NetCoalition v. SEC

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2012 Decided April 30, 2013
No. 10-1421
NETCOALITION AND SECURITIES INDUSTRY AND FINANCIAL
MARKETS ASSOCIATION,
PETITIONERS
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
NASDAQ OMX PHLX LLC, ET AL.,
INTERVENORS
Consolidated with 10-1422, 11-1001, 11-1065
On Petitions for Review of Orders of
the Securities & Exchange Commission
Carter G. Phillips argued the cause for the petitioners.
Dennis C. Hensley, Kevin J. Campion, Eric D. McArthur,
Roger D. Blanc, John R. Oller, Jeffrey B. Korn and Norman
P. Ostrove were on brief.
Mark R. Pennington, Assistant General Counsel,
Securities and Exchange Commission, argued the cause for
2
the respondent. Michael A. Conley, Deputy General Counsel,
and Jacob H. Stillman, Solicitor, were on brief. Luis de la
Torre, Senior Litigation Counsel, entered an appearance.
Eugene Scalia argued the cause for the intervenors. Amir
C. Tayrani, Ryan J. Watson and Douglas W. Henkin were on
brief.
Before: HENDERSON and ROGERS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge
HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: In 2010,
three securities exchanges, NASDAQ, NASDAQ OMX
PHLX (PHLX) and NYSE Arca—the intervenors in this
case—filed with the Securities Exchange Commission (SEC
or Commission) proposed changes to their fee-setting rules
for the acquisition of certain proprietary market data. Two
trade associations, NetCoalition and the Securities Industry
and Financial Markets Association (collectively the
petitioners), requested the Commission to suspend the rules
pursuant to its authority under section 19(b)(3)(C) of the
Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C.
§ 78s(b)(3)(C) (2006 & Supp. IV 2011), contending that they
are unlawful under NetCoalition v. SEC, 615 F.3d 525 (D.C.
Cir. 2010) (NetCoalition I). When the SEC failed to do so,
the petitioners sought review in this Court. Concluding that
the Congress’s recent overhaul of the Exchange Act dubbed
the Dodd-Frank Wall Street Reform and Consumer Protection
Act, Pub. L. No. 111-203, 124 Stat. 1376 (2010) (Dodd-Frank
Act), ousts us of jurisdiction, we dismiss the petitions.
3
I
In NetCoalition I, we reviewed a Commission order
approving intervenor NYSE Arca’s change to one of its
market data fee rules. Concluding that the order was arbitrary
and capricious because the Commission’s reasoning was
deficient, we vacated and remanded it to the Commission for
further approval proceedings. NetCoalition I, 615 F.3d at 544.
But the Congress intervened. Responding to the national
financial downturn affecting the securities markets in 2008,
the Congress enacted the Dodd-Frank Act. Before that Act,
the Exchange Act required the Commission to approve a
change in market data fee rules before such change became
effective. See 15 U.S.C. § 78s(b)(1) (2006). The Commission
approved such a change only if, after notice and comment, it
found that the “proposed rule change [was] consistent with
the requirements of the” Exchange Act. Id. § 78s(b)(2). The
Dodd-Frank Act, however, abandoned the approval
requirement. Changes to rules setting fees for market data
now “take effect upon filing with the Commission.” 15 U.S.C.
§ 78s(b)(3)(A) (2006 & Supp. IV 2011). The Commission
retains the authority to suspend a rule change “if it appears to
the Commission that such action is necessary or appropriate
to the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of” the Exchange
Act. Dodd-Frank Act § 916(c)(2)(A), 124 Stat. at 1835
(codified at 15 U.S.C. § 78s(b)(3)(C) (2006 & Supp. IV
2011)). A suspension triggers the requirement for notice-and-
comment approval proceedings. Id. § 916(c)(2)(B), 124 Stat.
at 1835 (codified at 15 U.S.C. § 78s(b)(3)(C) (2006 & Supp.
IV 2011)).
After our remand in NetCoalition I, the three intervenors
filed with the Commission changes to certain rules
establishing fees for various market data products. Before
4
proceeding to the specific rule changes at issue in this case,
we briefly lay out the relevant statutory framework.
A.
As national securities exchanges, the intervenors are self-
regulatory organizations (SROs). See 15 U.S.C. § 78c(a)(26)
(2006) (defining SROs). They therefore “have ‘a duty to
promulgate and enforce rules governing the conduct of [their]
members,’ under the oversight of the SEC.” Standard Inv.
Chartered, Inc. v. Nat’l Ass’n of Sec. Dealers, Inc., 560 F.3d
118, 119 (2d Cir. 2009) (quoting Barbara v. N.Y. Stock Exch.,
Inc., 99 F.3d 49, 51 (2d Cir. 1999)); see also Silver v. N.Y.
