New York Republican State Com v. SEC , 799 F.3d 1126 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 23, 2015 Decided August 25, 2015
No. 14-1194
NEW YORK REPUBLICAN STATE COMMITTEE AND TENNESSEE
REPUBLICAN PARTY,
PETITIONERS
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
Consolidated with 14-5242
On Petition For Review and Appeal of a Final Order
of the Securities and Exchange Commission
(No. 1:14-cv-01345)
Jason B. Torchinsky argued the cause for petitioners.
With him on the briefs were H. Christopher Bartolomucci,
Erin E. Murphy, and Brian J. Field.
Allen Dickerson was on the brief for amicus curiae
Financial Services Institute, Inc. in support of appellants.
Jeffrey A. Berger, Senior Litigation Counsel, Securities
and Exchange Commission, argued the cause for respondent.
With him on the brief were Michael A. Conley, Deputy
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General Counsel, Jacob H. Stillman, Solicitor, and Jacob R.
Loshin, Attorney. Thomas J. Karr, Assistant Attorney
General, entered an appearance.
Ronald A. Fein was on the brief for amicus curiae Free
Speech For People in support of respondent.
Muhammad Umair Khan was on the brief for amicus
curiae Letitia James, New York City Public Advocate, and
Trustee of the New York City Employees= Retirement System
in support of appellee/respondent.
J. Gerald Hebert, Lawrence M. Noble, Fred Wertheimer,
and Donald J. Simon were on the brief for amici curiae The
Campaign Legal Center and Democracy 21 in support of
respondent-appellee.
Before: TATEL and PILLARD, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: The New York Republican
State Committee and the Tennessee Republican Party (“the
plaintiffs”) sued the Securities and Exchange Commission to
invalidate a four-year-old rule, promulgated under the
Investment Advisers Act of 1940, regulating campaign
contributions by investment advisers. The district court
dismissed the suit for lack of subject matter jurisdiction,
concluding that courts of appeals have exclusive jurisdiction
to hear challenges to rules under the Act. The plaintiffs
appealed that decision and concurrently filed a petition asking
this court for direct review. We consolidated and expedited
the cases. We hold that courts of appeals have exclusive
jurisdiction to hear challenges to rules promulgated under the
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Investment Advisers Act. We therefore affirm the district
court’s decision. We also hold that such challenges must be
brought in this court within sixty days of promulgation of the
rule, and there are no grounds for an exception in this case:
The law governing where to file was clear during the
limitations period, and the length of time the statute affords
for pre-enforcement review is adequate. We therefore dismiss
the petition as time-barred.
I.
“The Investment Advisers Act of 1940 was the last in a
series of Acts designed to eliminate certain abuses in the
securities industry, abuses which were found to have
contributed to the stock market crash of 1929 and the
depression of the 1930’s.” SEC v. Capital Gains Research
Bureau, Inc., 375 U.S. 180, 186 (1963). The Act is the
linchpin of the federal regulation of financial advisers and
money managers. In enacting the Investment Advisers Act,
“Congress intended . . . to establish federal fiduciary
standards for investment advisers.” Santa Fe Indus., Inc. v.
Green, 430 U.S. 462, 471 n.11 (1977); see also Transamerica
Mortg. Advisors Inc. v. Lewis, 444 U.S. 11, 16-17 (1979).
Most individuals and firms that provide paid advice about the
value of securities or the advisability of investing in,
purchasing, or selling them are considered to be investment
advisers subject to the standards of conduct set forth in the
Act. See 15 U.S.C. § 80b-2(a)(11).
Under the Act, the Commission has the authority to
promulgate “rules and regulations . . . reasonably designed to
prevent such acts, practices, and courses of business as are
fraudulent, deceptive, or manipulative.” Id. § 80b-6(4); see
also id. § 80b-11(a). Congress also provided for judicial
review of orders the Commission issues pursuant to the Act.
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According to the relevant provision, “[a]ny person or party
aggrieved by an order issued by the Commission” pursuant to
the Act “may obtain a review of such order in” an appropriate
court of appeals by filing a petition with that court “within
sixty days after the entry of such order.” Id. § 80b-13(a).
