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BOARD OF GOVERNORS, FRS v. MCORP FINANCIAL, INC. Opinion of the Court
finds that MCorp has violated that regulation, MCorp will have, in the Court of Appeals, an unquestioned right to review of both the regulation and its application. The second, and related, factor distinguishing this litigation from Kyne is the clarity of the congressional preclusion of review in FISA. In Kyne, the NLRB contended that a statutory provision that provided for judicial review implied, by its silence, a preclusion of review of the contested determination. By contrast, in FISA Congress has spoken clearly and directly: “[N]o court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any [Board] notice or order under this section.” 12 U. S. C. § 1818(i)(1) (1988 ed., Supp. II) (emphasis added). In this way as well, this litigation differs from Kyne.16 Viewed in this way, Kyne stands for the familiar proposition that “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent should the courts restrict access to judicial review.” Abbott Laboratories v. Gardner, 387 U. S. 136, 141 (1967). As we have explained, however, in this case the statute provides us with clear and convincing evidence that Congress intended to deny the District Court jurisdiction to review and enjoin the Board’s ongoing administrative proceedings. IV The Court of Appeals therefore erred when it held that it had jurisdiction to consider the merits of MCorp’s challenge to the source of strength regulation. In No. 90–913, the 16 The other cases relied upon by the Court of Appeals—Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667 (1986); Breen v. Selective Service Local Bd. No. 16, 396 U. S. 460 (1970); and Oestereich v. Selective Service System Local Bd. No. 11, 393 U. S. 233 (1968)—are distinguishable from this litigation for the same reasons. In each of those cases, the Court recognized that an unduly narrow construction of the governing statute would severely prejudice the party seeking review, and construed the statute to allow judicial review not expressly provided.
