text:
    Raul Rivas RODRIGUEZ, a/k/a Raul Rivas, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
    No. 16-1354
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit LAR 34.1(a) November 18, 2016
    (Opinion Filed: December 19, 2016)

      Fabian Lima, Esq., 1500 Walnut Street, Suite 206, Philadelphia, PA 19102, Counsel for Petitioner
    Juría L. Jones, Esq., Holly :M. Smith, Esq., United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent
    Before: AMBRO, SHWARTZ, FUENTES, Circuit Judges.
   OPINION

SHWARTZ, Circuit Judge.

- Raul Rivas- Rodriguez (“Rivas”) petitions for review of the decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of the Immigration Judge (“IJ”) denying his motion to terminate removal proceedings and ordering him removed to the Dominican Republic. Because the conviction that served as a basis for his removal has been vacated, and the Notice of Removal did not specify his participation in a deferred adjudication program as a basis for removal, we will grant the petition. .,

I

Rivas, a native and citizen of the Dominican Republic, was admitted to the United States as a legal permanent resident when he was two years old. In September 2013, following a bench trial in. the Philadelphia Municipal Court, he was convicted of the purchase, receipt, and intentional possession of phencyclidine (“PCP”), and was sentenced to eighteen months’ probation.

Following these convictions, the United States Department of Homeland Security initiated removal proceedings against Rivas and served him with a “Notice to Appear.” A.R. 569-71. The Notice stated that he was subject to removal pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of two state law violations relating to a controlled substance.

Prior to his immigration hearing and after receiving this notice, Rivas petitioned the Municipal Court for relief from his convictions under the Pennsylvania Post Conviction Relief Act (“PCRA”). He argued that he received ineffective assistance of counsel because his trial counsel failed to advise him of the possible immigration consequences arising from his conviction and for advising him not to appeal the trial verdict. During the three-day PCRA hearing, Rivas’s trial counsel testified that he advised Rivas of the immigration consequences flowing from a conviction and that he could not recall the advice he gave regarding an appeal but “probably would have advised [Rivas] that ... it is still no.t a winnable case..., ” A.R. 149. After the hearings, and at the request of the Commonwealth, the Municipal Court denied the PCRA petition and then, by agreement of the parties, vacated the guilty verdicts and placed Rivas on pretrial probation for three years as part of a deferred adjudication agreement. Included in the order vacating the judgment were conditions requiring Rivas to: (1) “stipulate to all of the Commonwealth’s evidence in the underlying trial”; (2) reside in Pennsylvania; (3) report to court; (4) participate, if necessary, in employment training as well as drug testing and treatment; and (5) “¿gfee that any violation of any of these conditions will result in a Negotiated Stipulated Trial.” A.R. 120. The Commonwealth agreed to withdraw the charges if Rivas successfully completed his pretrial probation.

Rivas thereafter filed a motion to terminate his removal proceedings on the ground that his convictions, which constituted the basis for his potential removal, had been vacated. His motion also averred that “[t]he sentences have not been vacated solely to avoid the immigration consequences of his conviction.” A.R.' 128. The IJ denied Rivas’s motion arid ordered him removed to the Dominican Republic. The IJ found that since Rivas’s trial counsel testified at the PCRA hearings that he did advise Rivas of the immigration consequences of an adverse judgment, and since the Municipal Court denied the PCRA petition, the. IJ was “convinced that the primary and probably the only reason for the conviction vacatur was to permit the respondent to avoid the [i]mmigration consequences of his drug conviction.” App. I 9-10.

The BIA agreed-, finding that the Municipal Court vacated Rivas’s convictions to allow him to avoid their immigration consequences. The BIA also found that even if Rivas’s convictions had been vacated on substantive -grounds, the terms of the order vacating the convictions still amounted to a “conviction” under the Immigration and Nationality Act (“INA”). Specifically, the BIA found that since Rivas stipulated to all of the state’s evidence against him as part of the agreement vacating his convictions, and since his liberty was restrained under the resulting probation program, he remained “convicted” under immigration law and was removable. Consequently, the BIA affirmed the IJ’s denial of Rivas’s motion to terminate on two independent grounds. Rivas petitions for review.

II

Section 1227(a)(2)(B)(i) of the INA provides that “[a]ny alien who at any time after admission has been convicted of a violation of ... any law or regulation of a State ... relating to a controlled substance ... is deportable.” The issue here is whether the disposition of Rivas’s state court criminal proceedings render him “convicted” for . purposes of the INA.

A

A petitioner whose criminal conviction was vacated is no longer “convicted” under the INA where the conviction was vacated on the basis of a substantive or procedural defect in the underlying criminal proceedings. In re Pickering, 23 I. & N. Dec. 621, 624 (BIA 2003), rev’d on other grounds, 466 F.3d 263 (6th Cir. 2006). Conversely, where “a court vacates a conviction for reasons unrelated to the merits of the underlying criminal proceedings,” such as for rehabilitation or to allow a petitioner to avoid the immigration effects of the conviction, then the petitioner “remains ‘convicted’ for immigration purposes.” Id.; see also Cruz v. Att’y Gen., 452 F.3d 240, 242 (3d Cir. 2006) (concluding that Pickering provides a reasonable interpretation of § 1227(a)(2)(B)()i); Pinho v. Gonzales, 432 F.3d 193, 208-10 (3d Cir. 2005) (same). A petitioner who seeks relief from removal bears the burden of proving that his conviction was vacated. 8 C.F.R. § 1240.8(d); Syblis v. Att’y Gen., 763 F.3d 348, 352 (3d Cir. 2014).

Rivas filed a motion for post-conviction relief based on alleged ineffective assistance of trial counsel. After three days of hearings, which included testimony -from trial counsel, the Commonwealth agreed to a settlement pursuant to which Rivas’s convictions were vacated. Although- Rivas demonstrated that his convictions were vacated, the IJ and BIA concluded that Rivas failed to show they were vacated within the meaning of the immigration laws.

To determine whether a vacated conviction is nonetheless a conviction for immigration purposes, the IJ must examine the state court record to identify the reasons why the state court vacated the conviction. Pinho, 432 F.3d at 215. To complete this task, the IJ “must look first to the order [that vacated the conviction]. If the order explains the court’s reasons for vacating the conviction, the [IJ] ’s inquiry must end there. If the order does not give a clear statement of reasons, the [IJ] may look to the record before the court when the order was issued. No other evidence of reasons may be considered.” Id. Thus, the IJ may rely only on reasons explicitly stated in the record and may not impute an unexpressed motive for vacating a conviction. See id.; Cruz, 452 F.3d at 244, 248 (holding that the BIA could reasonably determine that a conviction was vacated to allow a petitioner to avoid immigration consequences where a state prosecutor’s letter stipulating the terms of a settlement agreement explicitly stated that the petitioner’s scheduled deportation was a reason for the state’s support for vacating the conviction). Put simply, “[w]e will not ... permit[ ] ... speculation ... about the secret motives of state judges and prosecutors.” Pinho, 432 F.3d at 214-15.

Here, both the IJ and the BIA opined that the state court likely vacated Rivas’s convictions to allow him to avoid the convictions’s immigration consequences. To support this conclusion, the IJ relied on the facts that Rivas’s trial counsel testified at the PCRA hearings that he did advise his client of the immigration consequences of a potential conviction, and that the state court denied Rivas’s PCRA petition. However, these facts do not show that the state court vacated the convictions to allow Rivas to avoid their immigration consequences. Moreover, though trial counsel’s testimony might have weakened Rivas’s ineffective-assistance-of-counsel claim, the record fails to show that his counsel’s alleged ineffectiveness was not the reason the convictions were vacated. We know only that the application to vacate was based on two ineffective-assistance-of-counsel claims stemming from the alleged failure of Rivas’ counsel to advise him of the immigration consequences of his convictions -and advice to forgo appealing his convictions, and that the convictions were in fact vacated. See Pinho, 432 F.3d at 211-13 (holding that where the record shows that the state did not answer a pending ineffective-assistance-of-counsel claim before agreeing to settlement, this supports the conclusion that the settlement was reached as a result of the constitutional claim). In addition, the IJ did not point to any evidence undermining the conclusion that the Commonwealth settled because of Rivas’s pending ineffectiveness claim with respect to his trial counsel’s failure to advise him to appeal the convictions. In fact, the IJ repeatedly asserted that the state court record was not clear as to the reasons why the prosecutor agreed to settle Rivas’s claim and why the court vacated his' convictions. Moreover, the BIA failed to confíne itself to the factual record. Beyond adopting the IJ’s findings, it also quoted the following passage wherein the state court addressed Rivas and discussed the vacatur of his convictions:

[B]ecause you know the consequences of what would have happened with the conviction that you had— Everybody understands it, what would have happened over a possession conviction for POP. You have been given an incredible opportunity here, and I think it’s the right opportunity, and I think it’s the right result, but you need to understand, it is that opportunity. And if there [are] temptations, go the other way, criminal activity, drug use, anything, there’s no margin for error. If you want to be here with your family and you want to move forward in your life and do things, then you need to understand that.

