Casey Nelson v. SEC (PUBLIC REISSUED OPINION)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 11, 2024 Decided April 25, 2025

Reissued May 30, 2025

No. 22-1316

CASEY H. NELSON, (CLAIMANT NO. 4),

PETITIONER

v.

SECURITIES AND EXCHANGE COMMISSION,

RESPONDENT

On Petition for Review of a Final Order

of the Securities & Exchange Commission

Richard P. Gallena, appointed by the court, argued the

cause as amicus curiae in support of petitioner. On the briefs

were Anthony F. Shelley, Dawn E. Murphy-Johnson, and Surur

Fatema Yonce, appointed by the court.

John R. Rady, Appellate Counsel, U.S. Securities and

Exchange Commission, argued the cause for respondent. With

him on the briefs were Megan Barbero, General Counsel,

Michael A. Conley, Solicitor, and Stephen G. Yoder, Senior

Appellate Counsel.

2

Before: HENDERSON, MILLETT, and CHILDS, Circuit

Judges.

Opinion for the Court filed by Circuit Judge CHILDS.

Opinion concurring in the judgment by Circuit Judge

HENDERSON.

CHILDS, Circuit Judge: Casey Nelson petitioned for

review of an order of the Securities and Exchange Commission

allocating whistleblower awards related to a successful

enforcement action for securities law violations. Nelson

challenges the eligibility of a group of three other individuals

who received an award for their contribution to the

enforcement action.

This Court received Nelson’s petition for review seven

days after the statutory filing deadline, and therefore his

petition is untimely. Nevertheless, the statute does not bar

equitable tolling. Assuming that Nelson’s particular

circumstances warrant an equitable exception to the deadline,

we consider his petition on the merits. We conclude the

Commission’s order was not arbitrary and capricious and deny

the petition.

I.

A.

Following the 2008 financial crisis, Congress enacted the

Dodd-Frank Wall Street Reform and Consumer Protection Act

(Dodd-Frank) to promote stability in the U.S. financial system.

See Digit. Realty Tr., Inc. v. Somers, 583 U.S. 149, 155 (2018).

Dodd-Frank amended the Securities Exchange Act of 1934 (the

3

Exchange Act) to establish a new whistleblower program for

individuals or groups of individuals who report information

about securities law violations to the Commission. See 15

U.S.C. § 78u-6(a)(6), (b)(1).

Dodd-Frank instituted monetary awards to incentivize

reporting. To be eligible to receive a monetary award, a

whistleblower must “voluntarily provide[] original information

to the Commission that le[ads] to the successful enforcement

of [a] covered judicial or administrative action.” Id. § 78u-

6(b)(1). Original information “is derived from the independent

knowledge or analysis of a whistleblower[;]” is not “known to

the Commission from any other source, unless the

whistleblower is the original source of information[;]” and is

not “exclusively derived from an allegation made in a judicial

or administrative hearing, in a governmental report, hearing,

audit, or investigation or from the news media, unless the

whistleblower is a source of the information.” Id. § 78u-

6(a)(3).

Commission regulations further clarify what constitutes

original information by defining “independent knowledge” and

“independent analysis.” Independent knowledge is “factual

information in [the whistleblower’s] possession that is not

derived from publicly available sources.” 17 C.F.R.

§ 240.21F-4(b)(2). Independent analysis is the

whistleblower’s “own analysis”—meaning the

whistleblower’s “examination and evaluation of information

that may be publicly available, but which reveals information

that is not generally known or available to the public.” Id.

§ 240.21F-4(b)(3).

In certain circumstances, individuals are barred from

receiving awards if their claims are based on information

4

obtained in connection with audits. Under the auditor

exclusion, individuals are ineligible if they “gain[] the

information through the performance of an audit of financial

statements required under the securities laws” and if their

submissions are “contrary to” the reporting procedures set out

in the Exchange Act for auditors who uncover illegal acts while

conducting an audit. See 15 U.S.C. § 78u-6(c)(2)(C); id. § 78j-

1.

If multiple whistleblowers are eligible to receive an award

for a single enforcement action, the Commission determines

the amount each whistleblower receives. See 17 C.F.R.

§§ 240.21F-3(a), 240.21F-5(c). The Commission’s Claims

Review Staff (CRS) conducts an initial review of

whistleblower award claims and issues a preliminary

determination of which parties may be eligible, as well as the

appropriate award amount for each eligible party. Id.

§ 240.21F-10(d). A claimant may contest the CRS’s

preliminary determination by submitting a written response to

the Office of the Whistleblower “setting forth the grounds for

[the claimant’s] objection.” Id. § 240.21F-10(e). The

Commission then reviews the preliminary determination and

issues a final order. Id. § 240.21F-10(h). Under Section 21F(f)

of the Exchange Act, a claimant may seek judicial review of

“[a]ny . . . determination, except the determination of the

amount of an award” by filing a petition with the appropriate

court of appeals “not more than 30 days after the determination

is issued by the Commission.” 15 U.S.C. § 78u-6(f).

B.

Nelson’s petition stems from a successful enforcement

action against a company for securities law violations. In that

action, the Commission alleged that the company failed to

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disclose its process for reporting losses, effectively

understating its total losses. The company and the Commission

reached a settlement.

After the settlement was finalized, the Commission’s

Office of the Whistleblower posted a “Notice of Covered

Action” inviting claims for whistleblower awards. Nelson

submitted a claim based on his contributions to the action.

Three individuals (the Joint Claimants) also filed requests for

awards, which were considered together as a joint claim.

The CRS issued a preliminary determination

recommending that the Commission grant monetary awards to

Nelson and to the Joint Claimants. The Preliminary

Determination was informed by a declaration in the record

from one of the primary enforcement attorneys, Christopher W.

