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`Case 2:20-cv-00014-DWL Document 41 Filed 04/08/20 Page 1 of 29
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF ARIZONA
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`Axon Enterprise Incorporated,
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`Plaintiff,
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`v.
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`Federal Trade Commission, et al.,
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`Defendants.
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`
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`No. CV-20-00014-PHX-DWL
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`ORDER
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`INTRODUCTION
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`Pending before the Court is Plaintiff Axon Enterprise, Inc.’s (“Axon”) motion for
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`preliminary injunction. (Doc. 15.)
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`Axon sells various technological tools, including body-worn cameras, to police
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`departments. In May 2018, Axon acquired one of its competitors. This acquisition
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`prompted the Federal Trade Commission (“FTC”) to conduct an antitrust investigation. In
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`January 2020, just as the FTC was about to initiate a formal administrative proceeding to
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`challenge the acquisition, Axon filed this lawsuit, which seeks to enjoin the administrative
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`proceeding based on three constitutional claims: first, that the FTC’s structure violates
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`Article II of the Constitution because its commissioners are not subject to at-will removal
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`by the President and its administrative law judges (“ALJs”), who are appointed by its
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`commissioners, are also insulated from at-will removal; second, that the FTC’s combined
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`role of “prosecutor, judge, and jury” during administrative proceedings violates the Due
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`Process Clause of the Fifth Amendment; and third, that the FTC and the Antitrust Division
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`Case 2:20-cv-00014-DWL Document 41 Filed 04/08/20 Page 2 of 29
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`of the U.S. Department of Justice, which are both responsible for reviewing the antitrust
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`implications of acquisitions but employ different procedures and substantive standards
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`when conducting such review, utilize an arbitrary and irrational “clearance” process when
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`deciding which agency will review a particular acquisition, in violation of the Equal
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`Protection Clause of the Fifth Amendment. (Doc. 15 at 6-15.)1
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`The constitutional claims Axon seeks to raise in this case are significant and topical.
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`Indeed, the Supreme Court recently held oral argument in a case that raises similar issues.
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`Seila Law LLC v. Consumer Fin. Prot. Bureau, No. 19-7. This Court, however, is not the
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`appropriate forum to address Axon’s claims. It is “fairly discernable” from the FTC Act
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`that Congress intended to preclude district courts from reviewing the type of constitutional
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`claims Axon seeks to raise here—instead, Axon must raise those claims during the
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`administrative process and then renew them, if necessary, when seeking review in the Court
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`of Appeals. Thus, this Court lacks subject matter jurisdiction over this action, Axon’s
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`request for a preliminary injunction must be denied, and this action must be dismissed.
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`Factual Background
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`BACKGROUND
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`Axon, which was formerly known as TASER International, Inc., is a Delaware
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`I.
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`
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`corporation that sells various technological tools, including body-worn cameras and cloud-
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`computing software, to police departments. (Doc. 1 ¶¶ 13, 19-21; Doc. 15-2 ¶ 2.) In May
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`2018, Axon acquired one of its competitors, Vievu. (Doc. 1 ¶ 24.) The next month, the
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`FTC notified Axon that it was investigating the acquisition. (Id. ¶ 25.) Axon cooperated
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`with the investigation over the next 18 months. (Id. ¶ 26.) Axon contends that it “spent in
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`excess of $1.6 million responding to the FTC’s investigational demands, including attorney
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`and expert fees, ESI production and related hosting and third-party vendor fees and
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`expenses.” (Doc. 15-2 at 3 ¶ 5.)
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`1
`In its reply, Axon clarifies that it “is not challenging the mere fact of concurrent
`jurisdiction, but rather the arbitrary way in which the agencies determine which of two
`vastly different (and often outcome-determinative) procedures will be applied to a
`particular company.” (Doc. 21 at 2 n.1.)
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`Axon contends that, at the conclusion of the investigation, the FTC gave it a choice.
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`First, it could agree to a “blank check” settlement that would rescind its acquisition of
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`Vievu and transfer some of its intellectual property to the newly restored Vievu. (Doc. 1
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`¶ 27.) According to Axon, the FTC’s “vision” was to turn Vievu into a “clone” of Axon—
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`“something Vievu never was nor could be without impermissible government regulation.”
