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 2021-06

The Nasdaq Stock Market LLC v. SEC (ORDER) ( 2021 )


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  •                       United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-1050                                                      September Term, 2020
SEC-86FR18596
SEC-Rel34-90610
Filed On: June 15, 2021
The Nasdaq Stock Market LLC, et al.,
Petitioners
v.
Securities and Exchange Commission,
Respondent
------------------------------
Consolidated with 21-1051, 21-1053,
21-1100, 21-1101, 21-1102
BEFORE:           Rogers, Millett, and Wilkins, Circuit Judges
ORDER
Upon consideration of the motion to dismiss Nos. 21-1050, 21-1051, and
21-1053, and the opposition thereto, it is
ORDERED that the motion to dismiss be granted. “A person adversely affected
by a rule of the [Securities and Exchange] Commission . . . may obtain review” by filing,
“within sixty days after the promulgation of the rule, a written petition requesting that the
rule be set aside.” 15 U.S.C. § 78y(b)(1) (emphasis added). This court has adopted a
“default rule” that “[i]f [an] agency does not define the term by regulation and if the
statute supports (or at least does not foreclose) the interpretation, ‘promulgation’ is
accorded its ‘ordinary meaning’—i.e., publication in the Federal Register.” Horsehead
Res. Dev. Co. v. EPA,
    130 F.3d 1090
    , 1093 (D.C. Cir. 1997). In addition, as we ruled in
Horsehead Resource Development,
    130 F.3d at 1092
    , and Western Union Telegraph
Co. v. FCC,
    773 F.2d 375
    , 377 (D.C. Cir. 1985), Congress’s formulation of the filing
time period as “within sixty days” creates a filing window, not a mere deadline. As a
result, jurisdiction is lacking over petitions that were filed too early—that is, before
promulgation in the Federal Register—as well as those filed more than sixty days after
promulgation in the Federal Register. Because the court has not previously applied this
rule to the Securities Exchange Act of 1934, 15 U.S.C. § 78a, et seq., in a published
order, this order is being published.
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 21-1050                                                September Term, 2020
Neither the Exchange Act nor the regulations promulgated thereunder define the
term “promulgation,” and the term therefore refers to publication in the Federal
Register. Here, the petitions for review in Nos. 21-1050, 21-1051, and 21-1053 were
filed before the rule in question was published in the Federal Register and thus before
the rule was promulgated. Accordingly, the court lacks jurisdiction over the petitions for
review filed in Nos. 21-1050, 21-1051, and 21-1053, and they must be dismissed. See
Horsehead Resource Development,
    130 F.3d at 1095
    .
The Clerk is directed to publish this order and to withhold issuance of the
mandate in Nos. 21-1050, 21-1051, and 21-1053 until seven days after resolution of
any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App. P.
41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:     /s/
Daniel J. Reidy
Deputy Clerk
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