Gorsuch, J., concurring in judgment
cease and desist from anything. That §5(c) does not foreclose Axon’s case finds reinforcement next door too. Section 5(d) holds that, “[u]pon the filing of the record … the jurisdiction of the court of appeals of the United States to affirm, enforce, modify, or set aside orders of the Commission shall be exclusive.” §45(d). So until an administrative record is lodged in the court of appeals—something that hasn’t happened here either—the appellate court’s jurisdiction is not exclusive and a plaintiff like Axon remains free to proceed in district court.
In both cases, the relevant statutes guide the way. Section 1331 grants district courts the power to hear Ms. Cochran’s and Axon’s claims and no other law takes that power away. Resolving jurisdictional disputes by looking to the terms of the statutes Congress has adopted may hold none of the suspense that comes with a ride on the Thunder Basin roller coaster. But that is as it should be. “Where the statutory language is clear, our sole function … is to enforce it according to its terms.” Rake v. Wade, 508 U. S. 464, 471 (1993) (internal quotation marks omitted).[1]
- ↑ The parties spar over whether the government forfeited different arguments against district court jurisdiction premised on two provisions of the Administrative Procedure Act (APA). E.g., Reply Brief for Respondent in No. 21–1239, p. 21. Forfeited or not, these arguments hardly help the government. One of the APA provisions the government cites concerns review of “preliminary, procedural, or intermediate agency action.” 5 U. S. C. §704. The government assumes we have “agency action” by dint of the “initiation” or “commencement” of agency proceedings against Ms. Cochran and Axon. Tr. of Oral Arg. in No. 21–86, p. 51; Tr. of Oral Arg. in No. 21–1239, p. 67. But “agency action” is a defined term, one that embraces “the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act.” 5 U. S. C. §551(13). Ms. Cochran and Axon are not subject to, and do not seek review of, any of those things. The other APA provision says “[t]he form of proceeding for judicial review is the special statutory review proceeding relevant to the subject matter in a court specified by statute.” §703. But as we have seen, Ms. Cochran and Axon do not seek judicial review of an SEC final order or an FTC cease-and-desist order—and both