Ahart. The declaration detailed the Joint Claimants’ and

Nelson’s contributions to the action.

The CRS determined that the Joint Claimants presented

original information based on their independent knowledge and

independent analysis and that they were not ineligible under the

auditor exclusion. The CRS also determined that Nelson

presented original information based on his independent

analysis.

The Joint Claimants did not contest the Preliminary

Determination, but Nelson did. Nelson argued that he was the

sole eligible whistleblower who presented original information

to the Commission. He contended that the Joint Claimants

merely repackaged his original analysis, which he had

“float[ed]” in a research publication before the Joint Claimants

made their submission to the Commission. J.A. 120–22.

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Nelson did not identify the auditor exclusion in his objections

to the Preliminary Determination.

The Commission’s Final Order adopted the CRS’s

recommendation that both Nelson and the Joint Claimants were

eligible to receive awards. The Commission concluded that

Nelson provided original information that “significantly

contributed to the success” of the enforcement action. J.A. 255.

The Commission further concluded that the Joint Claimants

also provided original information, including by submitting

information that prompted Enforcement staff to look into new

conduct and by substantially assisting the staff during the

course of its investigation.

The Commission also rejected Nelson’s allegation that the

Joint Claimants merely repackaged his original analysis,

finding instead that the Joint Claimants’ submission contained

non-public information not included in the research

publication. To support the Commission’s Final Order, Ahart

submitted a supplemental declaration, clarifying that the Joint

Claimants provided internal documents to the Commission,

separate from the publicly available information.

C.

The Final Order issued on November 4, 2022. Under

Section 21F(f) of the Exchange Act, Nelson was required to

file his petition for review by December 5, 2022. See 15 U.S.C.

§ 78u-6(f); Fed. R. App. P. 26(a)(1)(C). Nelson submitted an

affidavit recounting his alleged attempts to file his petition on

that day.

Proceeding pro se, on the morning of December 5, Nelson

accessed the D.C. Circuit website to find out how to file his

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petition electronically. Nelson specifically reviewed the

guidance regarding filings by pro se parties. Even after reading

the guidance, he was unaware that pro se parties are required

to file petitions in paper unless granted permission to file

electronically via the Court’s Electronic Case Filing (ECF)

System.

Assuming he could file his petition electronically, Nelson

navigated to the Public Access to Court Electronic Records

(PACER) “Login Links” page. In connection with a separate

federal case in a district court, Nelson had previously created a

“Case Search Only” individual PACER account. That account

allowed Nelson to view docket materials, but it did not give

him permission to file documents electronically. On the Login

Links page, Nelson found instructions directing him to upgrade

his individual PACER account so that he could make filings

electronically. Nelson submitted a request to upgrade his

account and register as an electronic filer (E-filer). The

PACER system, however, rejected his request.

Having failed to register as an E-filer, Nelson then called

the telephone number listed on the D.C. Circuit’s website for

“Clerk’s Office General Information.” Nelson spoke to an

individual whom he understood to be employed by the Clerk’s

Office and asked why his request was rejected. According to

Nelson, the individual informed him that as a pro se petitioner

he was required to submit filings in paper. Because Nelson was

in Dallas, Texas, at the time, he was unable to personally

deliver his petition to the Clerk’s Office in Washington, D.C.

Nelson claims that the individual suggested that Nelson could

send his petition by mail to the Clerk’s Office. On the

afternoon of December 5, Nelson mailed his petition. The

Clerk’s Office received Nelson’s petition on December 12,

2022.

8

The Commission moved to dismiss Nelson’s petition as

untimely, and Nelson moved for summary reversal of the Final

Order. A special panel of this Court denied Nelson’s motion

and referred the Commission’s motion to the merits panel. The

special panel appointed counsel as amicus curiae to present

arguments in favor of Nelson’s position and instructed the

parties to address whether equitable tolling of a statutory

deadline is a threshold issue that can be resolved prior to a

finding of jurisdiction.1

II.

We first consider whether Nelson’s petition is timely. The

Clerk of Court received the petition seven days after the

statutory deadline. Nelson contends that, under the Federal

Rules of Appellate Procedure (FRAP), we must accept his

petition as timely. Nelson’s argument is unavailing.

The Federal Rules afford pro se petitioners some

solicitude when making filings before a court. Unlike seasoned

attorneys, pro se petitioners may be unfamiliar with the details

of a given court’s requirements of form and process.

Accordingly, “[p]ro se litigants are allowed more latitude than

litigants represented by counsel to correct defects in service of

process and pleadings.” Moore v. Agency for Int’l Dev., 994

F.2d 874, 876 (D.C. Cir. 1993).

Nonetheless, the Federal Rules balance the consideration

extended to pro se petitioners with fairness to all parties and

1

This Court appointed Anthony F. Shelley as amicus curiae to argue

in support of Nelson’s position in this case. He and his colleagues

have well discharged their duty, and the Court is grateful for their

work.

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the need for effective management of court dockets. This

balance is reflected in FRAP 25’s approach to electronic filings

by pro se petitioners. FRAP 25(a)(2) permits a pro se

petitioner to file electronically, but “only if allowed by court

order or by local rule.” Fed. R. App. P. 25(a)(2)(B)(ii).

The requirement that pro se petitioners seek leave before

making electronic filings helps ensure that they are not placed

at a disadvantage. A court may need to consider whether

petitioners have the technological tools not just to submit but

also to receive filings electronically. This inquiry is

particularly important, as registration as an E-filer “constitutes

consent to electronic service of all documents.” D.C. Cir. R.