Stock Exch., 373 U.S. 341, 352–53 (1963) (discussing SRO’s
duty of self-regulation). Exchanges must file their rules with
the SEC and ensure compliance therewith. See 15 U.S.C.
§ 78f(b)(1) (2006). Section 6 of the Exchange Act requires
that the rules of national securities exchanges, inter alia,
“provide for the equitable allocation of reasonable dues, fees,
and other charges among its members and issuers and other
persons using its facilities”; “promote just and equitable
principles of trade”; and do not “permit unfair discrimination
between customers, issuers, brokers, or dealers” or “impose
any burden on competition that is not necessary or appropriate
in furtherance of the purposes of” the Exchange Act. 15
U.S.C. § 78f(b)(4), (5), (8) (2006).
Section 11A imposes additional requirements for rules
setting fees for the acquisition of market data. Added to the
Exchange Act in 1975, section 11A sets out “to facilitate the
establishment of a national market system for securities,”
Securities Acts Amendments of 1975, Pub. L. 94-29 § 7(a)(2),
89 Stat. 97, 112 (codified at 15 U.S.C. § 78k-1(a)(2) (2006)),
and, inter alia, “to link securities markets nation-wide in
order to distribute market data economically and equally and
to promote fair competition among all market participants.”
5
NetCoalition I, 615 F.3d at 528. To ensure the wide
availability and equitable dissemination of market data,
section 11A requires exclusive processors of proprietary
market data such as the intervenors, see 15 U.S.C.
§ 78c(a)(22)(B) (2006) (defining exclusive processors), to
distribute that data on terms that are “fair and reasonable” and
“not unreasonably discriminatory.” Id. § 78k-1(c)(1)(C), (D)
(2006).
Pursuant to its section 11A mandate, Bradford Nat’l
Clearing Corp. v. SEC, 590 F.2d 1085, 1094 (D.C. Cir. 1978),
the Commission has promulgated a series of regulations
ensuring the wide availability and dissemination of market
data. It has established two categories of data—core and non-
core. See Order Setting Aside Action by Delegated Authority
and Approving Proposed Rule Change Relating to NYSE
Arca Data, Release No. 34-59039, 73 Fed. Reg. 74,770,
74,779 (Dec. 9, 2008) (NYSE Arca Order). Core data, which
“form the heart of the national market system,” Regulation
NMS, Release No. 34-51808, 70 Fed. Reg. 37,496, 37,503
(June 29, 2005) (quotation marks omitted), is reported by the
exchanges to data processors, which then consolidate it into a
single stream of data for each NMS stock. 17 C.F.R.
§§ 242.601–.603. Because the SEC requires exchanges to
provide this data, the SEC has determined that fees charged
for core data “need to be tied to some type of cost-based
standard in order to preclude excessive profits if fees are too
high or underfunding or subsidization if fees are too low.”
Regulation of Market Information Fees and Revenues,
Release No. 34-42208, 64 Fed. Reg. 70,613, 70,627 (Dec. 17,
1999).
All other market data falls into the non-core category.
The SEC does not require exchanges to provide specific non-
core data but instead allows market forces to determine which
non-core data are provided. Regulation NMS, 70 Fed. Reg. at
6
37,567 (The Commission “will allow market forces, rather
than regulatory requirements, to determine what, if any,
additional quotations . . . are displayed to investors.”). The
requirements of sections 6 and 11A apply to fees charged for
core and non-core data alike. See NYSE Arca Order, 73 Fed.
Reg. at 74,779.
B.
The petitioners seek review of four changes to SRO rules
charging fees for non-core market data products. In No. 10-
1421 and No. 11-1065, PHLX filed changes to the rules
governing fees imposed for two of its options market data
products. Notice of Filing and Immediate Effectiveness of
Proposed Rule Change Relating to Fees for the PHOTO
Historical Data Product, Release No. 34-63351, 75 Fed. Reg.
73,140, 73,140 (Nov. 29, 2010) (PHOTO Historical
Proposal); Notice of Filing and Immediate Effectiveness of
Proposed Rule Change by NASDAQ OMX PHLX, Inc.
Relating to Market Data Feeds, Release No. 34-62887, 75
Fed. Reg. 57,092, 57,092 (Sept. 17, 2010) (PHOTO
Proposal). In No. 10-1422, NASDAQ filed a rule change
altering the fee structure for its TotalView market data
product. Notice of Filing and Immediate Effectiveness of
Proposed Rule Change to Modify Rule 7019, Release No. 34-
62907, 75 Fed. Reg. 57,314, 57,314–315 (Sept. 20, 2010)
(TotalView Proposal). And in No. 11-1001, NYSE Arca filed
a rule change with the SEC on November 1, 2010, pursuant to
which it charges fees for its ArcaBook market data product.