In 2010, the Commission promulgated a rule limiting
investment advisers’ campaign contributions to certain
government officials. Such contributions are not banned, but
they now come at a cost. If an investment adviser or certain
of its employees contributes to the political campaign of a
government official with the power to influence the adviser’s
hiring by a government client, the adviser must wait two years
before it may provide services for compensation to that
government client. See Political Contributions by Certain
Investment Advisers, 75 Fed. Reg. 41,018 (July 14, 2010)
(codified in part at 17 C.F.R. § 275.206(4)-5).
In August 2014, the plaintiffs sued the Commission in
federal district court seeking an order declaring that the rule,
as applied to federal campaign contributions, exceeds the
Commission’s statutory authority, violates the Administrative
Procedure Act, and violates the First Amendment. They also
sought an order enjoining the Commission from enforcing the
rule with respect to federal campaign contributions. The
district court dismissed the suit for lack of subject matter
jurisdiction. New York Republican State Comm. v. SEC, 70 F.
Supp. 3d 362, 364 (D.D.C. 2014). The plaintiffs appealed the
district court’s decision, and filed a parallel petition for
review of the rule directly in this court.
II.
The plaintiffs urge us either to reverse the decision of the
district court or to grant their petition and exercise
jurisdiction. First, they claim that the Investment Advisers
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Act’s review provision does not apply to their challenge
because the text of the provision contemplates only review of
the Commission’s orders and says nothing of its rules. In the
alternative, the plaintiffs argue that we should grant their
petition for review even though it was not timely filed. They
urge us to disregard the sixty day deadline in the Investment
Advisers Act’s review provision because, they contend, the
law governing where and when they were supposed to file
was so unclear that they were justified in filing late. Finally,
they maintain that the statute’s sixty-day period for mounting
challenges to rules is unlawfully short. To afford plaintiffs a
meaningful opportunity for pre-enforcement review, they
contend, we should either disregard the statute’s time
limitation or recognize residual jurisdiction to bring their
claims in the district court under the Administrative Procedure
Act.
For the reasons that follow, we affirm the order of the
district court and dismiss the petition. Precedent dictates the
outcome of this case. For nearly four decades, it has been
blackletter administrative law that, absent countervailing
indicia of congressional intent, statutory provisions for direct
review of orders encompass challenges to rules. Moreover, if
the plaintiffs were uncertain about where and when to file
their suit, our precedent gives precise instructions about what
to do. The proper course for the plaintiffs to protect their
rights was to file a petition with this court within sixty days of
the rule’s issuance, not to wait four years to test their claim.
There is no basis for excusing the plaintiffs’ failure timely to
petition this court for review. The plaintiffs’ final argument,
that Congress cannot place a sixty-day limit on access to
pre-enforcement relief, is similarly foreclosed.
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A.
According to the plaintiffs, they appropriately and timely
filed their suit in district court. They contend that the
Investment Advisers Act’s provision stating that parties
“aggrieved by an order issued by the Commission . . . may
obtain a review of such order in” an appropriate court of
appeals, 15 U.S.C. § 80b-13(a), does not apply to them
because it speaks only to review of “an order” and is silent
about challenges to rules. Therefore, they say, the statute
remitted them to filing in the district court under the
Administrative Procedure Act’s catch-all review provisions
authorizing judicial review of final agency action when no
other adequate relief is available. See 5 U.S.C. §§ 702-04.
Because the Administrative Procedure Act was their route to
review, the plaintiffs argue, they had six years rather than
sixty days to sue under the default federal statute of
limitations applicable to suits against the United States. See
28 U.S.C. § 2401. We reject that argument because
longstanding precedent dictates that the word “order” in the
Investment Advisers Act encompasses rules.
Our decision in Investment Company Institute v. Board of
Governors of the Federal Reserve System controls this case.
In Investment Company we explained that “the purposes
underlying” a provision in the Bank Holding Company Act of
1956, similar to the provision at issue in this case, would
“best be served if ‘order’ [were] interpreted to mean any
agency action capable of review on the basis of the
administrative record.” 551 F.2d 1270, 1278 (D.C. Cir.
1977). The review provision at issue in Investment Company
stated that “[a]ny party aggrieved by an order of the” Federal
Reserve Board could “obtain a review of such order in” an
appropriate court of appeals “within thirty days after the entry
of the Board’s order.” Id. at 1273 n.3 (quoting
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12 U.S.C. § 1848 (1970)). We held that the provision’s
reference to orders vested the courts of appeals with exclusive
jurisdiction to hear challenges to rules as well as orders. See
id. at 1278.
