Netcoalition v. Securities & Exchange Commission
404 U.S. App. D.C. 427
| D.C. Cir. | 2013Background
- In 2010 NASDAQ, NASDAQ OMX PHLX, and NYSE Area filed with the SEC proposed changes to their fee-setting rules for proprietary market data.
- Two trade associations, Net-Coalition and the Securities Industry and Financial Markets Association, sought to suspend the rules under 15 U.S.C. § 78s(b)(3)(C) arguing the changes were unlawful under NetCoalition I.
- The SEC did not suspend, and petitioners sought direct judicial review of the SEC’s inaction.
- The court held that post-Dodd-Frank, rule changes take effect upon filing, and Congress displaced preexisting mandatory SEC approval and its associated direct-review pathway for non-suspensions.
- The court concluded it lacked jurisdiction to review the SEC’s failure to suspend under § 78s(b)(3)(C) and dismissed the petitions.
- Petitioners also argued for mandamus relief, but the court declined, noting NetCoalition I’s mandate is moot to the extent the statute has been altered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non-suspension is reviewable under § 25(a)(1). | Net-Coalition argues failure to suspend is a final order reviewable under § 25(a)(1). | SEC argues § 19(b)(3)(C) withdraws review of non-suspension. | Section 19(b)(3)(C) precludes review of non-suspension. |
| Whether § 19(b)(3)(C) bars direct review under § 78y(a)(1). | Petitioners contend direct-review path exists for inaction. | SEC contends jurisdiction is withdrawn by § 19(b)(3)(C). | Direct-review is precluded; jurisdiction barred. |
| Whether the petition is reviewable as agency action or mandamus. | Requests mandamus to enforce NetCoalition I. | Argues mandamus improper where statute changed and review is unavailable. | mandamus denied; petitions dismissed due to jurisdictional bar. |
Key Cases Cited
- NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010) (reaffirmed jurisdictional constraints under NetCoalition I)
- Block v. Cmty. Nutrition Inst., 467 U.S. 340 (U.S. 1984) (Congress may foreclose judicial review in some circumstances)
- Abbott Labs. v. Gardner, 387 U.S. 136 (U.S. 1967) (presumption of judicial review against executive action)
- Arbaugh v. Y&H Corp., 546 U.S. 500 (U.S. 2006) (jurisdictional status depends on statutory text)
- Textron Lycoming Reciprocating Engine Div. v. Avco Corp., 523 U.S. 653 (U.S. 1998) (statutory contextual interpretation of terms varies by usage)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (agency action generally reviewable unless statutorily barred)
- Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (U.S. 1985) (agency must have a reasoned basis; review upon record)