§ 78y. — Court review of orders and rules.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC78y]
TITLE 15--COMMERCE AND TRADE
CHAPTER 2B--SECURITIES EXCHANGES
Sec. 78y. Court review of orders and rules
(a) Final Commission orders; persons aggrieved; petition; record;
findings; affirmance, modification, enforcement, or setting
aside of orders; remand to adduce additional evidence
(1) 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, by
filing in such court, within sixty days after the entry of the order, a
written petition requesting that the order be modified or set aside in
whole or in part.
(2) A copy of the petition shall be transmitted forthwith by the
clerk of the court to a member of the Commission or an officer
designated by the Commission for that purpose. Thereupon the Commission
shall file in the court the record on which the order complained of is
entered, as provided in section 2112 of title 28 and the Federal Rules
of Appellate Procedure.
(3) On the filing of the petition, the court has jurisdiction, which
becomes exclusive on the filing of the record, to affirm or modify and
enforce or to set aside the order in whole or in part.
(4) The findings of the Commission as to the facts, if supported by
substantial evidence, are conclusive.
(5) If either party applies to the court for leave to adduce
additional evidence and shows to the satisfaction of the court that the
additional evidence is material and that there was reasonable ground for
failure to adduce it before the Commission, the court may remand the
case to the Commission for further proceedings, in whatever manner and
on whatever conditions the court considers appropriate. If the case is
remanded to the Commission, it shall file in the court a supplemental
record containing any new evidence, any further or modified findings,
and any new order.
(b) Commission rules; persons adversely affected; petition; record;
affirmance, enforcement, or setting aside of rules; findings;
transfer of proceedings
(1) A person adversely affected by a rule of the Commission
promulgated pursuant to section 78f, 78i(h)(2), 78k, 78k-1, 78o(c)(5) or
(6), 78o-3, 78q, 78q-1, or 78s of this title may obtain review of this
rule 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, by filing in such court, within sixty days after the
promulgation of the rule, a written petition requesting that the rule be
set aside.
(2) A copy of the petition shall be transmitted forthwith by the
clerk of the court to a member of the Commission or an officer
designated for that purpose. Thereupon, the Commission shall file in the
court the rule under review and any documents referred to therein, the
Commission's notice of proposed rulemaking and any documents referred to
therein, all written submissions and the transcript of any oral
presentations in the rulemaking, factual information not included in the
foregoing that was considered by the Commission in the promulgation of
the rule or proffered by the Commission as pertinent to the rule, the
report of any advisory committee received or considered by the
Commission in the rulemaking, and any other materials prescribed by the
court.
(3) On the filing of the petition, the court has jurisdiction, which
becomes exclusive on the filing of the materials set forth in paragraph
(2) of this subsection, to affirm and enforce or to set aside the rule.
(4) The findings of the Commission as to the facts identified by the
Commission as the basis, in whole or in part, of the rule, if supported
by substantial evidence, are conclusive. The court shall affirm and
enforce the rule unless the Commission's action in promulgating the rule
is found to be arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law; contrary to constitutional right,
power, privilege, or immunity; in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right; or without
observance of procedure required by law.
(5) If proceedings have been instituted under this subsection in two
or more courts of appeals with respect to the same rule, the Commission
shall file the materials set forth in paragraph (2) of this subsection
in that court in which a proceeding was first instituted. The other
courts shall thereupon transfer all such proceedings to the court in
which the materials have been filed. For the convenience of the parties
in the interest of justice that court may thereafter transfer all the
proceedings to any other court of appeals.
(c) Objections not urged before Commission; stay of orders and rules;
transfer of enforcement or review proceedings
(1) No objection to an order or rule of the Commission, for which
review is sought under this section, may be considered by the court
unless it was urged before the Commission or there was reasonable ground
for failure to do so.
(2) The filing of a petition under this section does not operate as
a stay of the Commission's order or rule. Until the court's jurisdiction
becomes exclusive, the Commission may stay its order or rule pending
judicial review if it finds that justice so requires. After the filing
of a petition under this section, the court, on whatever conditions may
be required and to the extent necessary to prevent irreparable injury,
may issue all necessary and appropriate process to stay the order or
rule or to preserve status or rights pending its review; but
(notwithstanding section 705 of title 5) no such process may be issued
by the court before the filing of the record or the materials set forth
in subsection (b)(2) of this section unless: (A) the Commission has
denied a stay or failed to grant requested relief, (B) a reasonable
period has expired since the filing of an application for a stay without
a decision by the Commission, or (C) there was reasonable ground for
failure to apply to the Commission.
(3) When the same order or rule is the subject of one or more
petitions for review filed under this section and an action for
enforcement filed in a district court of the United States under section
78u(d) or (e) of this title, that court in which the petition or the
action is first filed has jurisdiction with respect to the order or rule
to the exclusion of any other court, and thereupon all such proceedings
shall be transferred to that court; but, for the convenience of the
parties in the interest of justice, that court may thereafter transfer
all the proceedings to any other court of appeals or district court of
the United States, whether or not a petition for review or an action for
enforcement was originally filed in the transferee court. The scope of
review by a district court under section 78u(d) or (e) of this title is
in all cases the same as by a court of appeals under this section.