App. I 5 (alterations, other than the ellipses, in original). The BIA found that these statements showed that the court vacated Rivas’s convictions to allow him to avoid the resultant immigration consequences. In reaching this finding, however, it speculated as to the unexpressed motives of the state court—an analysis which we barred in Pinho. 432 F.3d at 215. It is not plain in the above passage that the consequences of convictions to which the court refers are immigration consequences, as opposed to penal consequences flowing from a conviction. Moreover, even if the passage addresses the immigration consequences of the convictions, it does not indicate the reasons why the court vacated the convictions and does not show that the court vacated the convictions because of those consequences. Thus, like .the IJ, the BIA erred in failing to restrict itself to the factual record and impermissibly speculated about the “secret motives of state judges and prosecutors.” Pinho, 432 F.3d at 215.

In sum, Rivas met his burden to show that his convictions were vacated for purposes of the immigration laws, and the record does not show that Rivas’s convictions were vacated to avoid their immigration consequences.

B

The BIA also found-that even if Rivas’s convictions had been vacated on substantive grounds, he nonetheless stood “convicted” for purposes of the immigration laws under the terms of the deferred adjudication agreement. Specifically, it found that since the state court’s order vacating Rivas’s convictions was conditioned on his stipulating to all of the state’s evidence against him for the underlying convictions, and since the order imposed conditions that restricted Rivas’s liberty, he stood “convicted” for purposes of the INA. See 8 U.S.C. § 1101(a)(48)(A) (stating that a petitioner is “convicted” under the INA if he has “admitted sufficient facts to warrant a finding of guilt” and “the judge has ordered some form of.punishment, penalty, or restraint on the alien’s liberty-to be imposed”). We need not decide whether the deferred adjudication agreement could render Rivas “convicted” under the INA since basing Rivas’s removal on his deferred adjudication would violate his due process rights.

“It is well established, that if an alien is a lawful permanent resident of the United States and remains physically present thereHe may not be deprived of his life, liberty or property without due process of law.” Kwong Hai Chew v. Colding, 344 U.S. 590, 596, 73 S.Ct. 472, 97 L.Ed. 576 (1953). Essential to the due process rights of a noncitizen permanent resident is that “before his expulsion[,] he is entitled to notice of the nature of the charge and a hearing at least before an executive or administrative tribunal.” Id. at 597, 73 S.Ct. 472; see also United States v. Torres, 383 F.3d 92, 104 (3d Cir. 2004) (citing Kwong Hai Chew and reiterating that an alien in removal proceedings has a due process- right to, among other things, “notice of the charges against him”).

The INA sets forth the notice that must be given to an alien before removal proceedings can commence:

In removal proceedings under section 1229a of this title, written notice ... shall be given in person to the alien ... specifying the following:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceedings are conducted.
(C) The acts or conduct alleged to be in violation of law.
(D) The charges against the alien and the statutory provisions alleged to have been violated.

8 U.S.C. § 1229(a)(1); see Choeum v. I.N.S., 129 F.3d 29, 38-39 (1st Cir. 1997) (holding that the due process right to notice owed to a noncitizen permanent resident charged with removability is coextensive with the notice required by § 1229(a)(1)).

The only Notice to Appear that DHS served upon Rivas specified that he was charged with removability on the basis of two factual predicates: First, “[y]ou were, on September 26, 2013, convicted in the Municipal Court at Philadelphia for the offense of [i]ntentional possession of a controlled substance by person not registered, to wit PCP, in violation of Pa. C.S.A Title 35 Section 780-113 subsection A16,” A.R. 571. Second, “[y]ou were, on September 26, 2013, convicted in the Municipal Court at Philadelphia for the offense of. [p]urchase/receipt of controlled substance by unauthorized person, to wit: PCP, in violation of Pa. C.S.A Title 35 Section 780-113 subsection A19.” A.R. 571. The Government never lodged additional immigration charges against Rivas. See 8 C.F.R, § 1240.10(e) (“At any time during the proceeding, additional or substituted charges of inadmissibility and/or deportability and/or factual allegations may be lodged by the Service in writing.”). As a result, Rivas never received notice charging him as removable on the basis of the terms of the 2015 deferred adjudication agreement, entered almost two years after the convictions identified in the Notice to Appear.

Consequently, the BIA’s finding that Rivas’s motion to terminate removal proceedings could be denied based on the deferred adjudication contravenes § 1229(a)(1)(c)’s requirement that the alien be given notice of “[t]he acts or conduct alleged to be in violation of law.” To remove Rivas on the basis of a deferred adjudication in 2015 would base his removal on an entirely different factual ground from that set forth in the Notice to Appear and would violate Rivas’s due process rights to notice of the bases for his removal.

Ill

For the foregoing reasons, we will grant Rivas’s petition for review.

      . The IJ had jurisdiction under 8 C.F.R. § 1240.1(a), and the BIA had jurisdiction pursuant to 8 C.F.R. § 1003.1(b)(3). Although we generally lack jurisdiction "to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in [§ 1227(a)(2)(B) ],” we have jurisdiction to review an order of removal to the extent it raises "constitutional claims or questions of law.’’ 8 U.S.C. § 1252(a)(2)(C)-(D). Consequently, we have jurisdiction to determine "whether, as a matter of law, the disposition of [Rivas’s] Pennsylvania criminal charge constitutes a ‘conviction’ for immigration purposes.” Frias-Camilo v. Att’y Gen., 826 F.3d 699, 702 n.4 (3d Cir. 2016) (citation omitted). Since the BIA’s opinion is the "final order,” this Court’s review is typically confined to the BIA’s opinion. Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001). Where, as here, the BIA expressly adopts the IJ’s opinion, this Court also reviews that opinion to the extent the BIA adopted it. Sandie v. Att’y Gen., 562 F.3d 246, 250 (3d Cir. 2009).

      . The INA defines "conviction” as follows:
      (i) a judge or jury has found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and
      (ii) the judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed,
      8 U.S.C. § 1101(a)(48)(A).

      . Contrary to the Government’s argument, Rumierz v. Gonzales, 456 F.3d 31 (1st Cir. 2006), does not apply to Rivas’s vacatur. There, because the petitioner's motion for post-conviction relief did not specify any substantive reasons to vacate his conviction, the court held that the petitioner could not show that his conviction was vacated on substantive grounds where it was vacated pursuant to an agreement and the record was otherwise silent as to the reason for the vacatur. Id In contrast, Rivas’s motion for post-conviction relief did specify substantive grounds upon which he challenged his convictions, and so Rumierz is.inapplicable.

      . Rivas argues that the DHS waived its right to rely on the deferred adjudication as a basis for removal. Although he casts this argument in terms of waiver, the real complaint is that he did not receive notice that he might be removed on this ground. Because his brief repeatedly states that the Notice to Appear charged him as removable on the basis of the Pennsylvania convictions and that by holding him removable on the basis of the deferred adjudication agreement the BIA "created an .entirely new reason for upholding the IJ's decision,” he has in essence asserted that his due process - rights were violated. Petitioner Br. at 3.

      . If the immigration authorities wish to pursue Rivas's removal based on an assertion that he stands "convicted” of a controlled substance offense as a result of the terms of his deferred adjudication, then they can initiate removal proceedings anew by serving notice to Rivas stating the grounds upon which he is charged with removability. Duhaney v. Att’y Gen., 621 F.3d 340, 349 (3d Cir. 2010) (“Although there are common elements of fact between the two removal proceedings, the critical acts and the necessary documentation were different.... Accordingly, we hold that the doctrine of res judicata did not bar the Government from lodging additional charges of removability after Duhaney s 2000 conviction was vacated.”). Nothing herein constitutes a view as to whether such proceedings should be commenced or would succeed.


source: Caselaw Access Project

author: WILKINSON, Circuit Judge:

license: Public Domain

text:
    Herbert E. LIVERMAN; Vance R. Richards, Plaintiffs-Appellants, v. CITY OF PETERSBURG; John I. Dixon, III, both individually and in his capacity as the Chief of Police for the City of Petersburg Bureau of Police, Defendants-Appellees.
    No. 15-2207
    United States Court of Appeals, Fourth Circuit.
    Argued: October 27, 2016
    Decided: December 15, 2016

      ARGUED: Andrew Thomas Bodoh, THOMAS H. ROBERTS & ASSOCIATES, PC, Richmond, Virginia, for Appellants. Leslie A. Winneberger, BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for Appel-lees. ON BRIEF: William F. Etherington, BEALE, DAVIDSON, ETHERINGTON & MORRIS, P.C., Richmond, Virginia, for Appellees.
    Before WILKINSON and TRAXLER, Circuit Judges, and BRUCE H. HENDRICKS, United States District Judge for the District of South Carolina, sitting by designation.
   Affirmed in part, reversed in part, and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge TRAXLER and Judge HENDRICKS joined.

