ability to “exercise[ ] ... independent judgment on the evidence before [them], free from pressures by the parties or other officials within the agency.” Butz,
Because Plaintiff has failed to demonstrate a likelihood of success on the merits of her claim, the Court need not decide whether there would be irreparable harm absent injunctive relief, and whether the public interest weighs in favor of granting an injunction. Greenlight Capital, L.P.,
V. Conclusion & Order
For the reasons stated herein, Plaintiffs motion for a preliminary injunction and temporary restraining order [# 9] is denied.
Notes
. At least two district courts in this Circuit have addressed the issue of subject matter jurisdiction in pre-enforcement challenges' to SEC administrative proceedings.
In Gupta v. S.E.C., Judge Jed S. Rakoff held that the district court had subject matter jurisdiction to consider a plaintiffs action to enjoin an SEC administrative proceeding on the ground that the SEC had "single[d] him out for uniquely unfavorable treatment” in violation of his constitutional right to equal protection.
In Chau v. S.E.C., Judge Lewis A. Kaplan concluded that the court lacked subject matter jurisdiction to consider a plaintiff’s action to enjoin an SEC administrative proceeding on due process and equal protection grounds.
Duka's claim presents a facial challenge to the constitutionality of SEC ALJ administrative proceedings. See also, Sarah S. Gold and Richard L. Spinogatti, Constitutional Challenges to SEC Administrative Proceedings, N.Y.L.J., Apr. 8, 2015, at 3. Duka does not assert as-applied equal protection or due process claims.
. During an early case conference, the Court advised the parties as follows: "I have [not] entered — and intentionally so — on the dockets any interim relief at this time.” (Hr'g Tr., dated Jan. 29, 2015, at 13:19-24 (emphasis added).)
. Any issues raised by the parties not specifically addressed herein were considered by the Court on the merits and rejected.
. Article II states that "[t]he executive power shall be vested in a President of the United States of America.” U.S. Const, art. II, § 1, cl. 1.
. The Commissioners are appointed "by the President by and with the advice and consent of the Senate” for five-year terms. 15 U.S.C. § 78d(a).
. ALJ Elliot has a distinguished biography: Mr. Elliot graduated from Yale University in 1987 with a Bachelor of Science degree in physics and applied physics, and he graduated from Harvard Law School in 1996. He served as a law clerk for U.S. District Judge Edward Reed (D.Nev.) from July 1996 to August 1998. Mr. Elliot spent the next eight years at the U.S. Department of Justice, during which time he served as an Assistant U.S. Attorney in the Southern District of Florida and in the Eastern District of New York. He subsequently practiced as an attorney at the law firm of Darby & Darby P.C. in New York, where he handled intellectual property litigation, until his June 2008 appointment as an ALJ for the U.S. Social Security Administration. Mr. Elliot was appointed to the SEC in April 2011. (“SEC Announces Arrival of New Administrative Law Judge Cameron Elliot,”
. There are two categories of “executive officers,” namely "principal officers” and "inferi- or officers.” Free Enterprise Fund v. Pub. Co. Accounting Oversight Bd.,
. Plaintiff relies heavily upon Free Enterprise, the case in which the Supreme Court invalidated the statutory tenure protections of members of the Public Company Accounting Oversight Board ("PCAOB” or "Board”). The PCAOB is a regulatory body created by the Sarbanes-Oxley Act of 2002, 15 U.S.C. § 7211, and placed under the supervision of the SEC. The petitioners’ claim in Free Enterprise was that "Board members were insulated from Presidential control by two layers of tenure protection: Board members could only be removed by the Commission for good cause, and the [SEC] Commissioners could in turn only be removed by the President for good cause.” Free Enterprise,
The majority in Free Enterprise confined its holding by stating that “[t]he only issue in this case is whether Congress may deprive the President of adequate control over the Board.” Id. at 508,
. The Government argues that reputational harm and litigation expense do not constitute irreparable injury. (Gov’t Opp’n. at 24.) Second Circuit precedent makes clear, however, that such alleged harms are sufficient for purposes of Article III standing. See Mental Disability Law Clinic, Touro Law Center v. Hogan,
. The American Heritage New Dictionary of Cultural Literacy, 3d. Ed. (2005), defines the
. The Government also fails to consider that ALJ Elliot may ultimately find in favor of Plaintiff or, alternatively, that the parties may settle prior to an appealable order being issued by the Commission. In either event, Plaintiff likely would not be "aggrieved by an order of the Commission” and would, therefore, be unable to obtain any judicial review of her Article II claim. See 15 U.S.C.' §§ 77i(a) ("Any person aggrieved by an order of the Commission may obtain a review of such order in the court of appeals of the United States....”).
. The Government argues unconvincingly that a party in Ms. Duka’s shoes “must patiently await the denouement of proceedings within the [administrative agency].’ ” (Gov’t Opp’n. at 10 (quoting Chau,
. Even assuming, arguendo, that Plaintiff had demonstrated a likelihood of success, the Court would likely find that she has failed to demonstrate that the public interest weights in favor of ganting a preliminary injunction.
. Butz,