25(f).

Our circuit rules reflect FRAP 25(a)(2)’s approach to

electronic filings by pro se petitioners. Circuit Rule 25(c)

provides that “[a] party proceeding pro se must file documents

in paper form with the clerk and must be served with

documents in paper form unless the pro se party has been

permitted to register as an [E-]filer.” D.C. Cir. R. 25(c)(1).

Moreover, to register as an E-filer, a pro se petitioner “must

file a motion in this court.” D.C. Cir. R. 25(b)(2). Nelson did

not seek leave to file electronically, as required by FRAP

25(a)(2) and Circuit Rule 25.2

2

Circuit Rules provide an alternative for pro se litigants who have

not received leave to file electronically but need to make an

emergency filing. Pursuant to Circuit Rule 25(g), “In emergencies

or other compelling circumstances . . . the [Clerk of Court] may

authorize that papers be filed with the court through facsimile

transmission or email.” D.C. Cir. R. 25(g). Petitioners may do so

10

Despite Nelson’s argument to the contrary, Circuit Rule

25(c)’s requirement that pro se petitioners seek leave to file

electronically does not run afoul of FRAP 47. FRAP 47

stipulates that “[a] local rule imposing a requirement of form

must not be enforced in a manner that causes a party to lose

rights because of a nonwillful failure to comply with the

requirement.” Fed. R. App. P. 47(a)(2). Nelson contends that

enforcement of Circuit Rule 25(c) would lead to a deprivation

of his right to file a petition. But Circuit Rule 25(c) does not

impose a mere “requirement of form” on the petition. It

establishes a separate, threshold step at which a party must file

a motion and the court must make a determination that

electronic filing is appropriate. Nelson cannot, therefore,

invoke FRAP 47 to limit Circuit Rule 25(c).

Nelson further contends that even if his mailed petition

was not timely, he did make a timely electronic filing—his

request to become an E-filer—which the electronic case filing

system was required to accept. As Nelson points out, “the

electronic case filing system is . . . a substitute for the clerk of

the court.” Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO,

548 F.3d 137, 142 (D.C. Cir. 2008). And under FRAP 25(a)(4),

“[t]he clerk must not refuse to accept for filing any paper

presented . . . solely because it is not presented in proper form

as required by [the FRAP] or by any local rule or practice.”

Fed. R. App. P. 25(a)(4). But Nelson did not attempt to make

a filing. Instead, he attempted to create an E-filer account. Cf.

Franklin v. McHugh, 804 F.3d 627, 632 (2d Cir. 2015) (“[A]

notice of appeal is not ‘filed’ . . . until counsel completes the

CM/ECF filing process in compliance with the applicable local

only if they have received prior permission from the Clerk of Court.

Id. Nelson did not ask for permission to make an emergency filing

under Circuit Rule 25(g).

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district court rules”). Neither the Clerk nor the electronic case

filing system “refuse[d] to accept the filing” for Nelson’s

petition on the basis that it was “not presented in proper form.”

Fed. R. App. P. 25(a)(4). The petition was never presented to

the Clerk or the electronic case filing system in any form prior

to the receipt of the mailed submission. Therefore, FRAP

25(a)(4) does not provide Nelson the relief he seeks.

III.

In the alternative, Nelson argues that if his petition is

untimely, we should equitably toll the statutory deadline.

“Equitable tolling effectively extends an otherwise discrete

limitations period set by Congress . . . . [I]t pauses the running

of, or ‘tolls,’ a statute of limitations when a litigant has pursued

his rights diligently but some extraordinary circumstance

prevents him from bringing a timely action.” Arellano v.

McDonough, 598 U.S. 1, 6 (2023) (internal quotation marks

and citations omitted). Nelson argues that the Exchange Act

does not bar equitable tolling and that his particular

circumstances warrant it. We agree that the statutory deadline

may be tolled but assume without deciding that Nelson is

entitled to equitable tolling.

A.

1.

To determine whether the Exchange Act bars equitable

tolling, we initially ask if the deadline is jurisdictional,

divesting the Court of its ability to consider an equitable

exception. See Bowles v. Russell, 551 U.S. 205, 214 (2007)

(jurisdictional requirements do not allow for equitable

exceptions); Menominee Indian Tribe of Wisc. v. United States,

12

614 F.3d 519, 524 (D.C. Cir. 2010) (a court “has no authority

to create equitable exceptions to jurisdictional requirements”).

We interpret a filing deadline “as jurisdictional only if

Congress clearly states that it is.” Harrow v. Dep’t of Def., 601

U.S. 480, 484 (2024) (internal quotation marks and citations

omitted).

Section 21F(f) provides in relevant part that “[a]ny

determination of an award” (with one exception not relevant

here) “may be appealed to the appropriate court of appeals of

the United States not more than 30 days after the determination

is issued by the Commission.” 15 U.S.C. § 78u-6(f).

Under the Supreme Court’s decision in Harrow, we

consider if the statute “mention[s]” appellate court

“jurisdiction, whether generally or over untimely claims.” 601

U.S. at 486. Like the statute in Harrow, which did not impose

a jurisdictional deadline, Section 21F(f) “describes how a

litigant can obtain judicial review of the [Commission’s] final

orders,” “directs those appeals” to the appropriate court of

appeals, and “sets a deadline.” Id. at 485. It makes no mention

of an appellate court’s jurisdiction. Nor does anything else in

the statutory text or its structure suggest the timeline is

jurisdictional. Section 21F(f) therefore does not impose a

jurisdictional deadline.3

3

We instructed the parties to brief whether we can address equitable

tolling before deciding if we have jurisdiction to hear the case. Both

parties agree that we may do so. Because Section 21F(f) is not a

jurisdictional requirement, we do not need to answer whether

equitable tolling can be addressed before jurisdiction.