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`(Id.) Second, if Axon declined those terms, the FTC would pursue an administrative
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`complaint against Axon. (Id.)
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`II.
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`Procedural History
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`On January 3, 2020, Axon filed this lawsuit. (Doc. 1). In its complaint, Axon
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`outlines the factual history discussed above and alleges a violation of its Fifth Amendment
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`rights to due process and equal protection (id. ¶¶ 57-60), alleges that the FTC’s structure
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`violates Article II of the Constitution (id. ¶¶ 61-62), and seeks a declaration that its
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`acquisition of Vievu didn’t violate any antitrust laws (id. ¶¶ 63-69).
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`Also on January 3, 2020 (but later that day), the FTC filed an administrative
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`complaint challenging Axon’s acquisition of Vievu. (Doc. 15 at 2 n.1.) An evidentiary
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`hearing in the administrative proceeding was originally scheduled for May 19, 2020. (Doc.
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`22 at 2.) That hearing has now been continued until late June 2020.
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`On January 9, 2020, Axon filed a motion for a preliminary injunction, seeking to
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`enjoin further FTC proceedings against it. (Doc. 15.)
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`On January 23, 2020, the FTC filed an opposition to Axon’s motion. (Doc. 19.)
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`The FTC relegated the merits of Axon’s constitutional claims to a footnote and instead
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`focused on whether the Court possesses subject matter jurisdiction. (Doc. 19 at 1, 14 n.12).
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`On January 30, 2020, Axon filed a reply. (Doc. 21.) That same day, Axon filed a
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`motion for expedited consideration. (Doc. 22.) Over the FTC’s opposition (Doc. 23), the
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`Court granted the motion and scheduled oral argument for April 1, 2020. (Doc. 24.)
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`On March 10, 2020 the Court issued a tentative order. (Doc. 29.)
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`On March 27, 2020, the New Civil Liberties Alliance (“NCLA”) filed a motion for
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`leave to submit an amicus brief in support of Axon. (Doc. 32.) That motion was granted.
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`(Doc. 33.)
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`On April 1, 2020, the Court heard oral argument. (Doc. 39.)2
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`On April 2, 2020, Axon supplemented the record by filing certain documents
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`generated during the administrative proceeding. (Doc. 40.)
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`ANALYSIS
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`
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`“Subject-matter limitations on federal jurisdiction serve institutional interests. They
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`keep the federal courts within the bounds the Constitution and Congress have prescribed.”
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`Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). “[C]ourts have an
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`‘independent obligation’ to police their own subject matter jurisdiction.” Animal Legal
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`Def. Fund v. U.S. Dep’t of Agric., 935 F.3d 858, 866 (9th Cir. 2019) (citation omitted). See
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`also Fed. R. Civ. Proc. 12(h)(3) (“If the court determines at any time that it lacks subject-
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`matter jurisdiction, the court must dismiss the action.”).
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`In general, district courts “have original jurisdiction of all civil actions arising under
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`the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. This includes
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`the authority to “declare the rights and other legal relations of any interested party seeking
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`such a declaration.” Id. § 2201. “This grant of jurisdiction, however, is not absolute.”
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`Kerr v. Jewell, 836 F.3d 1048, 1057 (9th Cir. 2016). Among other things, Congress can
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`“preclude[] district court jurisdiction” over claims pertaining to the conduct of an
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`administrative agency by creating a review framework that evinces a “fairly discernable”
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`intent to require such claims “to proceed exclusively through the statutory review scheme.”
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`Id. at 1057-58 (citation omitted). See also Bennett v. SEC, 844 F.3d 174, 178 (4th Cir.
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`2016) (“Congress can . . . impliedly preclude jurisdiction by creating a statutory scheme of
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`administrative adjudication and delayed judicial review in a particular court.”).
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`The issue here is whether Congress, by enacting the FTC Act, intended to require
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`constitutional challenges to the FTC’s structure and processes to be brought via the FTC
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`Act’s adjudicatory framework. If so, this Court lacks subject matter jurisdiction to
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`2
`Due to the COVID-19 pandemic, the Court allowed counsel for the FTC and NCLA
`to attend the hearing telephonically. (Docs. 31, 34.) Additionally, the Court allowed media
`organizations and members of the public to listen to the hearing telephonically. (Doc. 37.)