Investment Company resolved longstanding uncertainty
about the correct interpretation of statutes that provide for
direct review of orders, but not rules. Id. at 1272. The
Investment Company court confronted an unsettled legal
landscape. Courts facing various administrative actions with
distinct administrative records under diverse statutes had
arrived at inconsistent conclusions regarding whether
particular agency actions constituted “order[s]” for purposes
of their direct review provisions. Id. at 1276-78. The court
noted that the circuit in an earlier case, United Gas Pipe Line
Co. v. Fed. Power Comm’n, 181 F.2d 796 (D.C. Cir. 1950),
had attempted to create a presumption that orders did not
encompass rules. The Investment Company court concluded
that United Gas had been undermined by contrary circuit
precedent and was in tension with several decisions by the
Supreme Court that had read “order” in special-review
provisions to encompass rules. Investment Company, 551
F.2d at 1276 (citing United States v. Storer Broad. Co., 351
U.S. 192 (1956)); see also David P. Currie & Frank I.
Goodman, Judicial Review of Federal Administrative Action,
75 Colum. L. Rev. 1, 39-41 (1975).
The court thus concluded that United Gas was no longer
controlling law, and established the contrary presumption
that, absent contrary congressional intent, a statutory review
provision creating a right of direct judicial review in the court
of appeals of an administrative “order” authorizes such review
of any agency action that is otherwise susceptible of review
on the basis of the administrative record alone. Investment
Company, 551 F.2d at 1278. Courts of appeals should have
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exclusive jurisdiction in such circumstances, the court held, to
eliminate “unnecessary duplication and conflicting litigation,
as well as the confusion inherent in the prospect of different
records and standards of review.” Id. at 1279 (internal
quotation marks omitted).
The Investment Company court explained the many
sensible justifications for its holding. In rulemakings, in
which there is no need for judicial development of an
evidentiary record, there is no gain from vesting jurisdiction
in district courts. Id. at 1276-77. Direct review in the court of
appeals has the advantage of both eliminating the
“unnecessary delay and expense” attending litigation in two
courts and abolishing the “undesirable bifurcation of the
reviewing function between the district courts [for rules] and
the courts of appeals [for orders].” Id. at 1276. The court
also addressed the textual objection to interpreting “order” to
encompass rules by noting that “the word ‘order’ has several
frequently utilized meanings which vary in scope, and it is
therefore not surprising that different sections of the same
statute might use the word in different ways.” Id. at 1278.
That Investment Company presumption is now a tenet of
administrative practice and is hornbook administrative law.
See 3 Richard J. Pierce, Jr., Administrative Law
Treatise § 18.2, at 1682-83 (5th ed. 2010); 33 Charles Alan
Wright & Charles H. Koch, Federal Practice and
Procedure § 8299, at 34-35 (2006) (explaining that the
presumption expressed in Investment Company is “pretty
much settled” and “has remained unchanged” since its
adoption). Innumerable litigants have relied on it to
determine where and when to file challenges to agency rules
across a broad spectrum of statutes promulgated by numerous
agencies. We have, for example, applied it when reviewing
rules promulgated by the Securities and Exchange
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Commission, the Federal Aviation Administration, and the
Department of Transportation implementing statutes ranging
from the Securities Act to the National Parks Overflights Act.
See Nat’l Fed’n of Blind v. U.S. Dep’t of
Transp., --- F.Supp.3d ----, No. 14-CV-85, 2015 WL 349156,
at *3 (D.D.C. Jan. 28, 2015) (collecting cases); New York
Republican State Comm., 70 F. Supp. 3d at 371 (collecting
cases); Resp. Br. 19 n.5 (collecting cases).
We have even applied the presumption—that statutory
authorization of direct federal judicial review of agency
“order[s]” encompasses rules—to the Investment Advisers
Act. See Fin. Planning Ass’n v. SEC, 482 F.3d 481 (D.C. Cir.