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2.

We next determine whether equitable tolling is otherwise

unavailable. Not all non-jurisdictional statutory deadlines can

be equitably tolled. See Young v. SEC, 956 F.3d 650, 654–655

(D.C. Cir. 2020). The Commission argues that Section 21F(f)

operates as a “mandatory deadline to which equitable tolling

does not apply once an untimeliness objection is properly

raised.” Resp’t Br. 39. We are not persuaded.

“[N]onjurisdictional [timing rules] are presumptively

subject to equitable tolling.” Boechler P.C. v. Comm’r., 596

U.S. 199, 209 (2022); see Chung v. U.S. Dep’t of Justice, 333

F.3d 273, 276 (D.C. Cir. 2003) (“[I]t is reasonable to presume

the Congress, unless it said otherwise, expect[s] the

Government to face equitable tolling in litigation because

equitable tolling is a traditional feature of the procedural

landscape.”). That presumption reflects that Congress

“legislate[s] against a background of common-law

adjudicatory principles,” including equitable tolling. Lozano v.

Montoya Alvarez, 572 U.S. 1, 10–11 (2014) (alteration in

original) (quoting Astoria Fed. Sav. & Loan Assn. v. Solimino,

501 U.S. 104, 108 (1991)). Section 21F(f) does not require us

to depart from the presumption that equitable tolling is

available for non-jurisdictional deadlines.

The key question is whether there is “good reason to

believe that Congress did not want the equitable tolling

doctrine to apply” to Section 21F(f). United States v.

Brockamp, 519 U.S. 347, 350 (1997) (emphasis in original).

We have previously found that a similar non-jurisdictional

statutory deadline could be equitably tolled. See Myers v.

Comm’r., 928 F.3d 1025, 1036–37 (D.C. Cir. 2019). In Myers,

the relevant statute provided that whistleblower awards by the

14

Internal Revenue Service must “within 30 days . . . be appealed

to the Tax Court.” Id. We noted that neither the plain language

of the statute, nor the legislative or regulatory history indicated

that Congress barred equitable tolling. Id. at 1036–37.

Similarly, here, the Commission does not point to anything in

the statute or the legislative history that suggests equitable

tolling of Section 21F(f)’s deadline is unavailable.

Alternatively, the Commission claims that FRAP 26(b)(2)

displaces the presumption that equitable tolling is available.

FRAP 26(b) provides that a court “may not extend the time to

file . . . a petition to enjoin, set aside, suspend, modify, enforce,

or otherwise review an order of an administrative agency . . .

unless specifically authorized by law.” Fed R. App. P. 26(b)

The Commission contends that FRAP 26(b)(2) “prohibit[s]

courts from applying common law equitable-tolling principles

to petitions for review,” unless a statute “specifically

authorize[s] it.” Resp’t Br. 40. As we have previously

stressed, however, the presumption of equitable tolling applies

to deadlines pertaining to petitions for review. See N.Y.

Republican State Comm. v. SEC, 799 F.3d 1126, 1134 (D.C.

Cir. 2015) (equitable tolling available in petitions for review

“unless Congress has shown its intent” otherwise); Robinson v.

Dep’t of Homeland Sec. Off. of Insp. Gen., 71 F.4th 51, 57

(D.C. Cir. 2023).

The Commission’s attempted reliance on Nutraceutical

Corp. v. Lambert, 586 U.S. 188 (2019), is likewise misplaced.

In Nutraceutical, the Supreme Court found that filing deadlines

in the Federal Rules of Civil Procedure are not subject to

equitable tolling. Id. at 192–193. Here, however, the relevant

filing deadline is provided by a statute and not a Federal Rule,

and the Supreme Court has yet to extend this constraint on the

Federal Rules to statutory deadlines. See Fort Bend Cnty., Tex.

15

v. Davis, 587 U.S. 541, 549 n.5 (2019) (reserving a decision on

whether a “mandatory claim-processing” deadline in a statute

and not a Federal Rule is subject to equitable tolling

exceptions).

B.

As Section 21F(f)’s deadline may be tolled, we next ask

whether Nelson is entitled to equitable tolling in light of his

particular circumstances. “Generally, a litigant seeking

equitable tolling bears the burden of establishing two elements:

(1) that he has been pursuing his rights diligently, and (2) that

some extraordinary circumstance stood in his way.” Pace v.

DiGuglielmo, 544 U.S. 408, 418 (2005). Moreover, “equitable

tolling must be applied flexibly, case by case, without

retreating to ‘mechanical rules’ or ‘archaic rigidity.’”

Menominee Indian Tribe of Wisc. v. United States, 764 F.3d 51,

58 (D.C. Cir. 2014) (quoting Holland v. Florida, 560 U.S. 631,

649–50 (2010)).

Equitable tolling is not appropriate if “the circumstance

that stood in a litigant’s way [is] a product of that litigant’s own

misunderstanding of the law or tactical mistakes in litigation.”

Young, 956 F.3d at 655 (quoting Menominee Indian Tribe of

Wisc., 764 F.3d at 58). For example, “filing an action in a state

court or federal agency that clearly lacks jurisdiction over the

action does not toll the time for filing in federal court.” Id. at

656 (quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96

(1990)).

By his own accounting, Nelson primarily failed to file his

petition on time because he did not understand the D.C.

Circuit’s requirements for electronic filings by pro se

petitioners. Therefore, Nelson’s circumstances come close to

16

a “garden variety claim of excusable neglect,” which does not

warrant equitable tolling. Id.