(d) Other appropriate regulatory agencies
(1) For purposes of the preceding subsections of this section, the
term ``Commission'' includes the agencies enumerated in section
78c(a)(34) of this title insofar as such agencies are acting pursuant to
this chapter and the Secretary of the Treasury insofar as he is acting
pursuant to section 78o-5 of this title.
(2) For purposes of subsection (a)(4) of this section and section
706 of title 5, an order of the Commission pursuant to section 78s(a) of
this title denying registration to a clearing agency for which the
Commission is not the appropriate regulatory agency or pursuant to
section 78s(b) of this title disapproving a proposed rule change by such
a clearing agency shall be deemed to be an order of the appropriate
regulatory agency for such clearing agency insofar as such order was
entered by reason of a determination by such appropriate regulatory
agency pursuant to section 78s(a)(2)(C) or 78s(b)(4)(C) of this title
that such registration or proposed rule change would be inconsistent
with the safeguarding of securities or funds.
(June 6, 1934, ch. 404, title I, Sec. 25, 48 Stat. 901; June 7, 1934,
ch. 426, 48 Stat. 926; June 25, 1948, ch. 646, Sec. 32(a), 62 Stat. 991;
May 24, 1949, ch. 139, Sec. 127, 63 Stat. 107; Pub. L. 85-791, Sec. 10,
Aug. 28, 1958, 72 Stat. 945; Pub. L. 94-29, Sec. 20, June 4, 1975, 89
Stat. 158; Pub. L. 99-571, title I, Sec. 102(k), Oct. 28, 1986, 100
Stat. 3220; Pub. L. 101-432, Sec. 6(b), Oct. 16, 1990, 104 Stat. 975.)
References in Text
This chapter, referred to in subsecs. (a)(1) and (d)(1), was in the
original ``this title''. See References in Text note set out under
section 78a of this title.
The Federal Rules of Appellate Procedure, referred to in subsec.
(a)(2), are set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
Amendments
1990--Subsec. (b)(1). Pub. L. 101-432 inserted ``78i(h)(2),'' after
``section 78f,''.
1986--Subsec. (d)(1). Pub. L. 99-571 inserted ``and the Secretary of
the Treasury insofar as he is acting pursuant to section 78o-5 of this
title''.
1975--Subsec. (a). Pub. L. 94-29 revised existing provisions into
five numbered paragraphs.
Subsec. (b). Pub. L. 94-29 substituted provisions permitting persons
adversely affected by any rule promulgated by the Commission pursuant to
sections 78f, 78k, 78k-1, 78o(c)(5) or (6), 78o-3, 78q, 78q-1, or 78s of
this title to obtain direct review in an appropriate Court of Appeals
for provisions that commencement of proceedings under subsec. (a) shall
not, unless specifically ordered by the court, operate as a stay of the
Commission's order.
Subsecs. (c), (d). Pub. L. 94-29 added subsecs. (c) and (d).
1958--Subsec. (a). Pub. L. 85-791, in second sentence, substituted
``transmitted by the clerk of the court to'' for ``served upon'', struck
out ``certify and'' before ``file in the court'', struck out ``a
transcript of'' after ``file in the court'', and inserted ``as provided
in section 2112 of title 28'', and, in third sentence, substituted
``petition'' for ``transcript'', and ``jurisdiction, which upon the
filing of the record shall be exclusive'' for ``exclusive
jurisdiction''.
Change of Name
Act June 25, 1948, eff. Sept. 1, 1948, as amended by act May 24,
1949, substituted ``court of appeals'' for ``circuit court of appeals''.
Act June 7, 1934, substituted ``United States Court of Appeals for
the District of Columbia'' for ``Court of Appeals for District of
Columbia''.
Effective Date of 1986 Amendment
Amendment by Pub. L. 99-571 effective 270 days after Oct. 28, 1986,
see section 401 of Pub. L. 99-571, set out as an Effective Date note
under section 78o-5 of this title.
Effective Date of 1975 Amendment
Amendment by Pub. L. 94-29 effective June 4, 1975, see section 31(a)
of Pub. L. 94-29, set out as a note under section 78b of this title.
Transfer of Functions
For transfer of functions of Securities and Exchange Commission,
with certain exceptions, to Chairman of such Commission, see Reorg. Plan
No. 10 of 1950, Secs. 1, 2, eff. May 24, 1950, 15 F.R. 3175, 64 Stat.
1265, set out under section 78d of this title.
Section Referred to in Other Sections
This section is referred to in sections 78f, 78l, 78o, 78s, 78u-3,
78ccc, 7214 of this title.