2007); Goldstein v. SEC, 451 F.3d 873 (D.C. Cir. 2006). We
may not have remarked on the jurisdictional question in those
cases, but our willingness to exercise jurisdiction without
comment is consistent with the recognized controlling force
of Investment Company. Goldstein v. SEC is especially
pertinent here because, in that case, the plaintiffs
simultaneously sued in the district court and petitioned this
court for direct review, and cited to Investment Company in
their opening brief as the basis for our jurisdiction. See New
York Republican State Comm., 70 F. Supp. 3d at 371 & n.7
(discussing Goldstein). We exercised original appellate
jurisdiction and the parties voluntarily dismissed the district
court proceeding. Id. Thus, the plaintiffs’ argument that
Investment Company is a new rule, and is somehow narrow or
limited to its facts, is inconsistent with both practice and
precedent.
The presumption in Investment Company decides this
case. The Investment Advisers Act authorizes judicial review
in a provision closely analogous to the one examined in
Investment Company. Compare 12 U.S.C. § 1848 with
15 U.S.C. § 80b-13(a). Both statutory schemes authorize the
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agency to proceed by “order” or “regulation.”
12 U.S.C. § 1843(c)(8); 15 U.S.C. § 80b-11(a). Both provide
that any party “aggrieved by an order issued by the” agency
“may obtain review of such order” in an appropriate court of
appeals. 12 U.S.C. § 1848; 15 U.S.C. § 80b-13(a). The
plaintiffs have pointed to no evidence showing that Congress
intended to withdraw from the courts of appeals our
jurisdiction to hear challenges to rules promulgated under the
Act. We therefore have exclusive jurisdiction over this case.
The plaintiffs’ arguments against following Investment
Company here are not persuasive. Plaintiffs contend that, in
the decades since we decided Investment Company, our cases
have systematically eroded its foundations. They maintain
that our Administrative Procedure Act decisions have in other
contexts reasserted a distinction between “orders” and “rules”
that should govern our interpretation of special statutory
review provisions. The plaintiffs contend, for example, that
we should apply the “definitions” section of the
Administrative Procedure Act broadly to hold that the word
“order” in the Investment Advisers Act’s review provision
cannot mean “rule.” See 5 U.S.C § 551(5)-(7). We decline
that invitation for the reasons given in Investment Company
itself, which expressly considered the APA’s narrow
definition of “order” to mean a disposition “in a matter other
than rulemaking.” 551 F.2d at 1278. Our court explained that
the word “order” is a word of many meanings, and it makes
sense to read it broadly in the context of direct review
provisions unless a statute has separate review provisions for
“rules” and “orders.” The multi-purpose Administrative
Procedure Act’s definitions distinguishing between a “rule”
and an “order” are directed generally at that Act. They
expressly apply only to “this subchapter” (i.e. the
Administrative Procedure Act itself). See id. Those
general-purpose definitions are not a compelling reason to
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ignore this court’s precedent specific to direct appellate
review provisions in statutes like the Investment Advisers
Act, enacted before the Administrative Procedure Act, when
rulemaking was not yet a common method of agency decision
making. The adequacy-of-record and judicial-efficiency
rationales that animated our decision in Investment Company
remain persuasive today.
The plaintiffs point to three decisions that they believe
show that the Investment Company presumption is not
controlling, but each is materially distinct from this case. In
Watts v. SEC, we looked to the Administrative Procedure Act
to help us to determine whether an instruction from the
Commission to its employees not to respond to a testimonial
subpoena was an “order” for purposes of the direct-review
provision of the Exchange Act of 1934. 482 F.3d 501, 504-06
(D.C. Cir. 2007). The question in Watts was whether such an
instruction was reviewable agency action, or only “an
ordinary litigation decision.” Id.at 506. Use of the
Administrative Procedure Act there to determine whether the
agency acted in its sovereign lawmaking capacity or as a
litigant has no bearing on this case.