But Nelson also raises factors that altogether could weigh

in favor of equitable tolling. Nelson contends that, proceeding

pro se, he diligently sought to file his petition. Once his request

to become an E-filer was rejected, he expeditiously sought to

preserve his rights by phoning the Clerk of Court and then

mailing a physical copy of his petition, which he could not

hand-deliver because he does not reside in the District of

Columbia.

Assuming without deciding that equitable tolling is

warranted here, Nelson’s petition fails on the merits because

the Commission did not act arbitrarily and capriciously.

IV.

A.

We have jurisdiction to review the Commission’s

determination of whether a claimant is eligible for a

whistleblower award. 15 U.S.C. § 78u-6(f). Pursuant to 15

U.S.C. § 78u-6(f), we review the Commission’s eligibility

determinations “in accordance with section 706” of the

Administrative Procedure Act, which requires us to set aside

an agency action if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2)(A). The Commission’s findings of fact are conclusive

if supported by substantial evidence. 15 U.S.C. § 78y(a)(4).

17

B.

Nelson contends that the Commission acted arbitrarily and

capriciously by concluding that the Joint Claimants were

eligible for an award. We disagree.

The Commission reasonably determined that the Joint

Claimants provided original information derived from their

independent knowledge and independent analysis, as required

by the statute and Commission regulations. Whistleblowers

have independent knowledge if they possess information that

is not “derived from publicly available sources.” 17 C.F.R.

§ 240.21F-4(b)(2). A whistleblower’s independent analysis

may examine information that is publicly available but must

“reveal[] information that is not generally known or available

to the public.” Id. § 240.21F-4(b)(3). The Commission

adequately explained that the Joint Claimants “provided new

information that caused the staff to inquire into new conduct as

part of its existing investigation” and substantially assisted the

staff during the course of the investigation, including by

“providing additional information and participating in

interviews with the staff.” J.A. 254.

Nelson primarily argues that the Joint Claimants’

submission did not reflect their own original information.

Rather, Nelson contends, the Joint Claimants’ submission was

entirely based on a research publication, which originated with

Nelson and was published about a week before the Joint

Claimants made their submission to the Commission.

The Commission reasonably addressed and rejected

Nelson’s argument in the Final Order. It determined that the

Joint Claimants’ submission contained certain non-public,

internal information regarding the company’s losses that was

18

not included in the research publication and that aided the

Commission in its investigation.

The evidence in the record supports the Commission’s

finding that the Joint Claimants helped close a gap in the

publicly available information regarding the company’s losses.

The research publication did not quantify certain losses

because the necessary information was unavailable. The Ahart

declarations indicate that the Joint Claimants provided

relevant, non-public material that helped the Commission

understand the losses that the research publication could not

quantify.

Finally, Nelson invokes the auditor exclusion, which bars

claimants from receiving awards based on material obtained

through an audit in certain circumstances. He argues that even

if the Joint Claimants provided certain information to the

Commission that was not included in the research publication,

that information was obtained through one claimant’s work in

connection with an audit and cannot support the Joint

Claimants’ eligibility.

Nelson’s argument is forfeited because he did not raise it

before the Commission, even though it was available to him at

the time.4 The Exchange Act makes clear that “[n]o objection

to an order or rule of the Commission, for which review is

sought under this section, may be considered by the court

4

The parties dispute which Commission rule implementing the

requirements of the auditor exclusion in Section 21F applies here—

Rule 21F-4(b)(4) or Rule 21F-8(c)(4). Regardless, Nelson forfeited

the argument because he did not raise the auditor exclusion when

challenging the Preliminary Determination before the Commission.

19

unless it was urged before the Commission or there was

reasonable ground for failure to do so.” 15 U.S.C. § 78y(c)(1).

Nelson failed to raise the auditor exclusion in his

objections to the Claims Review Staff’s Preliminary

Determination. Commission regulations direct Nelson to

“contest the Preliminary Determination made by the Claims

Review Staff by submitting a written response to the Office of

the Whistleblower setting forth the grounds for [his]

objection.” See 17 C.F.R. § 240.21F-10(e). It is this

submission of objections “contesting [the] Preliminary

Determination” that exhausts Nelson’s administrative remedies

before the Commission and enables him to “pursu[e] an

appeal” of a final order in court. See id. § 21F-10(f). The

objections thus put the Commission on notice of a claimant’s

issues with the staff’s preliminary determination and inform the

Commission in rendering a reviewable final order.

In Doe v. SEC, 28 F.4th 1306 (D.C. Cir. 2022), we looked

beyond the objections to a preliminary determination to

determine if an argument was adequately raised and preserved,

but we did so because the objections included a statement

explicitly incorporating the arguments made in an initial claim

filing. See id. at 1316. Nelson’s objections include no such

explicit incorporation.

Although Nelson now proceeds pro se before this Court

and we afford him solicitude in arguments properly before us,

Nelson appears to have been represented by counsel before the

Commission. Nelson’s objections to the Preliminary

Determination explicitly stated that the Commission could

follow up with “my attorney.” J.A. 130. When the

Commission issued its Final Order, it transmitted a copy of the

order to the attorney Nelson had identified, stating that it issued

20

“your client” a whistleblower award. J.A. 249. Accordingly,

we do not find it appropriate to extend solicitude to construing

the content of Nelson’s filings in the proceeding before the

Commission, where he had counsel to guide him.

V.

For the foregoing reasons, Nelson’s petition for review is

untimely, and assuming Nelson is entitled to equitable tolling,

his petition fails on the merits. Nelson’s petition for review is

therefore denied.

So ordered.