Notice of Filing and Immediate Effectiveness of Proposed
Rule Change by NYSE Arca, Inc. Relating to Fees for NYSE
Arca Depth-of-Book Data, Release No. 34-63291, 75 Fed
Reg. 70,311, 70,312 (Nov. 17, 2010) (ArcaBook Proposal).
Although the petitioners and the intervenors debate at
length the merits of the proposed rules changes, the SEC
7
declines to take a position on the merits, asserting instead that
this court lacks jurisdiction to review the petitions. Its refusal
to join the merits issue is well-taken. The SEC conducted no
proceeding and created no administrative record documenting
its decision-making process or explaining its reasoning. If we
have jurisdiction, therefore, well-established norms of judicial
review require us to remand the petitions to the Commission
to create a record and issue a judicially reviewable order. Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“If
the record before the agency does not support the agency
action, if the agency has not considered all relevant factors, or
if the reviewing court simply cannot evaluate the challenged
agency action on the basis of the record before it, the proper
course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.”); see also
Tex Tin Corp. v. EPA, 935 F.2d 1321, 1324 (D.C. Cir. 1991)
(per curiam) (“Where the agency has failed to exercise its
expertise or to explain the path that it has taken, we have no
choice but to remand for a reasoned explanation . . . .”). We
therefore turn to the critical question of jurisdiction.
II
A.
Both the SEC and the intervenors contend that we lack
authority to review the petitions. First, they argue that the
SEC’s failure to suspend is not a “final order” under the
Exchange Act’s direct review provision, 15 U.S.C.
§ 78y(a)(1). Second, they argue that even if the SEC’s failure
to suspend is a final order, the Congress precluded our review
thereof when it amended section 19(b)(3)(C) of the Exchange
Act. Third, they argue that even if we disagree with the
foregoing, the Congress has committed the question of when
to suspend a proposed rule change exclusively to the
Commission’s discretion such that the petitions are
8
nonjusticiable under the APA. See Hi-Tech Furnace Sys., Inc.
v. FCC, 224 F.3d 781, 788 (D.C. Cir. 2000) (5 U.S.C.
§ 701(a)(2) places narrow category of agency action
“committed to agency discretion by law” outside scope of
judicial review). Finally, the intervenors alone contend that
the petitioners failed to raise their objections to the TotalView
Proposal before the Commission and we therefore lack
jurisdiction to review that petition. See KPMG, LLP v. SEC,
289 F.3d 109, 117 (D.C. Cir. 2002) (Exchange Act section
25(c)(1)’s administrative exhaustion requirement is
jurisdictional).
The petitioners counter that we have jurisdiction. First,
they contend that in this Circuit, agency inaction having the
same effect on parties’ rights as a final order can constitute a
final order. Second, they concede that section 19(b)(3)(C)
removes from judicial review an SEC order suspending a rule
change but nonetheless argue that the ouster extends only to a
suspension order and not to a failure to suspend. Finally, they
argue that the suspension decision is mandatory under certain
circumstances such that the Congress has not placed the
suspension decision solely within the Commission’s
discretion.
“[A] federal court has leeway ‘to choose among threshold
grounds for denying audience to a case on the merits.’ ”
Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S.
422, 431 (2007) (quoting Rhurgas AG v. Marathon Oil Co.,
526 U.S. 574, 585 (1999)). Moreover, “[i]n our circuit it is a
venerable practice, and one frequently observed, to assume
arguendo the answer to one question in order to resolve a
given case by answering another and equally dispositive one.”
Earle v. District of Columbia, 707 F.3d 299, 304 (D.C. Cir.
2012) (quotation marks and alterations omitted; brackets
added). Assuming without deciding that the petitioners
correctly characterize the Commission’s failure to suspend as
9
a final order under section 25(a)(1), we nonetheless conclude
that amended section 19(b)(3)(C) withdraws our jurisdiction
to review such failure. We therefore decline to reach any
other justiciability or jurisdictional question presented by
these petitions. See Parker v. District of Columbia, 478 F.3d
370, 377 (D.C. Cir. 2007) (“[F]ederal courts may choose any
ground to deny jurisdiction . . . .), aff’d sub nom. District of
Columbia v. Heller, 554 U.S. 570 (2008).
B.