WILKINSON, Circuit Judge:

Two police officers challenge disciplinary actions for violations of their Department’s social networking policy. The district court denied relief on most of their claims. While we are sensitive to the Department’s need for discipline throughout the chain of command, the policy here and the disciplinary actions taken pursuant to it would, if upheld, lead to an utter lack of transparency in law enforcement operations that the First Amendment cannot countenance. For the reasons that follow, we affirm in part, reverse in part and remand for further proceedings.

I.

The pertinent facts in this case are not in dispute. Plaintiffs Herbert Liverman and Vance Richards were veteran police officers in the City of Petersburg’s Police Department. Both served as field officers under Chief John Dixon, who led the Department. Dixon in turn served under the general direction of the City Manager.

In April 2013, Chief Dixon issued a general order revising the Department’s social networking policy. That policy governs officers’ use of social media platforms. The preface to the revised policy prohibits in sweeping terms the dissemination of any information “that would tend to discredit or reflect unfavorably upon the [Department] or any other City of Petersburg Department or its employees.” J.A. 161. The central provision of the policy, which we will refer to as the Negative Comments Provision, states:

Negative comments on the internal operations of the Bureau, or specific conduct of supervisors or peers that impacts the public’s perception of the department is not protected by the First Amendment free speech clause, in accordance with established case law.

J.A. 162. Another provision, which we label the Public Concern Provision, specifies:

Officers may comment on issues of general or public concern (as opposed to personal grievances) so long as the comments do not disrupt the workforce, interfere with important working relationships or efficient work flow, or undermine public confidence in the officer. The instances 'must be judged on a case-by-case basis.

Id. The policy nonetheless “strongly discourages employees from posting information regarding off-duty activities” and provides that violations will be forwarded to .the Chief of Police for “appropriate disciplinary action.” J.A. 163.

This case concerns the Department’s application of the social networking policy to the following conversation between Liver-man and Richards. While off-duty on June 17, 2013, Liverman posted a message to his Facebook page:

Sitting- here reading posts referencing rookie cops becoming instructors. Give me a freaking break, over 15 years of data collected by the FBI in reference to assaults on officers and officer deaths shows that on average it takes at least 5 years for ah officer to acquire the necessary skill set to know the job and perhaps even longer to acquire the knowledge to teach other officers. But in todays world of instant gratification and political correctness we have rookies in specialty units, working as field training officer’s and even as instructors. Becoming a master of your trade is essential, not only does your life depend on it but more importantly the fives of others. Leadership is first learning, knowing and then doing.

J.A. 398. More than thirty people “liked” or commented on this post! Richards, also off-duty at the time, commented as follows:

Well said bro, I agree 110%... Not to mention you are seeing more and more younger Officers being promoted in a Supervisor/ or roll. It’s disgusting and makes me sick to my stomach DAILY. LEO Supervisors should be promoted by experience... And what comes with experience are “experiences” that “they” can pass around to the Rookies and younger less experienced Officers. Perfect example, and you know who I’m talking about.How can ANYONE look up, or give respect to a SGT in Patrol with ONLY 1 l/2yrs experience in the street? Or less as a matter of fact. It’s a Law Suit waiting to happen. And you know who will be responsible for that Law Suit? A Police Vet, who knew tried telling and warn the admin for promoting the young Rookie who was too inexperienced for that roll to begin with. Im with ya bro_smh

J.A. 399. Later that day, Liverman responded to Richards with a comment of his own:

There used to be a time when you had to earn a promotion or a spot in a specialty unit.. .but now it seems as though anything goes and beyond officer safety and questions of liability, these positions have been “devalued”-... and when something has no value, well it is worthless.

Id. Richards then replied:

Your right.The next 4yrs can’t get here fast enough... From what I’ve been seeing I don’t think I can last though. You know the old “but true” saying is.... Your Agency is only as good as it’s Leader(s)... It’s hard to “lead by example” when there isn’t one... .smh

J.A. 400.

Among those who liked or commented on the Facebook postings, most were current or former Department officers. Two sergeants, Liverman’s and Richards’s supervisors, learned of the exchange and notified Chief Dixon of the issue. Dixon determined that the statements violated the Department’s social networking policy and instructed the sergeants to discipline the officers. In the disciplinary action forms, the Department stated that Liver-man’s follow-up comment and both of Richards’s comments violated the Negative Comments Provision. They each received an oral reprimand and six months’ probation, but were advised that such discipline would not affect their eligibility for promotion. Both the City Manager and Human Resources Director signed the personnel action forms indicating their probationary status.

Several weeks later, however, Chief Dixon altered the- qualifications for promotion. The new protocol expressly excluded any officers on probation from participating in the promotion process. Accordingly, when Liverman and Richards applied for open sergeant positions, the Department notified them that they were ineligible to sit for the promotional exam.

On October 1, 2013, the two officers sent a letter informing the City that they intended to challenge the disciplinary actions. Shortly thereafter, Liverman and Richards were the subject of several complaints and investigations within the Department. Based on the findings, Chief Dixon decided to fire Liverman, but Liyer-man resigned before receiving notice of his termination.

On March 5, 2014, Liverman and Richards filed a six-count complaint in federal district court under 42 U.S.C. § 1983, seeking damages and other relief against Chief Dixon and the City for various violations of the First Amendment. The two officers claimed that the social networking policy infringed their free speech rights in Counts One (Liverman) and Two (Richards). Liverman and Richards also challenged the adverse disciplinary actions taken pursuant to the policy in Counts Three and Four, respectively. Finally, they alleged in Counts Five and Six that the Department instituted subsequent investigations against them in retaliation for proceeding with the instant suit.

The district court granted Liverman summary judgment on his claim that the social networking policy infringed his right to free speech, but nonetheless found that Chief Dixon was entitled to qualified. immunity because the policy fell within a gray zone. On Liverman’s challenge to the disciplinary action, the court found that qualified immunity again shielded Dixon’s decision because the contours of protected speech in this area were not clearly established. The district court next denied relief on Richards’s challenges to the policy and the discipline, holding that Richards’s speech was purely personal and thus not protected by the First Amendment. For both of their retaliation claims, the court concluded that the subsequent internal investigations were not retaliatory. This appeal followed.

n.

The legal framework governing public employee speech claims is well known. Public employees may not “be compelled to relinquish the First.Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest.” Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Underlying this principle is the recognition that “public employees are often the members of the community who are likely to have informed opinions as to the operations of their public employers.” City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004) (per curiam). Nonetheless, a citizen who accepts public employment “must accept certain limitations on his or her freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Government employers enjoy considerable discretion to manage their operations, and the First Amendment “does not require a public office tó be run as a roundtable for employee complaints over internal office affairs.” Connick v. Myers, 461 U.S. 138, 149, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

Courts begin the First Amendment inquiry by assessing whether the speech at issue relates to a matter of public, concern. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. If speech is purely personal, it is not protected and the inquiry is at an end. If, however, the speech is of public concern, courts must balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Id.; see also Connick, 461 U.S. at 142, 103 S.Ct. 1684.

Against this backdrop, we turn to the officers’ First Amendment challenges to the Department’s social networking policy and the subsequent disciplinary actions taken against them.

A.

The district court granted summary judgment to Liverman on his challenge to the social networking policy, but denied Richards’s parallel claim on the grounds that his speech was not protected by the First Amendment. We hold that the Department’s social networking policy is unconstitutionally overbroad and, for the following reasons, award judgment to Richards on his claim as well.

Although regulations on social media use may appear to present novel issues, we agree with the district court that such questions are amenable to the traditional analysis set forth in Connick and Pickering. Indeed, the particular attributes of social media fit comfortably within the existing balancing inquiry: A social media platform amplifies the distribution of the speaker’s message—which favors the employee’s free speech interests—but also increases the potential, in some cases exponentially, for departmental disruption, thereby favoring the employer’s interest in efficiency. What matters to the First Amendment analysis is not only the medium of the speech, but the scope and content of the restriction.