KAREN LECRAFT HENDERSON, Circuit Judge, concurring

in the judgment: My colleagues reach the right result—

denying Nelson’s petition for review on the merits—but, I

respectfully submit, only after three wrong turns. First,

Nelson’s petition was timely because he took every step he

could to submit his filing to the clerk of the court but it was

nevertheless rejected solely because it was not presented in

proper form. Second, if Nelson’s petition were in fact

untimely, he would not have been eligible for equitable tolling

because no extraordinary circumstance prevented him from

timely filing. Third, Nelson has not forfeited his auditor-

exclusion argument because he urged it before the SEC in his

award application. Even so, because the SEC did not act

arbitrarily or capriciously in its award decision, they correctly

deny Nelson’s petition for review.

A.

Under the Federal Rules of Appellate Procedure

(Appellate Rules), a pro se party “may file electronically only

if allowed by court order or by local rule.” Fed. R. App.

P. 25(a)(2)(B)(ii). As the majority observes, the requirement

that a party seek leave before filing electronically is intended

to “ensure that [he is] not placed at a disadvantage” if, for

example, he does not have the “technological tools” to file and

receive filings electronically. Maj. Op. 9.

The Rules Committee similarly explained in the context of

a parallel provision in the Federal Rules of Civil Procedure

(Civil Rules) that courts cannot yet assume that a pro se party

can take advantage of electronic filing. See Fed. R. Civ. P. 5(d)

advisory committee’s note to 2018 amendment (discussing

Fed. R. Civ. P. 5(d)(3)). The committee therefore admonished

that “[c]are should be taken to ensure that an order to file

electronically does not impede access to the court.” Id. To

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further the goal of ensuring access, Civil Rule 5(d)(4) then

provides that “[t]he clerk must not refuse to file a paper solely

because it is not in the form prescribed by these rules or by a

local rule or practice.”

The Appellate Rules have a parallel provision, requiring

that “[t]he clerk must not refuse to accept for filing any paper

presented for that purpose solely because it is not presented in

proper form as required by these rules or by any local rule or

practice.” Fed. R. App. P. 25(a)(4); see also id. 25(a)(2)(B)(iv)

(“A paper filed electronically is a written paper for purposes of

these rules.”). The “electronic case filing system is . . . a

substitute for the clerk of the court.” Royall v. Nat’l Ass’n of

Letter Carriers, 548 F.3d 137, 142 (D.C. Cir. 2008). Thus, the

electronic case filing (ECF) system must not refuse to accept

any filing solely because it is not presented in proper form.

Our circuit rules also provide that a pro se party “must file

documents in paper form” unless he has been permitted to

register as an ECF-filer. D.C. Cir. R. 25(c)(1). To obtain

permission to register as an ECF-filer, a pro se party “must file

a motion in this court.” Id. 25(b)(2). Here, Nelson tried to

timely file his petition online without having first filed such a

motion but his request to register as an ECF-filer was rejected.

In other words, the electronic system—the clerk’s substitute—

prevented him from taking any further steps toward submitting

his filing. But as we have explained, “a step forbidden by a

person standing at a counter is equally forbidden to an

automated agent that acts on the court’s behalf.” Royall, 548

F.3d at 142–43 (quoting Farzana K. v. .Ind. Dep’t of Educ., 473

F.3d 703, 707 (7th Cir. 2007)). The “computer’s reaction does

more to show the limits of some programmer’s imagination

than to render the suit untimely.” Farzana K., 473 F.3d at 707.

Instead, “electronic submission . . . during the filing period

3

constitutes timely filing even if the electronic case filing

system rejects the submission.” Royall, 548 F.3d at 143.

It elevates form over substance—precisely what the

Appellate Rules prohibit—to say that he never “presented” his

filing to the ECF system simply because he was barred from

proceeding at the registration rather than the submission stage.

Under that logic, although the clerk could not refuse to accept

papers at the counter of the clerk’s office, he could permissibly

stop a would-be filer at the courthouse steps and tell him he

could not enter the building and approach the counter because

the filing must be submitted electronically. See D.C. Cir. R.

25(a) (“Except as otherwise prescribed by Circuit rule or order

of the court, . . . all documents must be filed electronically

. . . .”). The Rules neither require nor permit such a curious

result.

Deeming Nelson’s petition timely also accords with

Appellate Rule 47(a)(2), which provides that “[a] local rule

imposing a requirement of form must not be enforced in a

manner that causes a party to lose rights because of a nonwillful

failure to comply with the requirement.” As my colleagues

point out, Circuit Rule 25(c) “establishes a separate, threshold

step at which a party must file a motion and the court must

make a determination that electronic filing is appropriate.”

Maj. Op. 10. True enough. But it also unambiguously imposes

a requirement of form—filing “in paper form”—that the

majority enforces in a manner that deprives Nelson of his right

to petition for relief because of his nonwillful failure to comply.

That is just what Appellate Rule 47(a)(2) is designed to

prevent.

B.

Having concluded that Nelson’s petition was untimely, the

majority next brushes past our precedent in SEC v. Young, 956

4

F.3d 650 (D.C. Cir. 2020). As we explained there, “a litigant

seeking equitable tolling bears the burden of establishing two

elements: (1) that he has been pursuing his rights diligently,

and (2) that some extraordinary circumstance stood in his

way.” Id. at 655 (quoting Pace v. DiGuglielmo, 544 U.S. 408,

418 (2005)). To qualify as extraordinary, “the circumstances

that caused a litigant’s delay must have been beyond its

control.” Id. (quoting Menominee Indian Tribe of Wis. v.