The Administrative Procedure Act (APA) provides the
standard of review for agency orders, see Wonsover v. SEC,
205 F.3d 408, 412–13 (D.C. Cir. 2000), but it “is not a
jurisdiction-conferring statute.” Trudeau v. FTC, 456 F.3d
178, 183 (D.C. Cir. 2006). Jurisdiction to review an agency
action requires “ ‘[t]wo things[:] The Constitution must have
given to the court the capacity to take it, and an act of
Congress must have supplied it.’ ” Micei Int’l v. Dep’t of
Commerce, 613 F.3d 1147, 1151 (D.C. Cir. 2010) (quoting
Mayor v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1868))
(citation, emphasis and brackets omitted). And unless the
Congress has, as here, expressly supplied the courts of
appeals with jurisdiction to review agency action directly, an
APA challenge falls within the general federal question
jurisdiction of the district court and must be brought there ab
initio. Bell v. New Jersey, 461 U.S. 773, 777 & n.3 (1983);
Int’l Bhd. of Teamsters v. Pena, 17 F.3d 1478, 1481 (D.C.
Cir. 1994).
Our constitutional jurisdiction is not in doubt. On behalf
of their members, the petitioners assert a financial injury
allegedly caused by the SEC’s inaction which could be
remediated if the SEC were to suspend the fee rules. Article
III thus poses no bar to our jurisdiction. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (laying
10
out three requirements of Article III standing); Hunt v. Wash.
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)
(setting out requirements of associational standing); see also
Miss. Valley Gas Co. v. FERC, 68 F.3d 503, 508 (D.C. Cir.
1995) (Article III standing plain if agency action affects rates
petitioner will pay). The question is whether the Congress
has empowered us to review the SEC’s inaction.
The Exchange Act contains a direct review provision, to
wit: “A person aggrieved by a final order of the Commission
entered pursuant to this chapter may obtain review of the
order in the United States Court of Appeals for the circuit in
which he resides or has his principal place of business, or for
the District of Columbia Circuit . . . .” 15 U.S.C. § 78y(a)(1)
(2006). An appellate court’s jurisdiction under a direct
review statute is strictly limited to the agency action(s)
included therein. See Nat’l Auto. Dealers Ass’n v. FTC, 670
F.3d 268, 270 (D.C. Cir. 2012); Public Citizen, Inc. v. Nat’l
Highway Traffic Safety Admin., 489 F.3d 1279, 1287 (D.C.
Cir. 2007); see also Bath County v. Amy, 80 U.S. (13 Wall.)
244, 247–48 (1871) (“It must be considered as settled that the
Circuit Courts of the United States . . . . are creatures of
statute, and they have only so much of the judicial power of
the United States as the acts of Congress have conferred upon
them.”). Accordingly, we have jurisdiction under section
25(a)(1) to review only “final order[s]” of the SEC. Indep.
Broker-Dealers’ Trade Ass’n v. SEC, 442 F.2d 132, 143 (D.C.
Cir.), cert. denied, 404 U.S. 828 (1971).
The jurisdictional question turns on our construction of
amended section 19(b)(3)(C). Although we accord no
deference to the executive branch in construing our
jurisdiction, Murphy Exploration & Prod. Co. v. U.S. Dep’t of
the Interior, 252 F.3d 473, 478 (D.C. Cir.), modified on denial
of petition for reh’g, 270 F.3d 957 (D.C. Cir. 2001), we bear
in mind the presumption favoring judicial review of agency
11
action. See Bowen v. Mich. Acad. of Family Physicians, 476
U.S. 667, 671–72 (1986); El Paso Natural Gas Co. v. United
States, 632 F.3d 1272, 1276 (D.C. Cir. 2011). Although the
Congress is authorized to preclude judicial review of agency
action, Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349
(1984), we assume that the Congress has not done so absent
“clear and convincing evidence of a contrary legislative
intent.” Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967)
(quotation marks omitted).
C.
We begin, as we must, with the text of the statute. See
Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541
U.S. 246, 252 (2004) (“Statutory construction must begin
with the language employed by Congress and the assumption
that the ordinary meaning of that language accurately
expresses the legislative purpose.” (quotation marks
omitted)); Estate of Cowart v. Nicklos Drilling Co., 505 U.S.
469, 475 (1992). Section 19(b)(3)(C), as amended by the
Dodd-Frank Act, provides in relevant part:
At any time within the 60-day period beginning on the
date of filing of such a proposed rule change in
accordance with the provisions of paragraph (1), the
Commission summarily may temporarily suspend the
change in the rules of the self-regulatory organization
made thereby, if it appears to the Commission that
such action is necessary or appropriate in the public
interest, for the protection of investors, or otherwise in
furtherance of the purposes of [the Exchange Act]. If
the Commission takes such action, the Commission
shall institute proceedings under paragraph (2)(B) to
determine whether the proposed rule should be
approved or disapproved. Commission action pursuant
to this subparagraph shall not affect the validity or
12
force of the rule change during the period it was in
effect and shall not be reviewable under section
[25(a)] nor deemed to be “final agency action” for
purposes of [the APA].