Here we deal with a broad social networking policy setting forth the parameters of public employee speech. In United States v. Nat’l Treasury Employees Union (NTEU), 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995), the Supreme Court addressed how courts should apply Pickering when a generally applicable statute or regulation (as opposed to a post-hoc disciplinary action) operates, as a prior restraint on speech. NTEU involved a statute that prohibited federal employees from accepting any compensation for giving speeches or writing articles, even when the topic was unrelated to the employee’s official duties. See id. at 457, 115 S.Ct. 1003. Emphasizing that the honoraria ban impeded a “broad category of expression” and “chills potential speech before it happens,” the Court held that “the Government’s burden is greater with respect to this statutory restriction on expression than with respect to [the] isolated disciplinary action[s]” in Pickering and its progeny. Id. at 467, 468, 115 S.Ct. 1003. Accordingly, “[t]he Government must show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outwéighed by that expression’s ‘necessary impact on the actual operation' of the Government.” Id. at 468, 115 S.Ct. 1003 (quoting Pickering, 391 U.S. at 571, 88 S.Ct. 1731). Further, the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Id. at 475, 115 S.Ct. 1003.

The threshold question in this case is whether the Department’s policy regulates officers’ rights to speak on matters of public concern. There can be no doubt that it does: the restraint is a virtual blanket prohibition on all speech critical of.the government employer. The explicit terms of the Negative Comments Provision prevent plaintiffs and any other officer from making unfavorable comments on the operations and policies of the Department, arguably the “paradigmatic” matter of public concern. Sanjour v. EPA, 56 F.3d 85, 91 (D.C. Cir. 1995); see also Roe, 543 U.S. at 80, 125 S.Ct. 521.

Weighing the competing interests on either side of the Pickering/NTEU balance, we begin by noting the astonishing breadth of the social networking policy’s language. The policy seeks to prohibit the dissemination of any information on social media “that would tend to discredit or reflect unfavorably upon the [Department].” J.A. 161. In particular, the Negative Comments Provision proscribes “Megative comments on the internal operations of the Bureau”—which could be just about anything—or on the “specific conduct of supervisors or peers”—which, again, could be just about anything. J.A. 162.

The interests of “present and future employees” and their “potential audiences” in such speech is manifestly significant. See NTEU, 513 U.S. at 468, 115 S.Ct. 1003. We do not, of course, discount the capacity of social media to amplify expressions of rancor and vitriol, with all its potential disruption of workplace relationships that Con-nick condemned. But social networking sites like Facebook have also emerged as a hub for sharing information and opinions with one’s larger community. And the speech prohibited by the policy might affect the public interest in any number of ways, including whether the Department is enforcing the law in an effective and diligent manner, or whether it is doing so in a way that is just and evenhanded to all concerned. The Department’s law enforcement policies could well become a matter of constructive public debate and dialogue between law enforcement officers and those whose safety they are sworn to protect. After all, “government employees are often in the best position to know what ails the agencies for which they work.” Waters v. Churchill, 511 U.S. 661, 674, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994) (plurality opinion). But this policy will cut short all of that. To repeat, it squashes speech on matters of public import at the very outset.

Because the Department’s social - networking policy unmistakably imposes a significant burden on expressive activity, we next consider whether the Department has adequately established “real, not merely conjectural” harms to its operations. See NTEU, 513 U.S. at 475, 115 S.Ct. 1003. Chief Dixon’s primary contention is that divisive social media use undermines the Department’s interests in maintaining camaraderie among patrol officers and building community trust. These are, to be sure, legitimate interests. “When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.” Connick, 461 U.S. at 151-52, 103 S.Ct. 1684. And such deference applies with special force to police departments because they are “paramilitary—discipline is demanded, and freedom must be correspondingly denied.” Maciariello v. Sumner, 973 F.2d 295, 300 (4th Cir. 1992).

Here, however, the Department fails to satisfy its burden of demonstrating actual disruption to its mission. Apart from generalized allegations of budding “divisiveness” and claims that some “patrol officers sought [shift] transfers,” J.A. 502, Chief Dixon presented no evidence of any material disruption arising from plaintiffs’—or any other officer’s—comments on social media. We do not deny that officers’ social media use might present some potential for division within the ranks, particularly given the broad audience on Facebook. But the speculative ills targeted by the social networking policy are not sufficient to justify such sweeping restrictions on officers’ freedom to debate matters of public concern. See Connick, 461 U.S. at 152, 103 S.Ct. 1684; McVey v. Stacy, 157 F.3d 271, 279 (4th Cir. 1998) (Murnaghan, J., concurring in part and concurring in the judgment) (“A stronger showing of public interest in the speech requires a concomitantly stronger showing of government-employer interest to overcome it.”).

Defendants’.fallback argument is that, even if the Negative Comments Provision itself is overbroad, the Public Concern Provision significantly narrows the reach of the social networking policy. This second provision, which permits comments on “issues of general or public concern ... so long as the comments do not disrupt the workforce,” J.A. 162, is ostensibly more aligned with the case-by-case analysis of Connick and Pickering. But the milder language in a single provision does not salvage the unacceptable over-breadth of the social networking policy taken as a whole. Indeed, the Public Concern Provision does not purport to nullify or otherwise supersede the blanket censorship endorsed by the Negative Comments Provision. If the Department wishes to pursue a narrower social media policy, then it can craft a regulation that does not have the chilling effects on speech that the Supreme Court deplored. We cannot, however, allow the current policy to survive as a management- and disciplinary mechanism.

B.

Plaintiffs next assert that the district court erred in dismissing their challenges to the Department’s disciplinary actions. We agree..In fact, the facial overbreadth of the social networking policy is borne out by the disciplinary actions taken pursuant to it.

When evaluating an ex post disciplinary action, rather than an ex ante restraint on speech, the nature of our review is narrower than the analysis under NTEU. In this context, our court has adopted the traditional Connick/Pickering three-part test to determine whether a public employee has sustained a First Amendment challenge to an adverse employment action. First, we determine whether the employee spoke as a citizen on a matter of public concern. Second, we evaluate whether the employee’s interest in First Amendment expression outweighs the employer’s interest'in the efficient operation of the workplace. And finally, we decide whether the protected speech was a substantial factor in the employer’s decision to take adverse employment action. McVey, 157 F.3d at 277-78.

The first inquiry, once again, is whether Liverman and Richards spoke on matters of public concern. “Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community.” Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004). In resolving this question, the Supreme Court has directed courts to examine the “content, form, and context of a given statement.” Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. Although defendants are certainly correct that “personal complaints and grievances about conditions of employment” are not matters of public concern, Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007), they misconstrue the thrust of Liverman’s and Richards’s comments.

The form and context of the comments indicate that plaintiffs did -in fact speak on an issue of public concern. Regarding the form of speech, we find it significant that the officers chose Facebook as the forum for their communication. As our colleague Judge Traxler has recognized, Facebook is a dynamic medium through which users can interact and share news stories or opinions with members of their community. See Bland v. Roberts, 730 F.3d 368, 385 (4th Cir. 2013). Similar to writing a letter to a local newspaper, see Pickering, 391 U.S. at 569-70, 88 S.Ct. 1731, publicly posting on social media suggests an intent to “communicate to the public or to advance a political or social point of view beyond the employment context,” Borough of Duryea v. Guarnieri, 564 U.S. 379, 131 S. Ct. 2488, 2501, 180 L.Ed.2d 408 (2011). Further, the officers’ Facebook comments were prompted by other “posts referencing rookie cops becoming instructors.” J.A. 398. Accordingly, the context of the speech buttresses our conclusion that Liverman and Richards were not simply airing personal grievances but rather were joining an ongoing public debate about the propriety of elevating inexperienced police officers to supervisory roles.

The content of the Facebook comments further confirms that they dealt with issues of public import. Defendants seek to carve up the Facebook colloquy and assert that Liverman’s and Richards’s comments should be considered separately. Yet this court has previously rejected attempts to “divide[ ] [speech] into discrete components to conduct a constitutional analysis on each.” Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 157 (4th Cir. 1992). Because we do not have “license to ignore the. portions” of the communication that touch on a matter of public concern, we must view the statements “as a single expression of speech to be considered in its entirety.” Campbell, 483 F.3d at 267. This approach is consistent with the typical experience on social media, where users engage .in interactive discussions through a series of posts and comments. Liverman’s initial post invited others to pick up on his observations; Richards' responded, and they began a public dialogue about the Department’s promotion policies. Their comments, therefore, should be read in conjunction as part of a single conversation on the qualifications of instructors and the increasing number of rookies thrust into teaching roles.

