Cranford Delano NEWELL, Petitioner, v. SECURITIES AND EXCHANGE COMMISSION, Respondent

812 F.2d 1259 Fed. Sec. L. Rep. P 93,179 Cranford Delano NEWELL, Petitioner, v. SECURITIES AND EXCHANGE COMMISSION, Respondent. No. 85-7676. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 8, 1986. Decided March 20, 1987. James C. Sargent, Michael J. Maloney, Mark S. Shipow, New York City, for petitioner. Daniel L. Goelzer, Eric Summergrad, Catherine T. Dixon, Washington, D.C., for respondent. Petition for Review of an Order of the Securities and Exchange Commission. Before GOODWIN, PREGERSON and HALL, Circuit Judges. GOODWIN, Circuit Judge: 1 Cranford D. Newell petitions for reversal of a Securities and Exchange Commission (SEC) Order denying his motion to dissolve or modify a 1982 Bar Order which prevents him from pursuing certain activities. The sole question is whether his petition for review was timely filed under Section 213(a) of the Investment Adviser's Act, 15 U.S.C. Sec. 80b-13(a), or Section 25(a)(1) of the Securities Exchange Act of 1934, 15 U.S.C. Sec. 78y(a)(1). It was untimely, and we dismiss for lack of subject matter jurisdiction. 2 Section 213(a) of the Investment Adviser's Act and Section 25(a)(1) of the Securities Exchange Act of 1934,…

Cranford D. Newell petitions for reversal of a Securities and Exchange Commission (SEC) Order denying his motion to dissolve or modify a 1982 Bar Order which prevents him from pursuing certain activities. The sole question is whether his petition for review was timely filed under Section 213(a) of the Investment Adviser’s Act, 15 U.S.C. § 80b-13(a), or Section 25(a)(1) of the Securities Exchange Act of 1934, 15 U.S.C. § 78y(a)(l). It was untimely, and we dismiss for lack of subject matter jurisdiction.

Section 213(a) of the Investment Adviser’s Act and Section 25(a)(1) of the Securities Exchange Act of 1934, each provide that a party aggrieved by a final order of the SEC may obtain review of the order in the United States Court of Appeals by filing an action “within sixty days after the entry” of the order. 1

Newell contends that we should interpret the date of “entry,” under the statutory authorities, as a date other than the caption date of the order. This contention has been raised and addressed in two cases.

In Lile v. SEC, 324 F.2d 772 (9th Cir.1963), we reviewed a motion to dismiss, based on 15 U.S.C. § 78y(a), for the untimely filing of a petition for review of a SEC…

Because I do not agree that the date typed in the caption is necessarily the date of entry under 15 U.S.C. § 80b-13(a) and 15 U.S.C. § 78y(a)(l), I would not find New-ell’s petition to be untimely and would reach the merits. For this reason, I respectfully dissent.

The statutes instructing that an aggrieved party has sixty days from the date of entry of an SEC order to petition for review of that order do not define the word “entry.” “Entry” under the statutes is purportedly defined, however, in 17 C.F.R. § 201.22 (k). That regulation states that the date of entry shall be the date reflected in the caption of the order and that the order will be available for inspection from the date of entry.

The problem with the majority’s decision is that it upholds the first part of the regulation and ignores the second. Octo *1262 ber 3, 1985, is the date typed in the caption of the SEC order in question. However, the SEC did not make the order public until October 8. Thus, the SEC did not comply with the second part of the regulation requiring that orders be made public from the date of entry.

Holding Newell to the date typed in the order’s caption but not holding the SEC to its…