In National Mining Association v. Department of Labor,
the government argued no court could exercise
pre-enforcement review of regulations administering the
Black Lung Benefits Act. 292 F.3d 849, 856 (D.C. Cir. 2002)
(per curiam). We disagreed, holding that district courts could
exercise jurisdiction over such challenges under the
Administrative Procedure Act. Id. at 859. But the statutory
scheme in National Mining Association was structured very
differently from the one at issue in this case. The direct
review provision there did not encompass orders issued by the
agency, but rather a specific adjudicatory body within it—a
“Benefits Review Board”—that had no authority to issue
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rules. 33 U.S.C. § 921(c); see also 30 U.S.C. § 932(a), 936(a)
(vesting rulemaking authority in the Secretary of Labor). The
act made “rather clear” that “Congress used the term ‘order’
to refer to an adjudicatory compensation order, not the
promulgation of a regulation.” Nat’l Mining Ass’n, 292 F.3d
at 856-57 (citing 33 U.S.C. § 921(b), (e)).
The direct review provision in National Mining
Association was limited to a particular kind of order issued by
a particular kind of body within the agency and therefore did
not impliedly grant the court of appeals authority to review
the agency’s rules. We thus concluded that “Congress was
silent on how review of regulations was to be accomplished,”
id. at 856, and so held that the Administrative Procedure Act
provided the proper avenue to relief. National Mining treats
the Black Lung Benefits Act like a statute lacking any direct
review provision governing challenges to the actions of the
agency, rather than like a statute akin to the Investment
Advisers Act, in which Congress included such a provision
and the question is how broadly Congress intended that
provision to be read.
Lastly, in American Petroleum Institute v. SEC, we found
that Congress had evinced its intention to depart from the
Investment Company rule. 714 F.3d 1329 (D.C. Cir. 2013).
Congress had (1) amended the statute’s direct review
provision on multiple occasions in the years after Investment
Company, thereby indicating congressional interest in the
precise wording of its text, and (2) provided explicitly for
review of rules enacted pursuant to some parts of the statute
and not others. Id. at 1332-35. Those specific indicia of
intent to depart from Investment Company are absent from the
Investment Advisers Act.
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The plaintiffs also argue that Investment Company was
wrongly decided and therefore should be limited to its facts.
To the extent the plaintiffs ask that we overturn an earlier
decision because we disagree with it, that we cannot do. We
are obliged to follow the law of the circuit, see LaShawn A. v.
Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc), and
Investment Company is the law of the circuit. We are bound
to follow it.
To the extent the plaintiffs ask us not to overrule
Investment Company, but to read it narrowly based on what
they contend is its undesirability, we decline to do so. The
Supreme Court has tacitly approved of the practical course we
charted in Investment Company. Almost a decade later, the
Court announced an analogous presumption. See Florida
Power & Light Co. v. Lorion, 470 U.S. 729, 744-45 (1985).
The Court held that, absent a “firm indication” of a contrary
intention, when a direct review provision’s applicability to an
agency action is “ambiguous,” we presume that Congress
intended to locate jurisdiction in the courts of appeals. Id. at
737, 745; Nat’l Auto. Dealers Ass’n v. FTC, 670 F.3d 268,
270 (D.C. Cir. 2012). In so doing, the Court cited Investment
Company approvingly and echoed its logic. Lorion, 470 U.S.
at 742-45.
Finally, Investment Company’s interpretation of the word
“order” to encompass rules is not a strained one. That term is
ubiquitous in the law, and has meant somewhat different
things in widely varying contexts. The Investment Company
presumption reflects a pragmatic interpretation sensitive to
developments in administrative law that could not have been
foreseen by the Congress that enacted the Investment
Advisers Act. When Congress enacted the Act in 1940, the
courts generally declined to engage in pre-enforcement
review of agency rules because such challenges were thought
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unripe. Nicholas Bagley, The Puzzling Presumption of
Reviewability, 127 Harv. L. Rev. 1285, 1337-38 (2014).
Drafters of review provisions thus were not typically
considering those challenges.
In sum, Investment Company dictates the outcome of this
case. We therefore hold that the word “order” in the
Investment Advisers Act recognizes the exclusive jurisdiction
of the courts of appeals to hear challenges to rules
promulgated thereunder.
B.
Plaintiffs argue in the alternative that we should grant
their petition for direct review. The Investment Advisers Act
requires that challenges be brought within sixty days,
15 U.S.C. § 80b-13(a), but plaintiffs filed their petition four
years after the rule they oppose went into effect. Unless
plaintiffs can identify a reason to excuse their late filing, their
petition is time-barred.