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`Case 2:20-cv-00014-DWL Document 41 Filed 04/08/20 Page 5 of 29
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`entertain Axon’s claims.
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`I.
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`Background Law
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`On three occasions between 1994 and 2012, the Supreme Court addressed whether
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`Congress’s enactment of a scheme of administrative adjudication should be interpreted as
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`an implicit decision by Congress to preclude district court jurisdiction. Although none of
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`those decisions involved the FTC Act, they control the analysis here. Cf. Bennett, 844 F.3d
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`at 178-81 (identifying these cases as “the trilogy”).
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`The first decision, Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), addressed
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`the preclusive effect of the Federal Mine Safety and Health Amendments Act of 1977
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`(“Mine Act”). Thunder Basin, a coal company, objected to a Mine Act regulation that
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`required it to post the names of certain union representatives. Id. at 203-04. Rather than
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`seek review of the regulation through the Mine Act’s judicial-review scheme, which
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`contemplates that “[c]hallenges to enforcement [will be] reviewed by the Federal Mine
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`Safety and Health Review Commission . . . and by the appropriate United States court of
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`appeals,” Thunder Basin filed a lawsuit in federal district court in which it argued that the
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`Mine Act’s review scheme violated its due process rights under the Fifth Amendment. Id.
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`at 204-06. The district court issued an injunction in Thunder Basin’s favor but the Supreme
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`Court reversed, concluding that the district court lacked subject matter jurisdiction over the
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`action. Id. at 205-07.
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`The Court held that when a statutory scheme, such as the Mine Act, “allocate[s]
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`initial review to an administrative body” and authorizes only “delayed judicial review,”
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`courts must analyze three factors—(1) “the statute’s language, structure, and purpose,” (2)
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`“its legislative history,” and (3) “whether the claims can be afforded meaningful review”—
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`when assessing whether Congress’s intent to “preclude initial judicial review” can be
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`“fairly,” if impliedly, “discerned” from the statutory scheme. Id. at 207. The Court then
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`analyzed these factors and concluded that all three supported a finding of preclusion.
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`First, the Court noted that the Mine Act creates a “detailed structure” for regulated
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`parties to seek review of enforcement activity under the Act—a mine operator is entitled
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`to challenge an adverse agency order before an ALJ, then seek review of the ALJ’s order
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`before the Federal Mine Safety and Health Review Commission, and then, if necessary,
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`seek review of any adverse decision by the Commission in a federal Court of Appeals. Id.
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`at 207-08. This structure, the Court concluded, “demonstrates that Congress intended to
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`preclude challenges such as the present one.” Id. at 208. The Court also noted that the
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`Mine Act contains provisions that enable the Secretary of Labor (who is responsible for
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`enforcing the Mine Act) to file an action in district court when seeking certain types of
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`relief. Id. at 209. Because “[m]ine operators enjoy no corresponding right,” the Court
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`concluded these provisions served as further proof of Congress’s intent to preclude. Id.
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`Second, the Court stated that “[t]he legislative history of the Mine Act confirms this
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`interpretation.” Id. at 209-11.
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`Third, the Court addressed whether a finding of preclusion would result, “as a
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`practical matter,” in the elimination of Thunder Basin’s ability “to obtain meaningful
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`judicial review” of its claims. Id. at 213 (quotation omitted). The Court concluded that no
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`such risk was present because Thunder Basin’s “statutory and constitutional claims . . . can
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`be meaningfully addressed in the Court of Appeals.” Id. at 215. In reaching this
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`conclusion, the Court observed that “[t]he Commission has addressed constitutional
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`questions in previous enforcement proceedings” but clarified that, “[e]ven if this were not
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`the case,” the availability of eventual review by an appellate court was sufficient. Id.
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`The second component of the trilogy, Free Enterprise Fund v. Public Co.