15 U.S.C. § 78s(b)(3)(C) (2006 & Supp. IV 2011). The
language makes clear that the Congress has withdrawn our
authority under section 25(a)(1) to review “Commission
action pursuant to this subparagraph” and the parties agree
that “Commission action” includes at least the summary and
temporary suspension of a rule change. They disagree,
however, on whether “Commission action” also includes the
failure to suspend.
The petitioners first argue that, because the SEC’s failure
to suspend constitutes a “final order” embodying the SEC’s
conclusion that none of the three conditions meriting
suspension is present, failure to suspend is reviewable under
section 25(a)(1). Second, although they contend that failure
to suspend constitutes a final order, they nonetheless argue
that it does not constitute “Commission action pursuant to this
subparagraph” because the references to “action” in the
provision address only a suspension and not a failure to
suspend. Deploying the ancient canon expressio unius est
exclusio alterius, the petitioners argue that section 19(b)(3)(C)
prohibits review of a suspension order only and therefore, by
negative implication, leaves review of a failure to suspend
unaffected.
Assuming arguendo that we agree with the first prong of
their argument, we reject their construction of “Commission
action pursuant to this subparagraph.” The two previous
references to “action” refer only to suspension because those
references are qualified by the adjective “such.” “Such”
modifies its subject by reference to what has already been
said. 17 OXFORD ENGLISH DICTIONARY 101–02 (2d ed. 1989)
13
(“Of the character, degree, or extent described, referred to, or
implied in what has been said.”). The only action earlier
described is “suspend,” so “such action” must refer to
suspension.
Moreover, the context in which the first two references to
“action” appear also confirms that they refer only to
suspension. See Textron Lycoming Reciprocating Engine
Div., Avco Corp. v. United Auto., Aerospace & Agric.
Implement Workers of Am., Int’l Union, 523 U.S. 653, 657
(1998) (“It is a ‘fundamental principle of statutory
construction (and, indeed, of language itself) that the meaning
of a word cannot be determined in isolation, but must be
drawn from the context in which it is used.’ ” (quoting Deal v.
United States, 508 U.S. 129, 132 (1993))). “[A]ction” first
appears in the clause: “the Commission summarily may
temporarily suspend the change in the rules . . . if it appears to
the Commission that such action is necessary or appropriate
in the public interest, for the protection of investors, or
otherwise in furtherance of the purposes of this chapter.” 15
U.S.C. § 78s(b)(3)(C) (2006 & Supp. IV 2011). It would
strain credulity to read this provision as setting forth anything
other than the circumstances under which the Commission
may suspend a rule change. Similarly, to read “action” in the
clause “[i]f the Commission takes such action, the
Commission shall institute proceedings under paragraph
(2)(B) to determine whether the proposed rule should be
approved or disapproved,” id., to refer both to suspension and
to failure to suspend would require the SEC to “institute
proceedings” for every proposed rule change, confounding the
Congress’s express intent that a rule become effective “upon
filing with the Commission.” Id. § 78s(b)(3)(A).
The final reference to “action” in the provision does not,
however, refer only to suspension. Granted, principles of
statutory construction require us to construe “identical words
14
used in different parts of the same statute . . . to have the same
meaning.” IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005). But
“the natural presumption that identical words used in different
parts of the same act are intended to have the same meaning is
not rigid and readily yields whenever there is such variation in
the connection in which the words are used as reasonably to
warrant the conclusion that they were employed in different
parts of the act with different intent.” Envtl. Def. v. Duke
Energy Corp., 549 U.S. 561, 574 (2007) (quotation marks and
ellipsis omitted). “[A]ction” appearing in the last sentence of
the provision, unlike the two earlier instances, is unmodified
by “such.” It is modified only by the requirement that the
action taken by the Commission be “pursuant to” section
19(b)(3)(C). To read “Commission action pursuant to this
subparagraph” as applying only to a suspension would be to
ignore the Congress’s decision to leave “Commission action”
otherwise unmodified in the last sentence of the
subparagraph. This we cannot do. See Russello v. United
States, 464 U.S. 16, 23 (1983) (“Where Congress includes
particular language in one section of a statute but omits it in
another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” (quotation marks and brackets
omitted)); see also Int’l Union, United Mine Workers of Am.
v. Mine Safety & Health Admin., 823 F.2d 608, 618 (D.C. Cir.
1987); 2A NORMAN J. SINGER & J.D. SHAMBIE SINGER,
SUTHERLAND STATUTORY CONSTRUCTION § 47.25, at 430–31
(7th ed. 2007). Instead, we assume that the Congress’s
decision not to modify “Commission action” so as to indicate
that the phrase is limited to suspension was intentional and
apply the jurisdictional bar of section 19(b)(3)(C) to any
Commission decision thereunder. See U.S. Postal Serv. v.
Postal Regulatory Comm’n, 599 F.3d 705, 709 (D.C. Cir.