Taken together, plaintiffs’ statements stand in stark contrast to the sort of “individualized concerns” this court has characterized as personal grievances. See Brooks v. Arthur, 685 F.3d 367, 374 (4th Cir. 2012). Each veteran officer grounded his statements in specialized knowledge and expressed a general “concern about the inability of the [Department] to carry out its vital public mission effectively.” Cromer v. Brown, 88 F.3d 1315, 1325-26 (4th Cir. 1996). Liverman’s initial post cited an FBI study that underscored the danger of promoting green officers, and his subsequent comment noted the implications for “officer safety and questions of liability.” J.A. 398-99. Notwithstanding his more colloquial tone, Richards touched on the same issues of public import in his responses. First, he agreed with Liverman’s observations and echoed the concerns about “more and more younger Officers being promoted.” J.A. 399. Then he turned to the issue of skill development raised by the FBI study and concluded that “LEO .Supervisors should be promoted by experience” and the “Agency is only as good as it’s Leader(s).” J.A. 399-400.

Whether plaintiffs were correct or not in their views is not the issue. The matter they addressed was of more than personal import. We thus have no trouble finding that plaintiffs’ Facebook comments, which addressed risks posed by the Department’s inexperienced supervisors, raised issues of public concern. See, e.g., Brooks, 685 F.3d at 375 (explaining that when an employer’s practice “crosses a line to the point that imperils the public welfare ... then the public would rightly be concerned about the matter”); Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir. 2000) (holding that firefighter’s complaints about inadequate training and unsafe procedures during emergency calls were matters of public concern).

The second and third prongs of the Connick/Pickering inquiry are not in genuine dispute. Serious concerns regarding officer training and supervision are weighty matters that must be offset by an equally substantial workplace disruption. Chief Dixon failed to establish a reasonable apprehension that plaintiffs’ social media comments would meaningfully impair the efficiency of the workplace. See Maciariello, 973 F.2d at 300. Finally, defendants do not seriously dispute that plaintiffs’ Facebook comments were a substantial factor in the decision to discipline them—indeed, both disciplinary action forms cited violations of the Negative Comments Provision as the sole basis for the oral reprimand and probation. J.A. 427-28.

In light of the First Amendment protection accorded to the officers’ posts, we conclude that the discipline they received pursuant to the social networking policy was unconstitutional.,

C.

In the alternativej Dixon contends that the Department’s decisions to adopt the social. networking policy and take disciplinary action pursuant to the Negative Comments Provision are entitled to qualified immunity. The doctrine of qualified immunity shields government officials “who commit constitutional violations but who, in light of clearly established law, could reasonably believe that their actions were lawful.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

Having found that Dixon violated the officers’ First Amendment rights, we must consider whether such rights were “clearly established”- at the time of the events at issue. “We do not require a case directly on point” in order to conclude that the law was clearly established, “but existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 131 S.Ct. 2074, 2083, 179 L.Ed.2d 1149 (2011).

Dixon first argues that he acted reasonably in adopting the social networking policy because the policy purported to track the subtle balancing calculus in Pickering. We agree that officials “are not liable for bad guesses in gray areas,” Maciariello, 973 F.2d at 298, and “do not expect [police chiefs] to be judges and to have the training to sort through every intricacy of case law.” Bland, 730 F.3d at 393. But this case does not involve gray areas: the right against such a sweeping prior restraint on speech was clearly established and then some. Indeed, it is axiomatic that the government may not ban speech on the ground that it expresses an objecting viewpoint. See R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Accordingly, there can be no doubt that prohibiting any “[n]ega-tive comments on the internal operations of the Bureau, or specific conduct of supervisors or peers”—even comments of great public concern—violates the First Amendment. J.A. 162.

Dixon also asserts that the disciplinary actions taken pursuant to the policy were reasonable in light of the vague boundaries distinguishing public and private speech. Given the patent unconstitutionality of the social networking policy,, however, efforts to enforce the policy are similarly suspect. After all, the core of the policy was a prohibition on legitimate speech and, as detailed above, we have little difficulty locating the officers’ speech within this protected sphere. Plaintiffs raised serious concerns regarding the Department’s training programs and the promotion of inexperienced supervisors, both of which are matters of public concern. As this court has held time and again, it was clearly established law that such speech is protected by .the First Amendment. See, e.g., Brooks, 685 F.3d at 375; Goldstein, 218 F.3d at 353.

We appreciate the need for order and discipline in the ranks. See Maciariello, 973 F.2d at 300 (recognizing that “greater latitude is afforded to police department officials in dealing with dissension”). At the same time, we cannot countenance an arm of government with such enormous powers being removed to this extent from public scrutiny. This is not an all-or-nothing matter; there is a balance to be struck. But the Department’s social networking policy, and the disciplinary actions taken to enforce it, lean too far to one side. We therefore hold that Chief Dixon is not entitled to qualified immunity.

III.

Finally, plaintiffs argue that Dixon retaliated against them for filing their First Amendment suit. We agree with the district court that their retaliation claims are without merit.

Plaintiffs argue that the retaliation took the form of investigating their conduct on the force. We cannot conclude, however, that plaintiffs have raised an issue of triable fact that the investigations were pretextual. See McVey, 157 F.3d at 277-78. There were independent bases for each investigation. Liverman was investigated twice. In notifying the City of his First Amendment claims, Liverman requested a wide range of personnel records. While searching for responsive documents, the Department discovered that Liverman had sent sexually explicit emails to a female officer. The Department launched an investigation for sexual harassment, during which Liverman admitted to engaging in sexual misconduct on Department, property and while on duty. Additionally, Liv-erman was investigated for ah incident in which he ignored Chief Dixon’s orders and failed to maintain his duty post as directed.

Richards was also investigated twice. Both inquiries were opened as a result of complaints initiated not by Chief Dixon but by his fellow officers. The first complaint related to a report Richards allegedly made to the media about another officer’s spouse. The Department concluded the investigation within one week, after Richards demonstrated his innocence. The second complaint arose from his involvement with the Department's Shop with a Cop program. Once again, the Department determined that the allegations were unfounded.

Apart from generalized assertions regarding the existence of the investigations, plaintiffs fail to offer any evidence that the investigations were retaliatory. Far from groundless “fishing expeditions,” Appellants’ Br. at 34, each arose from discrete allegations of misconduct. Without more, we see no reason to question the legitimacy of the Department’s investigations. After all, simply filing a Pickering claim does not confer indefinite immunity on employees or insulate them from subsequent investigation and discipline for unrelated misconduct. Granting relief on plaintiffs’ retaliation- claims would handcuff the Department by forcing inaction even where there is police behavior that warrants close review. Speech is one thing; misconduct something else. There are countless unobjectionable reasons why a police department might want to investigate an officer’s performance, including absence from work, tardiness, insubordination, illegal activity, and basic failure to carry out one’s duties in a competent and impartial fashion. The garden-variety investigations into Liver-man’s and Richards’s conduct were no different, and we therefore reject their claims of retaliation.

IV.

The City argues that Liverman and Richards have failed to establish municipal liability. The district court agreed. We remand on this question to give the district court a chance to assess under the appropriate standard municipal liability for establishing the policy under which plaintiffs were disciplined.

Under Section 1983, a local government may be held liable for injuries suffered due to the “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Municipal liability “attaches only where the decisionmaker possesses final authority to establish municipal policy with respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986). Whether an entity possesses the requisite authority is a question of state law. Id. at 483, 106 S.Ct. 1292.

Here, the district court concluded that the City was not liable with respect to any of plaintiffs’ claims. The court’s holding rested on a city ordinance providing that the Chief of Police “serve[s] at the pleasure of the city manager” and is “under the direction and control of the city manager.” Liverman v. City of Petersburg, 106 F.Supp.3d 744, 769 (E.D. Va. 2015). Because Dixon does not have the final say over Department matters, the court indicated, plaintiffs failed to show that Chief Dixon “possesses the final authority required to establish municipal liability.” Id.

This analysis misapprehends the, nature of the requisite authority. We deal here not merely with an individual employment decision, see Crowley v. Prince George’s Cty., 890 F.2d 683, 687 (4th Cir. 1989), but a broad policy setting forth all the ground rules for employee speech. An entity has “final” authority to set this sort of policy when no further action is needed for the policy to take effect. The Supreme Court has expressly noted that “[a]uthority' to make municipal policy ... may be delegated by an official who possesses such authority” to another official. Pembaur, 475 U.S. at 483, 106 S.Ct. 1292. Here the fact that Dixon serves “under the direction and control of the city manager” does not necessarily establish that he lacked final authority to promulgate the policy whose validity has been successfully challenged herein. We must therefore remand to the district court to .undertake a more particularized inquiry into whether Chief Dixon possessed final authority to set policies on the parameters of speech on the part of those law enforcement officers under his command. If so, the City may also be held liable for the injuries that were caused by the applications of that policy.

V.

Running a police department is hard work. Its mission requires capable top-down leadership and a cohesion and esprit on the part of the officers under the chiefs command. And yet the difficulty of the task and the need for appropriate disciplinary measures to perform it still does not allow police departments to wall themselves off from public scrutiny and debate. That is what happened here. The sensitivity of all the well-known issues that surround every police department make such lack of transparency an unhealthy state of affairs. The advent of social media does not provide cover for the airing of purely personal grievances, but neither can it provide a pretext for shutting off meaningful discussion of larger public issues in this new public sphere.