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`Accounting Oversight Bd, 561 U.S. 477 (2010), addressed the preclusive effect of the
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`Sarbanes-Oxley Act of 2002 (“the Sarbanes–Oxley Act”) and its interaction with the
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`Securities Exchange Act. Among other things, the Sarbanes–Oxley Act created an entity
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`called the Public Company Accounting Oversight Board (“PCAOB”), which was tasked
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`with providing “tighter regulation of the accounting industry.” Id. at 484. The PCAOB
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`was composed of five members who were appointed by the Securities and Exchange
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`Commission (“the Commission”). Id. The PCAOB’s broad regulatory authority included
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`enforcing not only the Commission’s rules, but also “its own rules,” and it possessed the
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`authority to “issue severe sanctions in its disciplinary proceedings, up to and including the
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`permanent revocation of a firm’s registration, a permanent ban on a person’s associating
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`with any registered firm, and money penalties of $15 million.” Id. at 485.
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`The plaintiff in Free Enterprise Fund was a Nevada accounting firm that been
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`investigated by the PCAOB and then criticized in a report issued by the PCAOB. Id. at
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`487. In a lawsuit filed in federal district court, the accounting firm argued that the
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`PCAOB’s structure was unconstitutional because its board members, as well as the
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`Commission members who appointed them, were shielded from Presidential control. Id.
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`The district court concluded it had subject matter jurisdiction over the lawsuit but rejected
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`the accounting firm’s constitutional claim on the merits. Id. at 488. The Supreme Court
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`reversed, agreeing with the district court’s jurisdictional analysis but concluding that, on
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`the merits, the PCAOB’s structure was unconstitutional.
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`When addressing the jurisdictional issue, the Court cited Thunder Basin as
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`supplying the relevant standards but concluded that, under those standards, jurisdiction was
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`not precluded. Id. at 489-91. Central to the Court’s analysis was the fact that the relevant
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`adjudicatory framework didn’t provide for judicial review over all of the PCAOB’s
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`activities. Specifically, the Commission was only empowered “to review any [PCAOB]
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`rule or sanction.” Id. at 489. Commission action, in turn, could receive judicial review
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`under 15 U.S.C. § 78y. Id. This structure was underinclusive, the Court stated, because it
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`“provides only for judicial review of Commission action, and not every Board action is
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`encapsulated in a final Commission order or rule.” Id. Put another way, the Court did “not
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`see how [the accounting firm] could meaningfully pursue [its] constitutional claims”
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`because the conduct it wished to challenge (e.g., the PCAOB’s release of the critical report)
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`“is not subject to judicial review.” Id. at 489-90. Thus, the Court concluded that Congress
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`did not intend to “strip the District Court of jurisdiction over these claims.” Id. at 491.
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`The final component of the trilogy, Elgin v. Dep’t of Treasury, 567 U.S. 1 (2012),
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`addressed the preclusive effect of the Civil Service Reform Act of 1978 (“CSRA”). The
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`CSRA is a “comprehensive system for reviewing personnel action taken against federal
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`Case 2:20-cv-00014-DWL Document 41 Filed 04/08/20 Page 8 of 29
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`employees.” Id. at 5 (quotation omitted). Under the CSRA, an employer seeking to
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`terminate (or pursue certain other adverse employment actions against) a covered employee
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`must provide notice, representation, an opportunity to respond, and a reasoned decision.
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`Id. at 5-6. An employee who disagrees with the agency’s decision may seek review by the
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`Merit Systems Protection Board (“MSPB”). Id. at 6. And an employee who disagrees with
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`the MSPB’s decision may seek judicial review in the Federal Circuit. Id.
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`In Elgin, a male employee was terminated because he hadn’t registered with the
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`Selective Service. Id. at 6-7. The employee appealed to the MPSB, arguing that the statute
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`requiring men (but not women) to register with the Selective Service is unconstitutional,
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`but the employee didn’t seek further review in the Federal Circuit after the MSPB rejected
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`his claim—instead, he (and others) filed a lawsuit in federal district court raising the same
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`constitutional challenge and requesting various forms of equitable relief, including
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`reinstatement. Id. The district court concluded it had jurisdiction to resolve the
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`constitutional claim but the Supreme Court reversed, holding that “the CSRA precludes
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`district court jurisdiction over petitioners’ claims even though they are constitutional
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`claims for equitable relief.” Id. at 8.
