A divided Second Circuit panel ruled this week that a private equity magnate cannot challenge the constitutionality of the SEC’s use of administrative proceedings prior to the conclusion of the underlying proceeding against her.

The SEC charged Lynn Tilton in March 2015 with several violations stemming from her collection of management fees from New York–based Patriach firms. In response to the suit, Tilton filed a complaint in federal district court that claimed that the SEC’s administrative proceeding was unconstitutional. She argued that the Commission’s use of administrative law judges violates the Appointments Clause of Article II of the Constitution because the judges are not appointed by the President. The district court dismissed the suit on jurisdictional grounds and ruled that, based on three Supreme Court decisions, the constitutional challenge fell within the exclusive scope of the SEC’s administrative review scheme. The district court ruled that a federal court would only have jurisdiction over a petition for review of the administrative proceeding.

Two of the three judges on the Second Circuit panel agreed and held that “the SEC’s comprehensive scheme of administrative and judicial review” indicated that “Congress implicitly precluded federal district court jurisdiction over the appellants’ constitutional challenge.” Tilton, the appeals court ruled, must wait until the SEC’s proceeding against her is concluded before bringing any constitutional claim, and any such claim must be itself brought in an SEC administrative proceeding.

Judge Christopher Droney penned a dissent in which he expressed the view that the appeals court misinterpreted key Supreme Court precedent in weighing whether the federal courts have jurisdiction over the constitutional challenge.

The Second Circuit’s decision aligns it with identical outcomes in the Seventh and D.C. Circuits, thus making it unlikely that the Supreme Court will take up the jurisdictional issue.

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