United States, 764 F.3d 51, 58 (D.C. Cir. 2014)). “The

circumstance that stood in a litigant’s way cannot be a product

of that litigant’s own misunderstanding of the law or tactical

mistakes in litigation.” Menominee Tribe, 764 F.3d at 58.

Additionally, “ignorance of the law,” including that

attributable to pro se status, is “not an appropriate basis for

equitable tolling.” Young, 956 F.3d at 656. And “statements

made by the clerk’s office staff,” including failing to correct a

party’s misunderstanding, are not enough to show

extraordinary circumstances unless they are affirmatively

misleading. See id. at 657.

On these facts, Nelson would not be eligible for equitable

tolling. He filed late—in the majority’s view—due to his own

misunderstanding of federal and local rules about the form in

which he had to file his petition. That “mistake is a ‘garden

variety claim of excusable neglect.’” Id. at 656 (quoting Irwin

v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990)). Granted,

he called the clerk’s office and was not told that he could

request permission to make an emergency filing by fax or

email, see D.C. Cir. R. 25(g), but he has not alleged that he was

affirmatively misled. Thus, he is ineligible for equitable

tolling.

The majority lists as “factors that altogether could weigh

in favor of equitable tolling” that Nelson “sought to preserve

his rights by phoning the Clerk of Court and then mailing a

5

physical copy of his petition” and that he “could not hand-

deliver” his petition because “he does not reside in the District

of Columbia.” Maj. Op. 15. Calling the clerk’s office and

mailing his petition arguably demonstrates that Nelson

diligently pursued his rights, although other courts have

pointed out that “the errors that often accompany hurried action

do not enable the bungling lawyer to grant himself extra time.”

Farzana K., 473 F.3d at 705. But living outside the District of

Columbia is a common, not extraordinary, obstacle to meeting

a D.C. court filing deadline. Thus, the majority identifies no

extraordinary circumstance, as required by our precedent, that

could support applying equitable tolling here.

Granted, if a non-jurisdictional issue of statutory

reviewability “presents a difficult question,” a court may

assume reviewability and resolve the claim on the merits.

Trump v. Hawaii, 585 U.S. 667, 682–83 (2018). But this is not

a difficult question—Nelson is plainly ineligible for equitable

tolling. In my view, then, the majority errs by reaching the

merits.

C.

On the merits, the majority incorrectly deems Nelson’s

auditor-exclusion argument forfeit. Maj. Op. 18. Under

15 U.S.C. § 78y(c)(1), “[n]o 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.” Contrary to the majority’s assertion that Nelson “did not

raise it before the Commission,” Maj. Op. 18, Nelson urged his

auditor-exclusion argument before the SEC by advancing it in

his award application, J.A. 55 (arguing that the Joint Claimants

are ineligible for an award because their “information was

6

obtained through the performance of an audit engagement and

does not appear to qualify for any of the pertinent exceptions”).

To support its position, the majority cites Doe v. SEC, 28

F.4th 1306, 1316 (D.C. Cir. 2022), but that case is inapt. In

Doe, the petitioners tried to avoid forfeiture by relying on

footnotes in their challenge to the SEC’s preliminary award

determination. Id. Those footnotes sought to “incorporate all

information and arguments” made in the petitioners’ award

applications and to “not waive any argument or position.” Id.

(cleaned up). We observed that the petitioners “fail[ed] to

provide any citation to the portion of their original award

applications where they made this argument,” concluding that

they “never made” such an argument. Id.; see also

Springsteen-Abbott v. SEC, 989 F.3d 4, 8 (D.C. Cir. 2021)

(holding that petitioner “failed to raise her constitutional

challenges before the Commission” because she had previously

raised three issues, none of which was in “substance” “akin to

the Due Process concerns” later asserted). Yet Amicus has

cited to the portion of Nelson’s original award application in

which he urged the substance of his auditor-exclusion

argument.

The majority’s objection is instead that Nelson did not re-

raise this argument when challenging the preliminary award

determination, when the SEC rejected his auditor-exclusion

argument. Maj. Op. 18. Relatedly, in support of its forfeiture

argument the SEC cites one case in which the petitioner “failed

to challenge” an SEC finding “in seeking reconsideration by

the Commission.” KPMG, LLP v. SEC, 289 F.3d 109, 117

(D.C. Cir. 2002). There, the petitioner had not previously

raised its argument. Indeed, its “first notice” that the SEC

would make the finding at issue came in the order of which the

petitioner would later seek reconsideration. Id. Thus, the

Court’s analysis focused on whether there were reasonable

7

grounds for the petitioner’s failure to raise the argument at all.

See id. at 118. Here, as discussed, Nelson had already raised

his auditor-exclusion argument in his award application.

SEC regulations do not indicate a failure to exhaust here

either. A whistleblower-award claimant “may contest the

Preliminary Determination . . . by submitting a written

response . . . setting forth the grounds for [the] objection.”

17 C.F.R. § 240.21F-10(e). Further, “failure to submit a timely

response contesting a Preliminary Determination will

constitute a failure to exhaust administrative remedies.” Id.

§ 240.21F-10(f). But Nelson satisfied the SEC’s

administrative-exhaustion rule by timely submitting a request

for reconsideration setting out grounds for objection, although

he did not repeat the specific auditor-exclusion argument.

The question then becomes whether an argument must be

raised with specificity in a request for reconsideration lest it be

forfeit in a petition for review. The plain text of the statute

imposes no such requirement. By contrast, for example,

statutes administered by the Federal Energy Regulatory

Commission (FERC) impose an “unusually strict exhaustion

requirement,” mandating that each argument be raised with

“specificity” in a request for rehearing. Ameren Servs. Co. v.