2010) (where limitation appearing in one part of a statute is
15
not present in another, “its absence creates a negative
implication—that no limitation was intended”).
The petitioners raise two counterarguments. First, they
note the provision declares that “Commission action pursuant
to this subparagraph shall not affect the validity or force of the
rule change during the period it was in effect.” 15 U.S.C.
§ 78s(b)(3)(C) (2006 & Supp. IV 2011) (emphasis added).
Because a failure to suspend could not affect the validity of a
rule change, they argue that “Commission action pursuant to
this subparagraph” must refer only to suspension. Construing
“Commission action” to include suspension and failure to
suspend, they argue, would read the phrase “to mean one
thing in the first clause of the sentence and another in the
second.” Br. of Pet’rs 23. We disagree. The language
following “Commission action pursuant to this subparagraph”
governs all Commission action. That certain subsequent
language may apply only to certain types of actions and not to
others does not permit us to imply the very limitation the
Congress expressly excluded.
The petitioners next argue that “background principles of
administrative law” support the conclusion that “Commission
action pursuant to this subparagraph” refers only to
suspension. Id. at 24. They argue that under the APA finality
test, a suspension order under section 19(b)(3)(C) is “ ‘merely
tentative or interlocutory in nature’ ” and is therefore not
final. Id. (quoting Bennett v. Spear, 520 U.S. 154, 178
(1997)). A failure to suspend, however, represents the
Commission’s final “statement,” as it were, on the
permissibility of the rule change and is therefore subject to
review. But the petitioners’ “background principles,” even if
correct, do not apply here. “[A] final order need not
necessarily be the very last order.” Isbrandtsen Co. v. United
States, 211 F.2d 51, 55 (D.C. Cir.), cert. denied sub nom.
Japan-Atl. & Gulf Conference v. United States, 347 U.S. 99016
(1954). Courts often review agency orders issued pending
further proceedings especially where, as here, the agency’s
action/inaction could not be challenged in any subsequent
proceeding. 1 See, e.g., Sackett v. EPA, 132 S. Ct. 1367, 1372
(2012); Envtl. Def. Fund, Inc. v. Ruckelshaus, 439 F.2d 584,
589 n.8, 591 (D.C. Cir. 1971); Envtl. Def. Fund, Inc. v.
Hardin, 428 F.2d 1093, 1099 (D.C. Cir. 1970). Moreover, the
petitioners’ proposed reading of the statute would render the
review provisions of section 19(b)(3)(C) a mere superfluity,
simply repetitive of the review provisions of section 25(a)(1)
and the APA. We cannot adopt such an interpretation. See
Asiana Airlines v. FAA, 134 F.3d 393, 398 (D.C. Cir. 1998)
(“A cardinal principle of statutory interpretation requires us to
construe a statute ‘so that no provision is rendered inoperative
or superfluous, void or insignificant.’ ” (quoting C.F.
Commc’ns Corp. v. FCC, 128 F.3d 735, 739 (D.C. Cir.
1997))). 2
1
Moreover, if background principles have any relevance, they
cut against the petitioners’ argument. Although courts review
agency inaction, they do so only under limited circumstances. See
Norton v. S. Utah Wilderness Alliance, 542 U.S. 55, 62–64 (2004)
(under APA, agency inaction is subject to judicial review only if it
is discrete and agency was mandated to act). A statute authorizing
the review of agency inaction while withholding review of agency
action would be an odd duck indeed. Cf. Sprint Nextel Corp. v.
FCC, 508 F.3d 1129, 1131 (D.C. Cir. 2007) (petition was “deemed
granted” by virtue of agency inaction, which inaction was
unreviewable). The Congress could enact such a review scheme
but we will not infer such a scheme from this text.
2
Having determined that non-suspension must also be
“Commission action” under section 19(b)(3)(C), we easily conclude
that it is likewise action “pursuant to” section 19(b)(3)(C), to the
extent it constitutes reviewable agency action at all. The asserted
duty to suspend emanates from the statute and so too the conditions
17
The plain text of section 19(b)(3)(C) is, to us, “clear and
convincing evidence” of the Congress’s intent to preclude
review of a rule change at the filing stage. Block, 467 U.S. at350–51 (quotation marks omitted); Abbott Labs., 387 U.S. at
141 (quotation marks omitted); cf. Council for Urological
Interests v. Sebelius, 668 F.3d 704, 709 (D.C. Cir. 2011)
(Congress may use, inter alia, “specific language” to indicate
its intent to foreclose review). The language is “not
ambiguous in any sense relevant here; and this court simply is
not at liberty to displace, or to improve upon, the
jurisdictional choices of Congress.” Five Flags Pipe Line Co.
v. Dep’t of Transp., 854 F.2d 1438, 1441 (D.C. Cir. 1988).