We should excuse their untimely filing, plaintiffs
contend, because they lacked fair notice that they were
required to petition directly in this court, so were justifiably
unaware that they would be subject to the Investment
Advisers Act’s sixty-day limitations period rather than the
Administrative Procedure Act’s six-year period. Plaintiffs
cite no case in which we have excused an untimely filing for
lack of fair notice based on a party’s erroneous identification
of the relevant forum and limitations period.
Even if we construe plaintiffs’ argument as a request for
equitable tolling, they have not shown any ground entitling
them to such relief. As a threshold matter, in appropriate
circumstances the review provision in the Investment
Advisers may be equitably tolled. We may equitably toll a
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statutory deadline unless Congress has shown its intent to
withdraw our jurisdiction once a deadline is missed. See
Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006);
Menominee Indian Tribe of Wisconsin v. United States, 614
F.3d 519, 523-25 (D.C. Cir. 2010). There is no evidence that
Congress sought to treat the sixty-day deadline in the
Investment Advisers Act as a jurisdictional bar. The deadline
is thus capable of equitable tolling.
But there is no basis for equitable tolling in this case.
Equitable tolling is available to a party “only if he shows ‘(1)
that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way’ and
prevented timely filing.” Holland v. Florida, 560 U.S. 631,
649 (2010). The plaintiffs have not shown that they were
diligent or faced an extraordinary obstacle to filing their
claims. Investment Company explains that “[i]f any doubt as
to the proper forum exists, careful counsel should file suit in
both the court of appeals and the district court or . . . bring
suit only in the court of appeals.” 551 F.2d at 1280; see id. at
1282. Plaintiffs have not explained why they failed timely to
file such a protective petition, other than to assert that they
thought the controlling law was unclear. The Investment
Company presumption is not new and should not have caught
plaintiffs unawares. It is routinely cited in our cases and
explained in major treatises. See, e.g., Weaver v. Fed. Motor
Carrier Safety Admin., 744 F.3d 142, 147 (D.C. Cir. 2014)
(quoting Investment Company, 551 F.2d at 1277); 3 Pierce,
supra, § 18.2, at 1682-83; Wright & Koch, supra, § 8299, at
35. Legions of litigants have timely filed their petitions for
review of rules adopted by the Commission and other
agencies with similar direct-review provisions. A litigant’s
own “tactical mistakes” and “inauspicious legal judgments”
do not amount to an “extraordinary obstacle” sufficient to
warrant equitable tolling. Menominee Indian Tribe of
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Wisconsin v. United States, 764 F.3d 51, 58, 62 (D.C. Cir.
2014), cert. granted, No. 14-510, 2015 WL 2473530 (U.S.
June 30, 2015). We hold that the plaintiffs’ petition is
time-barred.
C.
The plaintiffs’ final argument is that a sixty-day deadline
for bringing pre-enforcement challenges to agency rules is
either unconstitutional or of sufficiently doubtful
constitutionality as to demand a saving construction. They
argue that we should either (1) exercise jurisdiction and
disregard the sixty-day period for filing petitions in this court
because it is too short to comport with due process, or (2)
hold that the district court has jurisdiction under the
Constitution or the Administrative Procedure Act because the
Investment Advisers Act’s review provision offers inadequate
relief.
The plaintiffs’ arguments are foreclosed on all fronts. To
the degree the plaintiffs argue that the Advisers Act’s
sixty-day deadline is so short it amounts to a facial denial of
due process, we are unpersuaded. A limitations period is only
too short if “the time allowed [to file a claim] is manifestly so
insufficient that the statute becomes a denial of justice.”
Wilson v. Iseminger, 185 U.S. 55, 63 (1902). That standard
can be applied only in the context of a concrete claim. See id.
Faced with typical pre-enforcement challenges to agency
action, we have on many occasions strictly enforced
congressionally-imposed short limitations periods across a
range of regulatory statutes. See, e.g., JEM Broad. Co. v.
FCC, 22 F.3d 320, 325-26 (D.C. Cir. 1994); Raton Gas
Transmission Co. v. FERC, 852 F.2d 612, 614-16 (D.C. Cir.
1988); Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905,
911-12 (D.C. Cir. 1985). We find no ground for holding that
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the Investment Advisers Act’s sixty-day period for seeking
judicial review violates the plaintiffs’ due process rights,
whether on its face or as applied here.
