Judy A. Johnson v. Securities and Exchange Commission, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-13499
Non-Argument Calendar
____________________
JUDY A. JOHNSON,
Plaintiff-Appellant,
versus
SECURITIES AND EXCHANGE COMMISSION,
U.S. DEPARTMENT OF JUSTICE,
U.S. ATTORNEY GENERAL,
U.S. ATTORNEY,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-13499
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:23-cv-60918-RLR
____________________
Before ROSENBAUM, N EWSOM, and G RANT, Circuit Judges.
PER CURIAM:
Judy Johnson, proceeding pro se, appeals the district court’s
dismissal of her complaint seeking review of, and mandamus relief
from, the Securities and Exchange Commission’s decision to per-
manently bar her from the whistleblower program. On appeal,
Johnson argues that the district court erred in dismissing her com-
plaint for lack of subject-matter jurisdiction. In response, the SEC
moves for summary affirmance, defending the district court’s rea-
soning. After careful review, we GRANT the SEC’s motion for
summary affirmance because the district court correctly concluded
that it lacked subject-matter over Johnson’s complaint.1
1 While the specific allegations in Johnson’s complaint focus on the SEC, she
also named the Department of Justice, Attorney General, and U.S. Attorney
as defendants. On appeal, these non-SEC defendants also move for summary
affirmance. In effect, that motion is unopposed because Johnson concedes
that she has no objection to dismissing the non-SEC defendants. Even if that
weren’t the case, Johnson abandoned any potential arguments against them
by failing to raise them in her initial brief. United States v. Campbell, 26 F.4th
860, 873 (11th Cir. 2022) (en banc). Accordingly, we GRANT the non-SEC
defendants’ request for summary affirmance.
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23-13499 Opinion of the Court 3
I.
Summary disposition is appropriate in two contexts. First,
when time is of the essence, such as “situations where important
public policy issues are involved or those where rights delayed are
rights denied.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162
(5th Cir. 1969).2 Second, when “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case, or where, as is more fre-
quently the case, the appeal is frivolous.” Id.
We review a district court’s dismissal for lack of subject-mat-
ter jurisdiction de novo. Stone v. Commissioner of Internal Revenue,
86 F.4th 1320, 1324 (11th Cir. 2023). We may affirm the district
court’s judgment on any ground supported by the record, whether
or not the district court relied on it. Id.
The statutory framework underlying the SEC’s whistle-
blower program gives it “the authority to issue such rules and reg-
ulations as may be necessary or appropriate to implement the pro-
visions of this section consistent with the purposes of this section.”
15 U.S.C. § 78u-6(j). The SEC has utilized this authority to prom-
ulgate regulations governing the whistleblower program, includ-
ing, as relevant here, 17 C.F.R. § 240.21F-8(e)(1). That regulation
grants the SEC the authority to impose a permanent bar on a claim-
ant if she makes three or more award applications found to be (1)
2 Decisions of the former Fifth Circuit are binding precedent on this court.
Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981).
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4 Opinion of the Court 23-13499
frivolous or (2) lacking a colorable connection between the tip and
the SEC’s actions for which the claimant is seeking awards. 17
C.F.R. § 240.21F-8(e)(1).
Importantly here, the relevant statutory framework also
outlines how whistleblowers may challenge the SEC’s determina-
tion about “whether” and “to whom” it will award whistleblower
awards. 15 U.S.C. § 78u‑6(f ). Specifically, such challenges “may be
appealed to the appropriate court of appeals of the United States
not more than 30 days after the determination.” Id. The SEC’s
whistleblower regulations further clarify that the appropriate
courts of appeal for seeking review are the “United States Court of
Appeals for the District of Columbia Circuit, or to the circuit where
the aggrieved person resides.” 17 C.F.R. § 240.21F‑13(a).
II.
We agree with the SEC that the district court lacked subject-
matter jurisdiction over Johnson’s complaint. To be sure, we have
not specifically addressed whether § 78u-6(f ) grants the courts of
appeals exclusive jurisdiction. But we have held that where Con-
gress specifically designates a forum for judicial review of adminis-
trative actions that forum is exclusive, even where Congress does
not use the word “exclusive” in the statute. Drummond Coal Co. v.
Watt, 735 F.2d 469, 475 (11th Cir. 1984). Significantly, that exclusive
jurisdiction also extends to petitions for mandamus relief. George
Kabeller, Inc. v. Busey, 999 F.2d 1417, 1423 (11th Cir. 1993). Because
Congress has specifically designated the “court of appeals” as the
appropriate forum for judicial review of SEC whistleblower
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23-13499 Opinion of the Court 5
determinations, the district court lacked jurisdiction to review the
SEC’s decision to permanently bar Johnson from the whistleblower
program. It likewise lacked jurisdiction over Johnson’s request for
mandamus relief.
In sum, the SEC’s position is clearly correct as a matter of
law, no substantial question exists as to the outcome of the case,
and thus summary affirmance is appropriate here. Groendyke
Transp., Inc., 406 F.2d at 1162. Accordingly, the SEC’s motion for
summary affirmance is GRANTED.
AFFIRMED.
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