Although the text of section 19(b)(3)(C) is clear, our
view is bolstered by the availability of judicial review down
the road. Consistent with the presumption of judicial review
of agency action, we have long allowed the availability of
other avenues of review to affect our assessment of our
jurisdiction. See, e.g., Amador Cnty., Cal. v. Salazar, 640 F.3d
373, 380 (D.C. Cir. 2011) (permitting judicial review where
“[n]othing in [the statute] actually creates an alternative
mechanism for compliance with the law”); Ukiah Adventist
Hosp. v. FTC, 981 F.2d 543, 550 (D.C. Cir. 1992) (denying
judicial review where such denial “will not foreclose all
judicial review” (emphasis in original)), cert. denied, 510
U.S. 825 (1993); NLRB Union v. FLRA, 834 F.2d 191, 197
(D.C. Cir. 1987) (permitting judicial review as “the only
remaining path to judicial consideration of the substantive
allegedly requiring suspension. The conclusion that a rule satisfies
the requirements of section 19(b)(3)(C) must therefore also emanate
from that statute. Indeed, the petitioners point us to no other
supporting authority therefor. A non-suspension decision is thus
“Commission action pursuant to” section 19(b)(3)(C) and we lack
authority to review it.
18
validity” of agency regulations). Section 19(b)(3)(C)
provides that “[a]ny proposed rule change of a self-regulatory
organization which has taken effect [upon filing] may be
enforced by such organization to the extent it is not
inconsistent with the provisions of this chapter, the rules and
regulations thereunder, and applicable Federal and State law.”
15 U.S.C. § 78s(b)(3)(C) (2006 & Supp. IV 2011). As the
language makes clear, SROs cannot enforce fee rules against
their members if those rules are “inconsistent” with the
requirements of the Exchange Act, including sections 6 and
11A. The language also suggests that judicial review, if
available, is to occur at the enforcement stage.
The SEC maintains that section 19(d) of the Exchange
Act provides for review at the enforcement stage. That
section authorizes the Commission, “on its own motion, or
upon application by any person aggrieved,” to review an SRO
action that denies any person “access to services offered by”
the SRO. 15 U.S.C. § 78s(d)(1), (2) (2006); see also Nat’l
Ass’n of Sec. Dealers, Inc. v. SEC, 431 F.3d 803, 806 (D.C.
Cir. 2005) (explaining section 19(d) review procedure).
Section 19(f), in relevant part, requires the Commission to
review an SRO rule challenged under section 19(d) to ensure
that it is “consistent with the purposes of this chapter” and
does not “impose[]any burden on competition not necessary
or appropriate in furtherance of the purposes of this chapter.”
15 U.S.C. § 78s(f) (2006); see also Fog Cutter Capital Group
Inc. v. SEC, 474 F.3d 822, 825 (D.C. Cir. 2007) (explaining
SEC standard of review under section 19(f)). The
Commission contends that the section 19(f) standard is
identical to that applied both in NetCoalition I and in ordinary
approval proceedings under section 19(b)(2)(C). Compare 15
U.S.C. § 78s(b)(2) (2006) (“The Commission shall approve a
proposed rule change of a self-regulatory organization if it
finds that such proposed rule change is consistent with the
19
requirements of this chapter and the rules and regulations
thereunder applicable to such organization.”), with 15 U.S.C.
§ 78s(b)(2)(C)(i) (Supp. IV 2011) (same). If the standard is
not met, the Commission must “by order, set aside the action
of the self-regulatory organization and . . . grant such person
access to services offered by the self-regulatory organization
or member thereof.” 15 U.S.C. § 78s(f) (2006).
The Commission contends that, together, sections 19(d)
and (f) permit “a party that is aggrieved by the fees at issue
[to] challenge them as not consistent with the Exchange Act,
including for not being ‘fair and reasonable.’ ” Br. of Resp’t
46. In support of its position, it cites In re Bloomberg, L.P.,
Release No. 34-49076, 2004 WL 67566 (Jan. 14, 2004). In
that Commission proceeding, a member of petitioner
NetCoalition—Bloomberg, L.P.—challenged an SRO rule
change limiting the member’s ability to display market data.
Id. at *2. The Commission agreed with Bloomberg, declaring
that the SRO failed to obtain Commission approval for the
rule as required by the Exchange Act and ordered that the rule
be set aside. Id. at *6.
Moreover, a party aggrieved by the Commission’s
disposition of a section 19(d) petition undoubtedly may obtain
judicial review of that disposition in the court of appeals. Katz
v. SEC, 647 F.3d 1156, 1161 (D.C. Cir. 2011); In re Series 7
Broker Qualification Exam Scoring Litig., 548 F.3d 110, 112
(D.C. Cir. 2008). Accordingly, if unreasonable fees constitute
a denial of “access to services” under section 19(d), we have
authority to review such fees. In light of In re Bloomberg and
the Commission’s brief in this court, we take the Commission
at its word, to wit, that it will make the section 19(d) process
available to parties seeking review of unreasonable fees
charged for market data, thereby opening the gate to our
review.