If we understand plaintiffs to press the narrower point
that the statutory time limitation unlawfully cuts off access to
pre-enforcement review of their First Amendment claim, we
still cannot agree. There is, to be sure, a strong presumption
of judicial review under the Administrative Procedure Act,
see Bowen v. Michigan Acad. of Family Physicians, 476 U.S.
667, 670 (1986), and the courts’ willingness to permit
pre-enforcement review is “at its peak” when claims are
rooted in the First Amendment, Unity08 v. FEC, 596 F.3d
861, 865 (D.C. Cir. 2010). We recognize the importance of
the right to bring pre-enforcement First Amendment claims.
For many decades, the courts have shown special solicitude to
pre-enforcement challenges brought under the First
Amendment, relaxing standing requirements and fashioning
doctrines, such as overbreadth and vagueness, meant to avoid
the chilling effects that come from unnecessarily expansive
proscriptions on speech. See Reno v. Am. Civil Liberties
Union, 521 U.S. 844, 870-74 (1997); Broadrick v. Oklahoma,
413 U.S. 601, 611-15 (1973); Martin Tractor Co. v. Fed.
Election Comm’n, 627 F.2d 375, 380-81 (D.C. Cir. 1980).
The Supreme Court has also warned that delay in decision of
First Amendment claims typically exacerbates speech-related
harm. See, e.g., Freedman v. State of Md., 380 U.S. 51, 57-59
(1965).
Congress did not, however, withdraw pre-enforcement
review in this case, but merely set a particular procedure and
time period in which to do so. The plaintiffs had access to
that procedure and did not take advantage of it. Agencies, no
less than private litigants, have interests in finality and
certainty. See JEM Broad. Co., 22 F.3d at 325. Finality of
18
regulations serves the public interest insofar as people cannot
reliably order their affairs in accordance with regulations that
remain for long periods under the cloud of categorical legal
attack. See Investment Company, 551 F.2d at 1280.
We also reject the plaintiffs’ argument that we should
locate a residuum of jurisdiction in the district courts to hear
their First Amendment claims. Our precedent dictates that the
existence of the special statutory review provision divests
district courts of jurisdiction to hear pre-enforcement
challenges, even of constitutional claims, unless the relief
provided by the statutory review provision is “totally
precluded” or “realistically inadequate.” See Coal River
Energy, LLC v. Jewell, 751 F.3d 659, 663-64 (D.C. Cir.
2014). Thus, unless the Investment Advisers Act’s review
provision is shown to be an unavailable or inadequate remedy
for the plaintiffs’ First Amendment challenges, it is the
exclusive mechanism by which such claims may be brought.
We have no basis here on which to conclude either that the
statutory review provision is an inadequate remedy or that the
application of its sixty-day limitations period in the
circumstances before us is so harsh as to operate as a denial of
justice. See Iseminger, 185 U.S. at 63; Coal River Energy,
751 F.3d at 664; see also Bowen v. Massachusetts, 487 U.S.
879, 901 (1988) (providing for APA review in district court
when Congress’s specific remedy is too “doubtful and
limited”).
Congress has provided an additional avenue to
pre-enforcement review of the plaintiffs’ First Amendment
claims. The Administrative Procedure Act gives “an
interested person the right to petition for the issuance,
amendment, or repeal of a rule.” 5 U.S.C. § 553(e). The
Commission similarly provides by regulation that “any
person” may petition for the amendment or repeal of any
19
Commission rule. 17 C.F.R. § 201.192(a). If the
Commission denies an individual’s petition, she may then
petition this court for review of the Commission’s decision to
deny the petition. See, e.g., Timpinaro v. SEC, 2 F.3d 453,
460-61 (D.C. Cir. 1993) (reviewing Commission’s denial of a
petition to repeal a rule under the Exchange Act). Thus, in
this case, the plaintiffs might still seek pre-enforcement
review after they have made their First Amendment case to
the Commission. They are not required to violate the
regulation and risk prosecution to test their First Amendment
rights.
We thus hold that the review provision in the Investment
Advisers Act provides adequate relief for constitutional and
nonconstitutional challenges to rules promulgated under the
Act, and therefore is the exclusive means for doing so.
***
For the foregoing reasons, we affirm the decision of the
district court and dismiss the petition for review.
So ordered.