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`The Court began by reaffirming that, under Thunder Basin, “the appropriate
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`inquiry” when evaluating whether Congress intended to preclude district court jurisdiction
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`“is whether it is ‘fairly discernible’ from the [statute] that Congress intended [litigants] to
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`proceed exclusively through the statutory review scheme, even in cases in which the
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`[litigants] raise constitutional challenges to federal statutes.” Id. at 8-10. Next, the Court
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`“examined the CSRA’s text, structure, and purpose.” Id. at 10-11. After discussing the
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`various forms of review available under the statute, the Court concluded that “[g]iven the
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`painstaking detail with which the CSRA sets out the method for covered employees to
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`obtain review of adverse employment actions, it is fairly discernible that Congress intended
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`to deny such employees an additional avenue of review in district court.” Id. at 11-12. The
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`Court also noted that the CSRA expressly allows employees to assert one particular type
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`of claim in federal district court. Id. at 13 (citing 5 U.S.C. § 7702(b)(2)). The existence of
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`this provision, the Court stated, “demonstrates that Congress knew how to provide
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`alternative forums for judicial review based on the nature of an employee’s claim. That
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`Congress declined to include an exemption . . . for challenges to a statute’s constitutionality
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`indicates that Congress intended no such exception.” Id.
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`The Court also addressed whether a preclusion finding would effectively “foreclose
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`all meaningful judicial review” of the plaintiffs’ constitutional claim. Id. at 15-21 (citing
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`Free Enterprise Fund, 561 U.S. at 489). The Court concluded that such a risk was not
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`present, even though “the MSPB has repeatedly refused to pass upon the constitutionality
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`of legislation,” because the Federal Circuit, “an Article III court fully competent to
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`adjudicate [constitutional] claims,” could address those constitutional claims during the
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`final stage of the statutory review process. Id. at 16-18. The Court also rejected the notion
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`that the Federal Circuit would be hamstrung by an inadequately developed record when
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`conducting this review, explaining that “[e]ven without factfinding capabilities, the Federal
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`Circuit may take judicial notice of facts relevant to the constitutional question” and noting
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`that “we see nothing extraordinary in a statutory scheme that vests reviewable factfinding
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`authority in a non-Article III entity that has jurisdiction over an action but cannot finally
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`decide the legal question to which the facts pertain.” Id. at 19-21.
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`II. Whether It Is “Fairly Discernable” From The FTC Act That Congress Intended To
`Preclude District Court Jurisdiction Over Axon’s Constitutional Challenges
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`With this backdrop in mind, the Court will turn to the FTC Act. Nothing in the FTC
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`Act expressly divests district courts of jurisdiction to entertain constitutional claims of the
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`sort raised by Axon in this action, but Thunder Basin, Free Enterprise Fund, and Elgin all
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`recognize that Congress may implicitly preclude such jurisdiction through the enactment
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`of an administrative review scheme. The question here is whether such intent is “fairly
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`discernable” from the FTC Act. Thunder Basin, 510 U.S. at 207 (citation omitted).
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`A.
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`Text, Structure, And Purpose Of The FTC Act
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`Under Thunder Basin and its progeny, the first factor to consider when assessing
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`“[w]hether a statute is intended to preclude initial judicial review” is “the statute’s
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`language, structure, and purpose.” Thunder Basin, 510 U.S. at 207. This factor strongly
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`supports a finding of preclusion in this case.
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`The text and structure of the FTC Act closely resemble those of the Mine Act, which
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`was the statutory scheme at issue in Thunder Basin. The FTC Act sets out a detailed
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`scheme for preventing the use of unfair methods of competition. 15 U.S.C. § 45(a)-(b).
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`Additionally, the FTC Act’s enforcement provisions create timelines and mechanisms for
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`adjudicating alleged violations that are similar to those outlined in the Mine Act. Compare
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`15 U.S.C. § 45(b) with 30 U.S.C. § 815. Finally, and most important, the FTC Act’s
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`judicial review process is similar to the Mine Act’s, up to and including conferring
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`“exclusive jurisdiction” upon the relevant Court of Appeals to affirm, modify, or set aside
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`final agency orders. Compare 15 U.S.C. § 45(c)-(d) with 30 U.S.C. § 816(a). In Thunder
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`Basin, the Supreme Court held that this type of “detailed structure” suggested “that
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`Congress intended to preclude challenges such as the present one.” 510 U.S. at 208.