To recapitulate: We hold that the Department’s social networking policy was unconstitutional and that the disciplinary measures taken against plaintiffs pursuant to .that policy were likewise impermissible. The patent overbreadth of the policy negates Chief Dixon’s qualified immunity defense. We find no merit, however, in plaintiffs’ retaliation claims, which involved investigations for alleged police misconduct independent of any issues of free speech. As to municipal liability, we remand for further proceedings in accordance with the foregoing directions. Remedial issues are also best left for remand, although in light of all that has transpired, reinstatement is not an equitable option. The calculation of attorneys’ fees must of course await the conclusion of proceedings on remand.

The judgment of the district court is accordingly affirmed in part, reversed in part, and remanded for further proceedings consistent with this decision,

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

       "Smh’’ is an acronym for “shaking my head.”


author: DUNCAN, Circuit Judge:

text:
    SCOTTSDALE CAPITAL ADVISORS CORPORATION; John J. Hurry; Timothy B. Diblasi; Darrel Michael Cruz, Plaintiffs-Appellants, v. FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., Defendant-Appellee. Securities and Exchange Commission, Amicus Supporting Appellee.
    No. 16-1497
    United States Court of Appeals, Fourth Circuit.
    Argued: October 28, 2016
    Decided: December 20, 2016

      ARGUED: Jonathan S. Franklin, NORTON ROSE FULBRIGHT US LLP, Washington, D.C., for Appellants. Timothy Wilson Mountz, FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., Washington, D.C., for Appellee. Martin V. Totaro, SECURITIES AND EXCHANGE COMMISSION, Washington, D.C., for Amicus Curiae. ON BRIEF: John W. Akin, NORTON ROSE FULBRIGHT US LLP, Washington, D.C., for Appellants. Terri L. Reicher, Office of General Counsel, FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., Washington, D.C., for Appellee. Anne K. Small, General Counsel, Sanket J. Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor, Dominick V. Freda, Senior Litigation Counsel, Josephine T. Morse, Office of the General Counsel, SECURITIES AND EXCHANGE COMMISSION, Washington, D.C., for Amicus Curiae.
    Before MOTZ, KING, and DUNCAN, Circuit Judges.

      . FINRA, a private not-for-profit corporation, is the successor organization to the National Association of Securities Dealers, Inc. ("NASD”). In 2007, NASD merged with the New York Stock Exchange's regulation committee to form FINRA. See Notice, 72 Fed. Reg. 42169, 42170 (Aug. 1, 2007). FINRA is the only RSA. FINRA is also a self-regulatory organization ("SRO”) by virtue of the fact that is an RSA. 15 U.S.C. § 78c(a)(26).

   Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge MOTZ and Judge KING joined.

DUNCAN, Circuit Judge:

Scottsdale Capital Advisors' Corporation and three of its current and former officers (collectively, “Scottsdale”) are respondents in an ongoing disciplinary proceeding before the Financial Industry Regulatory Authority, Inc. (“FINRA”) for allegedly selling unregistered securities in violation of Section 5 of the Securities Act of 1933, 15 U.S.C. § 77e (“Securities Act”) and FINRA Rule 2010. Before FINRA completed its proceedings, Scottsdale sought an injunction in federal district court, claiming the FINRA proceeding is unauthorized because FINRA may only discipline members for violations of the Securities Exchange Act of Í934, 15 U.S.C. § 78a, eb seq. (“Exchange Act”)’. The district court dismissed for lack of subject-matter jurisdiction and Scottsdale appeals. For the reasons that follow, we affirm.

I.

A.

Congress, through the Exchange Act, delegated the power to register national securities associations (“RSAs” or “associations”) to the Securities and Exchange Commission (“SEC”). Pursuant to this authority, the SEC registered FINRA as an RSA. FINRA, comprised of financial brokers and dealers, promulgates rules to enforce broker-dealer compliance with the Exchange Act, “the rules and regulations thereunder ... and the rules of the association.” 15 U.S.C. § 78o-3(b)(2).

Despite FINRA’s seemingly broad power, Congress mandated that the SEC exercise close supervision over the association. Before any FINRA rule goes into effect, the SEC must approve the rule and specifically determine that it is consistent with the purposes of the Exchange Act. Id. §§ 78o-3(b)(6), 78s(b)(2)(C). The SEC may also amend any existing rule to ensure it comports with the purposes and requirements of the Exchange Act. Id. § 78s (b)(1), (c).

B.

The Exchange Act sets out the process by which FINRA may initiate disciplinary proceedings, which is codified in FINRA’s Code of Procedure. 15 U.S.C. § 78o-3(h); FINRA Rule 9000, et seq. When FINRA believes a member has violated “any rule, regulation, or statutory provision, including the federal securities laws and the regulations thereunder,” FINRA Rule 9211, it begins a disciplinary proceeding by filing a complaint against the member. Id. 9212. If the respondent requests, FINRA will hold a hearing, after which a Hearing Panel will issue a written decision. Id. 9221, 9268. The respondent or FINRA may appeal the Hearing Panel’s decision to the National Adjudicatory Council (“NAC”), a FINRA committee. Id. 9311. An appeal to the NAC acts as a stay of the Hearing Panel’s decision. Id. 9311(b). The NAC may affirm, modify, reverse, dismiss, or remand the Hearing Panel’s decision. Id. 9349(a). The NAC’s decision (or the Hearing Panel’s decision if there was no appeal) is FINRA’s final action unless FINRA’s Board of Governors calls for review. Id. 9351.

Review of final FINRA action invokes the SEC’s role under the Exchange Act in overseeing FINRA’s authority to discipline members. FINRA must “promptly file notice” with the SEC when it .“imposes any final disciplinary sanction” on any member and FINRA members may appeal adverse final FINRA actions to the SEC for review. 15 U.S.C. § 78s(d)(1), (2). An appeal to the SEC “shall stay the effectiveness of any sanction, other than a bar or an expulsion.” FINRA Rule 9370(a). The SEC, upon its own motion or by appeal from the member, “shall” then review FINRA’s decision to ensure any rule allegedly violated was “applied in a manner[ ] consistent with the purposes” of the Exchange Act. 15 U.S.C. § 78s(e)(1)(A). The SEC can affirm, modify, or set aside FINRA’s decision or remand for further proceedings. Id. § 78s(e)(1). If, after SEC review, a party remains “aggrieved,” it “may obtain review” of the SEC’s final order in the appropriate court of appeals. Id. § 78y(a)(1); see also Bennett v. SEC, No. 15-2584, slip op. at 3 (argued Oct. 28, 2016). With this judicial-review scheme in mind, we turn to the FINRA proceeding at issue here.

C.

On May 15, 2015, FINRA initiated a disciplinary proceeding against Scottsdale, alleging it had liquidated over 74 million shares of unregistered stocks in violation of Section 5 of the Securities Act, 15 U.S.C. § 77e(a). According to FINRA’s complaint, Scottsdale’s violation of the Securities Act also violated FINRA Rule 2010, which requires members to “observe high standards of commercial honor and just and equitable principles of trade.” FINRA Rule 2010. Scottsdale filed a motion for summary disposition with the FINRA Hearing Panel, alleging, inter alia, that FINRA did not have jurisdiction to bring the proceeding because it can only charge violations of the Exchange Act, not the Securities Act. The Hearing Panel denied the motion and scheduled a hearing for June 13-24, 2016.

Scottsdale then filed for declaratory and injunctive relief in the United States District Court for the District of Maryland, alleging, as it had before FINRA, that the disciplinary proceeding was ultra vires. FINRA filed a motion to dismiss for lack of subject-matter jurisdiction and failure to state a claim.

On April 26, 2016, the district court held a hearing on the motion to dismiss. Assuming without deciding that Scottsdale had a cause of action under the Exchange Act, the district court nonetheless found it “clear” that “Congress intended to channel judicial review through th[e] comprehensive scheme” found in 15 U.S.C. §§ 78s and 78y. J.A. 176. “The question of whether the ... FINRA rules that are involved here are within their authority and appropriate,” the district court reasoned, is “clearly within” the review scheme outlined in the Exchange Act. J.A. 176-77. The district court relied on Thunder Basin Coal Company v. Reich, 510 U.S. 200, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994), to dismiss the complaint, finding it “beyond the subject matter jurisdiction” of the court to consider a challenge “to the ongoing disciplinary proceeding.” J.A. 178, Scottsdale appeals.

II.

A.