20
D.
Our analysis speaks of section 19(b)(3)(C)’s preclusion
of review as “jurisdictional.” The Supreme Court has “tried
in recent cases to bring some discipline to the use of [that]
term.” Henderson ex rel. Henderson v. Shinseki, 131 S. Ct.
1197, 1202 (2011). The description can be determinative
because “a court’s subject-matter jurisdiction cannot be
expanded to account for the parties’ litigation conduct; a
claim-processing rule, on the other hand, even if unalterable
on a party’s application, can nonetheless be forfeited if the
party asserting the rule waits too long to raise the point.”
Kontrick v. Ryan, 540 U.S. 443, 456 (2004). “Accordingly,
the term ‘jurisdictional’ properly applies only to
‘prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction)’
implicating that authority.” Reed Elsevier, Inc. v. Muchnick,
130 S. Ct. 1237, 1243 (2010) (quoting Kontrick, 540 U.S. at
455)).
We make clear that section 19(b)(3)(C) imposes a
jurisdictional bar to our review of the Commission’s decision
not to suspend a proposed rule change. We have long viewed
section 25(a)(1) as jurisdictional. Watts v. SEC, 482 F.3d 501,
505 (D.C. Cir. 2007); Kixmiller v. SEC, 492 F.2d 641, 643
(D.C. Cir. 1974) (“Our authority to directly review
Commission action springs solely from Section [25](a) of the
Securities Exchange Act of 1934, which confines our
jurisdiction to orders issued by the Commission.” (quotation
marks and alterations omitted)); see also Bowles v. Russell,
551 U.S. 205, 210–11 (2007) (emphasizing importance of
previous judicial construction in determining whether statute
is jurisdictional). Although section 19(b)(3)(C) does not
explicitly speak of “jurisdiction,” it does so impliedly by
placing both suspension and non-suspension outside the grant
of jurisdiction contained in section 25(a)(1). We are therefore
21
confident that section 19(b)(3)(C) “rank[s] . . . as
jurisdictional” under the “readily administrable bright line”
test announced in Arbaugh v. Y&H Corp., 546 U.S. 500, 516
(2006).
III
Finally, and alternatively, the petitioners ask us to
construe their petitions for review as petitions for mandamus
relief. We have authority under the All Writs Act, 28 U.S.C.
§ 1651(a), to issue a writ of mandamus “to effectuate or
prevent the frustration of orders previously issued.” Potomac
Elec. Power Co. v. ICC, 702 F.2d 1026, 1032 (D.C. Cir.
1983). We may do so either to protect our prospective
jurisdiction from unreasonable agency delay, Telecomm.
Research & Action Ctr. v. FCC, 750 F.2d 70, 76 (D.C. Cir.
1984), or “to correct any misconception of [our] mandate by a
lower court or administrative agency subject to [our]
authority,” Office of Consumers’ Counsel v. FERC, 826 F.2d
1136, 1140 (D.C. Cir. 1987) (per curiam). The petitioners ask
us to issue a writ because “[t]he Commission’s refusal to
suspend the rule changes flouts this Court’s mandate in
NetCoalition [I].” Br. of Pet’rs 38.
“The remedy of mandamus is reserved for extraordinary
circumstances in which the petitioner demonstrates that his
right to issuance of the writ is clear and indisputable . . . .”
Byrd v. Reno, 180 F.3d 298, 302 (D.C. Cir. 1999) (per
curiam). The petitioners cannot clear this high hurdle. We
held in NetCoalition I that there must be evidence that
competition will in fact constrain pricing for market data
before the Commission approves a fee charged for market
data premised on a competitive pricing model. See
NetCoalition I, 615 F.3d at 543–44. But the Congress has
since jettisoned the requirement that the Commission approve
the type of rule changes under review in NetCoalition I and,
22
thus, the NetCoalition I mandate no longer applies at this
stage of the SRO rulemaking process. That is not to say that
we accept the Commission’s contention that the holding in
NetCoalition I is moot. It remains a controlling statement of
the law as to what sections 6 and 11A of the Exchange Act
require of SRO fees. Because the Commission is no longer
required to approve an SRO’s fee rule before it becomes
effective, however, NetCoalition I is, to that extent,
inoperative. Mandamus does not lie when our precedent no
longer, at least in part, binds.
For the foregoing reasons we dismiss the petitions in
docket No. 10-1421, No. 10-1422, No. 11-1001 and No. 11-
1065.
So ordered.