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`Similarly, in Elgin, the Supreme Court held when a statutory scheme sets out in
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`“painstaking detail” the process for aggrieved parties to obtain review of adverse decisions,
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`“it is fairly discernible that Congress intended to deny such employees an additional avenue
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`of review in district court.” 567 U.S. at 11-12. The FTC Act has a “detailed structure” that
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`includes “painstaking detail” concerning how to seek review, so the same inference arises
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`here. Cf. Hill v. SEC, 825 F.3d 1236, 1242 (11th Cir. 2016) (concluding that a review
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`scheme “materially indistinguishable” from that in Thunder Basin demonstrated
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`congressional intent to preclude district court jurisdiction).3
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`The FTC Act also contains a provision authorizing the FTC (but not regulated
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`parties) to file a lawsuit in federal district court. See 15 U.S.C. § 53(a) (authorizing the
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`FTC to “bring suit in a district court of the United States” when certain conditions are
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`satisfied). In Thunder Basin, the Supreme Court stated that an inference of preclusive
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`3
`In its reply, Axon points out several ways in which the text, structure, and purpose
`of the FTC Act arguably differ from the text, structure, and purpose of the CSRA. (Doc.
`21 at 4-5.) However, Axon does not attempt to make such a showing with respect to the
`Mine Act.
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`effect arose because the Mine Act allowed the Secretary of Labor to file certain claims in
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`district court but “[m]ine operators enjoy no corresponding right.” 510 U.S. at 209. See
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`also Elgin, 567 U.S. at 13 (provision allowing employees to file claims in district court
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`showed that “Congress knew how to provide alternative forums for judicial review based
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`on the nature of an employee’s claim. That Congress declined to include an
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`exemption . . . for challenges to a statute’s constitutionality indicates that Congress
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`intended no such exception.”). So, too, here.
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`Finally, the purpose of the FTC Act suggests that Congress intended to preclude
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`district court jurisdiction. Congress intended the FTC to act as a successor to the Interstate
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`Commerce Commission and enforce “its broad mandate to police unfair business conduct.”
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`FTC v. AT&T Mobility LLC, 883 F.3d 848, 854 (9th Cir. 2018). To that end, “Congress
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`deliberately gave the FTC broad enforcement powers.” Id. This is similar to the Mine
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`Act’s purpose of “strengthen[ing] and streamlin[ing] health and safety enforcement
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`requirements,” Thunder Basin, 510 U.S. 221, as well as the CSRA’s purpose of introducing
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`an “integrated scheme of administrative and judicial review” to “replace an outdated
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`patchwork of statutes and rules,” Elgin, 567 U.S. at 13-14 (citation omitted). In other
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`words, where Congress acts to introduce a statutory scheme that brings order from chaos,
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`it indicates that Congress intended to preclude district court jurisdiction. The FTC Act was
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`such an attempt.4
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`…
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`…
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`4
`This conclusion is bolstered by the slate of recent cases concluding that the SEC’s
`authorizing legislation precludes district court jurisdiction over constitutional challenges
`to the SEC’s structure. See, e.g., Bennett, 844 F.3d at 181-82; Hill, 825 F.3d at 1242-1245;
`Tilton v. SEC, 824 F.3d 276, 282-81 (2d Cir. 2016); Jarkesy v. SEC, 803 F.3d 9, 16-17
`(D.C. Cir. 2015); Bebo v. SEC, 799 F.3d 765 (7th Cir. 2015). Although those decisions are
`not binding here, their logic is persuasive. The review provisions of the FTC Act are
`“materially indistinguishable,” Hill, 825 F.3d at 1242, and “nearly identical,” Jarkesy, 803
`F.3d at 16, to those contained in 15 U.S.C. § 78y, which itself resembles the review
`provisions in the Mine Act. Thus, the Court is not persuaded by the NCLA’s colorful
`argument that Bennett, Hill, Tilton, Jarkesy, and Bebo were all wrongly decided and this
`Court should not “follow the herd of courts off the cliff in disregarding the jurisdictional
`significance of Free Enterprise.” (Doc. 32-2 at 21.)