Scottsdale argues FINRA exceeded its authority by charging it with violations of the Securities Act and, therefore, the proceeding is ultra vires. FINRA counters that, as a -threshold matter, Scottsdale must first press its claim through the administrative process and then seek review in the appropriate court of appeals. We review a district court’s dismissal of a complaint for lack of subject-matter jurisdiction de novo. Nat’l Taxpayers Union v. U.S. Soc. Sec. Admin., 376 F.3d 239, 241 (4th Cir. 2004).

B.

Article III courts are “courts of limited jurisdiction,” possessing “only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). “Congress may, in its discretion, grant, withhold, or otherwise limit the jurisdiction of the lower federal courts.” Wade v. Blue, 369 F.3d 407, 410 (4th Cir. 2004). We are bound by those limitations unless they offend the Constitution. See Bowles v. Russell, 551 U.S. 205, 212, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

Notwithstanding the exclusive grant of jurisdiction to the courts of appeals in the Exchange Act, Scottsdale argues the district court had jurisdiction to consider its claim because FINRA lacked authority to initiate the disciplinary proceeding. Scottsdale believes it need not, as it describes it, exhaust administrative remedies before seeking review in this court for two reasons. First, Scottsdale claims the limited exception to jurisdiction-stripping recognized in Leedom v. Kyne, 358 U.S. 184, 79 S.Ct. 180, 3 L.Ed.2d 210 (1958), applies because FINRA is allegedly acting outside of its statutory authority. Alternatively, Scottsdale asserts its claim is not of the type Congress intended to remove from district court jurisdiction under the framework articulated in Thunder Basin. We discuss each claim in turn.

C.

1.

Scottsdale first argues the district court had jurisdiction under Leedom. Leedom involved a challenge to the National Labor Relations Board’s (“NLRB”) decision—in direct violation of the National Labor Relations Act (“NLRA”)—to include both professional and nonprofessional employees in a collective bargaining unit. 358 U.S. at 184-86, 79 S.Ct. 180. Before the Court, the NLRB conceded that it “had acted in excess of its powers and had thereby worked injury to the statutory rights” of the petitioners. Id. at 187, 79 S.Ct. 180. Even though the NLRA precluded district court jurisdiction of such an action, the Supreme Court held that the district court had jurisdiction because the NLRB had acted “in excess of its delegated powers and contrary to a specific prohibition in the Act.” Id. at 188, 79 S.Ct. 180 (emphasis added). In such a case, the Court reasoned, the suit is not to “review” as the term is used in the governing statute because the agency has acted without authority. Id.

Scottsdale contends that, similar to the action in Leedom, FINRA has exceeded its delegated authority, thereby removing the statutory bar to jurisdiction. However, such a reading extends Leedom beyond its “painstakingly delineated procedural boundaries.” Boire v. Greyhound Corp., 376 U.S. 473, 481, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964). Leedom relied on the presumption that when “Congress has given a ‘right’ ... it must be held that it intended that right to be enforced” and that intention supersedes congressional jurisdiction-stripping provisions. 358 U.S. at 191, 79 S.Ct. 180. If the district court in Leedom did not exercise jurisdiction, petitioners would have “no other means, within their control, ... to protect and enforce” a congressionally given right. Id. at 190, 79 S.Ct. 180. By contrast, Scottsdale does not identify a congressionally authorized right of action.

Leedom is also factually distinguishable in that FINRA does not concede that it acted in excess of its statutory authority. Before the district court and on appeal, FINRA maintains it has authority to sanction members for violations of all federal securities laws, including the Securities Act. Finally, and crucial to the decision in Leedom, Scottsdale has ultimate recourse to the federal courts through 15 U.S.C. § 78y. Leedom is a narrow exception, used only when “but for the general jurisdiction of the federal courts there would be no remedy” for a congressionally authorized private right of action. M

2.

In addition to being procedurally and factually dissimilar to Leedom, Scottsdale cannot satisfy this court’s two-pronged test to invoke the Leedom exception. To do so, a petitioner must make (1) a “strong and clear demonstration that a clear, specific and mandatory [statutory provision] has been violated,” Long Term Care Partners, LLC v. United States, 516 F.3d 225, 234 (4th Cir. 2008) (quoting Newport News Shipbuilding & Dry Dock Co. v. NLRB, 633 F.2d 1079, 1081 (4th Cir. 1980)), and (2) “the absence of federal court jurisdiction over an agency action ‘would wholly deprive’ the aggrieved party ‘of a meaningful and adequate means of vindicating its statutory rights.’” Id. at 233 (quoting Bd. of Governors of Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991)). After considering these criteria, we conclude that the Leedom exception does not apply.

First, FINRA has not violated a clear statutory prohibition. “When a party invokes Leedom as the basis for this court’s jurisdiction, we conduct a ‘cursory review of the merits’ to determine if the agency acted ‘clearly beyond the boundaries of its authority.’ ” Id. at 234 (quoting Champion Int’l Corp. v. EPA, 850 F.2d 182, 186 (4th Cir. 1988)). So long as the agency’s interpretation of the statute is “ ‘plausible’ ... we will find that it did not ‘violate a clear statutory mandate.’” Id. (quoting Hanauer v. Reich, 82 F.3d 1304, 1311 (4th Cir. 1996)).

Scottsdale points to numerous references in the Exchange Act that limit the authority of FINRA to discipline members for violations of “this chapter,” that is, the Exchange Act. See, e.g., 15 U.S.C. § 78o-3(b)(2). Scottsdale argues these provisions delimit FINRA’s authority to charge only violations of the Exchange Act. FINRA counters that the Exchange Act also authorizes it to enact its own rules and enforce compliance. See id, (“Such association is so organized ... to enforce compliance ... with the provisions of this chapter .... and the rules of the association.”). According to FINRA, if Congress did not intend for it to have authority to enact rules for securities violations beyond the Exchange Act, it would be unnecessary for the statute to also mention both the rules of the statute and the association (i.e., FINRA). FINRA further asserts that grounding violations of the Securities Act in its Rule 2010 is an exercise of its statutory authority to “promote just and equitable principles of trade [and] foster cooperation and coordination with persons engaged in regulating, clearing, settling ... and facilitating transactions in securities.” Id. § 78o-3(b)(6). We find this interpretation plausible. Long Term Care, 516 F.3d at 235. Moreover, the. Exchange Act provisions that Scottsdale cites do not clearly proscribe FINRA’s actions in the same way that the NLRB acted contrary to a direct prohibition of the NLRA in Leedom. Therefore, we conclude FINRA has not violated a clear statutory mandate.

Scottsdale also cannot satisfy the second criterion because the Exchange Act provides Scottsdale a “meaningful and adequate opportunity for judicial review” of its claims. MCorp, 502 U.S. at 43, 112 S.Ct. 459. Congress established a comprehensive system whereby Scottsdale can appeal an adverse FINRA decision to the SEC and a final adverse SEC decision in the appropriate court of appeals. 15 U.S.C. §§ 78s, 78y; see also Bennett, No. 15-2584, slip op. at 20-26.

Because FINRA’s interpretation of its authority to charge ;its members with violations of the Securities Act is plausible and the Exchange Act provides for meaningful judicial review, the Leedom exception does not apply. In so holding, we have not decided the “ultimate merits,” Long Term Care, 516 F.3d at 234-35, of FINRA’s position, but simply conclude that Scottsdale’s claim does not fall within the “narrow limits” of Leedom. Boire, 376 U.S. at 481, 84 S.Ct. 894.

D.

Scottsdale next argues that, even if Leedom does not apply, and notwithstanding the comprehensive judicial-review provisions, Congress did not intend to strip district courts of jurisdiction over this particular type of claim. When deciding whether a particular claim falls-outside of the congressionally enacted review scheme, we employ the two-step analysis outlined in Thunder Basin. First, we ask whether Congress’s intent to divest district courts of jurisdiction is “fairly discernible” from the statute’s text, structure, and purpose. Thunder Basin, 510 U.S. at 207, 114 S.Ct. 771 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351, 104 S.Ct. 2450, 81 L.Ed.2d 270 (1984); see also Bennett, No. 15-2584, slip op. at 19). Neither party disputes that it is “fairly discernible”, that Congress intended to preclude district court jurisdiction. See Appellant’s Br. at 27.

We therefore turn to step two of Thunder Basin and ask whether Scottsdale’s “claims are of the type Congress intended to be reviewed within this statutory structure.” 510 U.S. at 212, 114 S.Ct. 771. This claim-specific analysis considers three factors: (1) whether “adjudication of petitioner’s claims through the statutory-review provisions will violate due process by depriving petitioner of meaningful judicial review”; (2) whether the claims are “wholly collateral” to the statute’s review provisions; and (3) whether the claims-are “outside of the agency’s expertise.” Id. at 212-14, 114 S.Ct. 771. Applying each of these factors to Scottsdale’s claim, we agree with.the district court that the Exchange Act’s “administrative structure.was intended to preclude district court jurisdiction over petitioner’s claims and that, those claims can be meaningfully reviewed through that structure consistent with due process.” Id. at 218, 114 S.Ct. 771.