FERC, 893 F.3d 786, 793 (D.C. Cir. 2018) (first quoting

Wabash Valley Power Ass’n v. FERC, 268 F.3d 1105, 1114

(D.C. Cir. 2001); then quoting Wis. Power & Light Co. v.

FERC, 363 F.3d 453, 460 (D.C. Cir. 2004)). “[A]ll three of the

major statutes administered by FERC” impose not only a

“mandatory petition-for-rehearing requirement” but also “the

additional requirement of raising the very objection urged on

appeal.” ASARCO, Inc. v. FERC, 777 F.2d 764, 774 (D.C. Cir.

1985) (citing 15 U.S.C. §§ 717r, 3416; 16 U.S.C. § 825l).

Under those statutes, “[n]o objection to the order of the

Commission shall be considered by the court unless such

8

objection shall have been urged before the Commission in the

application for rehearing unless there is reasonable ground for

failure so to do.” E.g., 16 U.S.C. § 825l(b) (emphasis added).

Instead, the Exchange Act simply requires an objection to

be “urged before the Commission.” 15 U.S.C. § 78y(c)(1). As

the majority acknowledges, we also give special “solicitude” to

pro se petitioners who may be less familiar than seasoned

advocates with the “requirements of form and process,”

although they must still comply with relevant rules. Maj.

Op. 8. My colleagues state that Nelson “appears to have been

represented by counsel before the Commission,” id. at 19, but

the record is not clear on that score. Counsel submitted

Nelson’s award application on his behalf but Nelson submitted

his request for reconsideration himself, although he provided

his counsel’s contact details in addition to his own. Absent a

clear rule from the statutory text or our precedent requiring

objections to be reasserted on reconsideration, Nelson—who

became pro se at some point between his award application and

his notice of appeal—should not be deemed to have forfeited

the auditor-exclusion argument when it was raised in his award

application.

D.

On the merits of Nelson’s auditor-exclusion argument—as

the majority notes—the parties dispute which SEC rule

implementing the auditor-exclusion applies here. Maj. Op. 18

n.5. Especially given our duty to “construe liberally” pro se

filings to “avoid inappropriately stringent application of formal

labeling requirements,” Dufur v. U.S. Parole Comm’n, 34 F.4th

1090, 1096 (D.C. Cir. 2022), I think that it should not be

considered forfeiture that Nelson and Amicus cited the auditor-

exclusion rule applicable to non-issuers rather than the

9

corresponding rule for issuers. Compare 17 C.F.R. § 240.21F-

4(b)(4)(iii)(D), with 17 C.F.R. § 240.21F-8(c)(4).

In any event, under either rule Nelson has not shown that

the SEC acted arbitrarily or capriciously in concluding that the

rule did not apply. In both its preliminary determination and

its final order, the SEC stated that the auditor-exclusion rule

did not apply because the relevant whistleblower had internally

reported his or her concerns and the audit team did not file a

section 10A report with either the audited company or the

SEC.1 Under Rule 21F-8(c)(4), “a firm’s failure to promptly

report” a securities law violation discovered during a section

10A audit “constitutes a violation of Section 10A” and “[a]

whistleblower may at any point thereafter report this Section

10A violation to the Commission, and thus become eligible for

an award.” Securities Whistleblower Incentives and

Protections, 76 Fed. Reg. 34300, 34336 n.315 (June 13, 2011).

Under Rule 21F-4(b)(4), a whistleblower who obtains

information in connection with an audit may still be eligible for

an award if at least 120 days elapse between when the

whistleblower provides information to certain persons and

when he provides it to the SEC. 17 C.F.R.

1

If an audit firm “detects . . . that an illegal act . . . may have

occurred, the firm shall” determine “ whether it is likely that” the act

occurred and, if so, “the possible effect” of it on the issuer’s financial

statements. 15 U.S.C. § 78j-1(b)(1). “[U]nless the illegal act is

clearly inconsequential,” the audit firm shall “as soon as practicable,

inform the appropriate level of the management of the issuer and

assure that the audit committee . . . is adequately informed.” Id.

§ 78j-1(b)(1)(B). Subject to certain preconditions, the audit firm

may have an obligation to escalate the report to the issuer’s board of

directors. Id. § 78j-1(b)(2). If the board receives a (b)(2) report, the

issuer “shall inform the Commission by notice not later than 1

business day after the receipt of such report” and, if it does not, the

audit firm must do so. Id. § 78j-1(b)(3).

10

§ 240.21F-4(b)(4)(v)(C). Here, the relevant whistleblower

waited six months between reporting internally and reporting

to the SEC, satisfying both rules’ requirements.

In a last-ditch effort, Amicus contends that the record does

not show that the relevant whistleblower raised specific

concerns internally about the information later submitted to the

SEC as opposed to generic concerns about how the audit was

being conducted overall. But the Ahart declaration explains

that the SEC did not independently corroborate the nature and

extent of the internally raised concerns because it wanted to

avoid possible disclosure of the whistleblower’s identity. That

satisfies the SEC’s obligation to “explain why it decided to act

as it did by providing a statement of reasoning rather than a

mere conclusion.” Cboe Futures Exch. v. SEC, 77 F.4th 971,

980 (D.C. Cir. 2023) (quoting Butte County v. Hogen, 613 F.3d

190, 194 (D.C. Cir. 2010)). Indeed, by statute the SEC is

generally required to protect a whistleblower’s identity unless

disclosure is required in a public proceeding. 15 U.S.C. § 78u-

6(h)(2). Particularly in light of the SEC’s confidentiality

obligations, its judgment call not to independently corroborate

the relevant whistleblower’s report was not arbitrary or

capricious.

***

Accordingly, Nelson’s petition fails on the merits and is

properly denied.