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`B.
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`Legislative History Of The FTC Act
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`Thunder Basin suggests the second relevant preclusion factor is the underlying
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`statute’s legislative history. 510 U.S. at 207. However, Justice Scalia, joined by Justice
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`Thomas, issued a concurring opinion in Thunder Basin objecting to the consideration of
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`legislative history as part of the preclusion analysis, stating that such consideration only
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`“serve[d] to maintain the illusion that legislative history is an important factor in this
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`Court’s deciding of cases, as opposed to an omnipresent makeweight for decisions arrived
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`at on other grounds.” Id. at 219 (Scalia, J., concurring).
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`The Supreme Court’s subsequent decisions in this area, Free Enterprise Fund and
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`Elgin, did not address (much less focus on) legislative history, and the Supreme Court has
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`issued subsequent opinions in other contexts that reject the use of legislative history as a
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`legitimate interpretative tool. See, e.g., Epic Sys. Corp. v. Lewis, 138 S.Ct. 1612, 1631
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`(2018) (“[L]egislative history is not the law. It is the business of Congress to sum up its
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`own debates in its legislation, and once it enacts a statute [w]e do not inquire what the
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`legislature meant; we ask only what the statute means.”) (citations and internal quotation
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`marks omitted). Thus, it is unclear whether this portion of Thunder Basin retains validity.
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`Indeed, the FTC does not mention legislative history in its response brief (Doc. 19) and
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`Axon barely mentions it its reply (Doc. 21 at 4 [criticizing the FTC for failing to “point to
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`legislative history for the FTC Act that is similar to the CSRA’s”]).
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`In any event, to the extent legislative history remains a relevant consideration, and
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`to the extent it is possible to draw any meaningful conclusions from the FTC Act’s
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`legislative history (which the Court doubts), it tends to support the inference that Congress
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`sought to preclude district court jurisdiction over the type of claims presented here. Judicial
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`review of final, and only final, FTC actions was a component of the FTC Act from its
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`earliest iterations. See Marc Winerman, The Origins of the FTC: Concentration,
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`Cooperation, Control, and Competition, 71 Antitrust L. J. 1, 4 (2003). The debate focused
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`on the breadth of judicial review and settled on the standard contained in § 45 to this day:
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`deference to the FTC’s findings of fact, but otherwise silent. Id. at 5, 76-77, 80 (discussing
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`the FTC Act’s proponents’ “essential faith in the workings of a commission”), 90-92. It
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`does not appear Congress ever considered amending the FTC Act to route complaints
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`through any process other than administrative proceedings. Id.
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`C.
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`Availability Of Meaningful Review And Associated Considerations
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`In Thunder Basin, the Supreme Court identified the third preclusion factor as
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`“whether the claims can be afforded meaningful review” and then addressed—in the
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`portion of the opinion concerning this factor—whether the claims were “wholly collateral”
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`to the statute’s review provisions and whether the claims fell outside the agency’s
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`expertise. 510 U.S. at 207, 212-15. However, in both Elgin and Free Enterprise Fund, the
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`Supreme Court seemed to frame the third factor as a conjunctive, three-part test involving
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`consideration of (1) whether a finding of preclusion would foreclose all meaningful judicial
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`review; (2) whether the suit is “wholly collateral” to a statute’s review provisions; and (3)
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`whether the claims are “outside the agency’s expertise.” Elgin, 567 U.S. at 15-16; Free
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`Enterprise Fund, 561 U.S. at 489-90. It is therefore unclear whether these are distinct
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`factors or simply different ways of addressing the same thing.
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`Although the Ninth Circuit has not resolved this issue, other appellate courts have
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`recognized its “unsettled” nature and concluded that “the most critical thread in the case
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`law is . . . whether the plaintiff will be able to receive meaningful judicial review without
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`access to the district courts.” Bebo, 799 F.3