First, Scottsdale can obtain meaningful judicial review. The Exchange Act sets out a comprehensive review scheme through which Scottsdale could have ultimate judicial review in this court. 15 U.S.C. § 78y. Scottsdale contends post-proceeding judicial review is inadequate for two reasons: (1) forcing it to submit to an allegedly unauthorized proceeding before seeking Article III judicial review will cause irreparable harm; and (2) there will be no appeal to this court if it prevails. Neither contention has merit.

Scottsdale’s desire to “prevent the per se irreparable harm of being forced to submit to the orders of an organization acting beyond the limits of its statutory authority,” Appellant’s Br. at 28-29, conflicts with the long-standing principle that “the expense and annoyance of litigation is ‘part of the social burden of living under government.’” Bennett, slip op. at 22 (quoting FTC v. Standard Oil of Cal., 449 U.S. 232, 244, 101 S.Ct. 488, 66 L.Ed.2d 416 (1980)). The same is true of Scottsdale’s allegations of potential reputational harm. See Sampson v. Murray, 415 U.S. 61, 89, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974).

Scottsdale’s concern that it will be unable to press its claims if it prevails before FINRA also .lacks merit. Federal regulations “specifically prpvide[]” mechanisms by which Scottsdale could challenge FINRA Rule 2010 outside of the disciplinary proceeding. Standard Oil, 449 U.S. at 245, 101 S.Ct. 488. Scottsdale could petition the SEC—apart from any disciplinary action—to amend or repeal FINRA Rule 2010. See 17 C.F.R, § 201.192. The SEC’s decision on FINRA’s rule would be final agency action of which Scottsdale could then seek review in the appropriate court of appeals, 15 U.S.C. § 78y. And Scottsdale’s position is wholly, unlike that of the petitioners in Free Enterprise: Scottsdale is not required to “ ‘challenge a Board rule at random’ or ‘bet the farm’ by voluntarily incurring a sanction in order to trigger § 78y’s mechanism for administrative and judicial review." Bennett, No. 15-2584, slip op. at 10 (quoting Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 490, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010)).

Turning to the second Thunder Basin factor, Scottsdale’s claims are not wholly collateral to the Exchange Act. In Bennett, we explained that a claim is not wholly collateral when it is “ ‘the vehicle by which [petitioners] seek to reverse’ agency action.” Bennett, No. 15-2584, slip op. at 26 (quoting Elgin v. Dep’t of Treasury, 567 U.S. 1, 132 S.Ct 2126, 2139, 183 L.Ed.2d 1 (2012)), Scottsdale challenges “FINRA’s statutory authority to prosecute disciplinary actions premised on alleged violations of the Securities Act.” Appellant’s Br. at 30. As Scottsdale’s claim arises out of the proceeding against it and provides an affirmative defense, it is not wholly collateral to the statute.

Finally, Congress has expressly determined the SEC’s expertise is relevant to the claim at issue here. Scottsdale argues its claim, like the petitioners’ claim in Free Enterprise, is outside of the SEC’s “competence and expertise.” 561 U.S. at 491, 130 S.Ct. 3138, In Free Enterprise, the Supreme Court permitted a petitioner to bring a pre-enforcement constitutional challenge to the existence of the Public Company Accounting Oversight Board despite Congress’s intent to channel claims through .the statutory scheme laid out in § 78y. Id. at 490, 130 S.Ct. 3138. The Free Enterprise Court held that agency expertise was not required because the claims did “not require ‘technical considerations of [agency] policy,’ ” id. at 491, 130 S.Ct. 3138 (quoting Johnson v. Robinson, 415 U.S. 361, 373, 94 S.Ct. 1160, 39 L.Ed.2d 389 (1974)), but were “standard questions of administrative law, which the courts are at no disadvantage in answering.” Id.

Scottsdale’s argument that this claim lies outside of the agency’s expertise is belied by the text of the Exchange Act. Section 19 of the Exchange Act lays out a comprehensive oversight scheme whereby Congress gives the SEC the authority to supervise FINRA’s rules, including approving or modifying FINRA rules in any way the agency deems appropriate or necessary. 15 U.S.C. § 78s. As part of the SEC’s oversight of FINRA, Congress vested authority-in the SEC to review “a final disciplinary sanction imposed by” FINRA and determine whether its rules “were applied in a manner[] consistent with the purposes” of the Exchange Act. 15 U.S.C. § 78s(e)(1). Thus, Congress unambiguously channeled Scottsdale’s claim—whether FINRA has exceeded its authority in charging Scottsdale—to the SEC for determination in the first instance. Considering all three Thunder Basin factors, we conclude that the district court lacked jurisdiction over Scottsdale’s claim.

III.

When Congress provides a comprehensive review scheme our judicial review must comport with those statutory provisions unless doing so would violate the Constitution. Congress, through the Exchange Act, intended to channel objections to FINRA’s authority through the agency and the courts of appeals. In so doing, it is clear Congress sought to preclude federal district-court jurisdiction. Because Scottsdale can obtain meaningful judicial review of its claim in this court following the appeal process- outlined in the Exchange Act, we hold its challenge to FINRA’s authority is the type of claim Congress intended to be reviewed within the statutory scheme. Accordingly, the district court properly dismissed for lack of subject-matter jurisdiction. For these reasons, the judgment of the district court is

AFFIRMED.

      . FINRA Rules are not published in the Code of Federal Regulations but can be found at http://finra.complinet.coin/en/display/display.html?rbid=2403& element_id=607.

      . Scottsdale incorrectly frames the issue as one of exhaustion. We agree with the district court and the SEC as amicus that the district court is not the proper forum for Scottsdale's claim. Exhaustion is a temporal concern—the inquiry is when, not whether, a plaintiff may bring a claim. Requiring a plaintiff to first exhaust administrative remedies avoids the "premature interruption of the administrative process.” McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969). However, when Congress creates a statutory scheme that unambiguously vests judicial review of agency action in the courts of appeals, “those procedures ‘are to be exclusive’ ’’ unless a plaintiff can show its claims are not of the type Congress intended to limit. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010) (quoting Whitney Nat. Bank in Jefferson Parish v. Bank of New Orleans & Trust Co., 379 U.S. 411, 420, 85 S.Ct. 551, 13 L.Ed.2d 386 (1965)).

      . The NLRA provision at issue stated “the Board shall not (1) decide that any unit is appropriate for such purposes if such unit includes both professional employees and employees who are not professional employees unless a majority of such professional employees vote for inclusion in such unit.” Leedom, 358 U.S. at 185, 79 S.Ct. 180. The NLRB included professional and nonprofessional employees in the unit and refused to hold a vote to allow professional employees to agree to inclusion. Id. at 186, 79 S.Ct. 180.

      . We share the district court’s doubt that Scottsdale has identified a private right of action to bring this claim. See Alexander v. Sandoval, 532 U.S. 275, 293, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).

        . Further, the Supreme Court foreclosed Scottsdale’s expansive interpretation of Leedom in Board of Governors of the Federal Reserve System v. MCorp Financial, Inc., 502 U.S. 32, 112 S.Ct. 459, 116 L.Ed.2d 358 (1991). In MCorp, the Fifth Circuit exercised jurisdiction over a claim despite a jurisdiction-stripping provision because it (Continued) read Leedom to "authoriz[e] judicial review of any agency action that is alleged to have exceeded the agency’s statutory authority,” Id. at 43, 112 S.Ct. 459. The Supreme Court reversed, rejecting such a broad reading of Leedom because the statute at issue in MCorp—like the Exchange Act—provided “meaningful and adequate opportunity for judicial review.” Id. The Court further clarified that the lack of judicial review—and not the agency's alleged actions—was the "central” factor in Leedom. Id.

      . Although we style our application of Leedom in terms of agency interpretation, FINRA is not an agency. The SEC participated in this litigation as amicus but declined to take a position on the merits since Scottsdale raises the same claim in the ongoing FINRA proceedings, which the SEC will likely review. Amicus Br. at 4. However, the SEC has implicitly adopted FINRA’s interpretation of its authority to sanction members for violations of the Securities Act. See, e.g., In re ACAP Fin., Inc., Exchange Act Release No. 70046, 2013 WL 3864512, at *7 (July 26, 2013) (affirming FINRA’s decision to charge a member who sold unregistered securities in violation of the Securities Act with violating NASD Rule 2110, the predecessor rule to FINRA Rule 2010).