The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 5, 2006 Decided March 30, 2007
No. 04-1242
FINANCIAL PLANNING ASSOCIATION,
PETITIONER
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
Consolidated with
No. 05-1145
On Petitions for Review of an Order of the
Securities and Exchange Commission
Merril Hirsh argued the cause for petitioner. With him on
the briefs was Jonathan A. Cohen.
Rachel M. Weintraub and Mercer E. Bullard were on the
brief for amici curiae Consumer Federal of America and Fund
Democracy, Inc. in support of petitioner.
Debra G. Speyer was on the brief for amicus curiae Public
Investors Arbitration Bar Association in support of petitioner.
2
Rex A. Staples was on the brief for amicus curiae North
American Securities Administrators Association, Inc. in support
of petitioner.
Rada L. Potts, Senior Litigation Counsel, Securities &
Exchange Commission, argued the cause for respondent. With
her on the brief were Brian G. Cartwright, General Counsel,
Jacob H. Stillman, Solicitor, Michael A. Conley, Special
Counsel, and Jeffrey T. Tao, Senior Counsel.
Before: ROGERS, GARLAND and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Dissenting opinion filed by Circuit Judge GARLAND.
ROGERS, Circuit Judge: Brokers and dealers are not subject
to the requirements of the Investment Advisers Act (“IAA”)
where their investment advice is (1) “solely incidental to the
conduct of [their] business as a broker or dealer,” and (2) the
broker or dealer “receives no special compensation therefor.”
15 U.S.C. § 80b-2(a)(11)(C) (2000). The Securities and
Exchange Commission, acting pursuant to § 202(a)(11)(F) and
§ 211(a) of the IAA, 15 U.S.C. §§ 80b-2(a)(11)(F)1, 80b-11(a),
1
In the wake of the Enron and WorldCom collapses,
Congress enacted the Credit Rating Agency Reform Act of 2006
(“CRARA”), Pub. L. No. 109-291, 120 Stat. 1327, 1337 (2006),
which included an amendment to the IAA to add a new exception to
the definition of “investment adviser” in § 202(a)(11) for statistical
rating organizations. CRARA § 4(b)(3), Pub. L. No. 109-291. Hence,
subsection (F) is now found in 15 U.S.C. § 80b-2(a)(11)(G).
References in this opinion are to the IAA prior to this 2006
amendment.
3
promulgated a final rule exempting broker-dealers2 from the
IAA when they receive “special compensation therefor.” See
“Certain Broker-Dealers Deemed Not to be Investment
Advisers,” 70 Fed. Reg. 20,424 (Apr. 19, 2005). The Financial
Planning Association (“FPA”) petitions for review of the final
rule on the ground that the SEC has exceeded its authority. We
agree, and we therefore grant the petition and vacate the final
rule.
I.
The IAA was enacted by Congress as one title of a bill “to
provide for the registration and regulation of investment
companies and investment advisers.” Pub. L. No. 76-768, tit. II,
54 Stat. 847 (1940). The other title was the Investment
Company Act (“ICA”). Pub. L. No. 76-768, tit. I, 54 Stat. 789
(1940). These were the last in a series of congressional
enactments designed to eliminate certain abuses in the securities
industry that contributed to the stock market crash of 1929 and
the depression of the 1930s. Congress had previously enacted
the Securities Act of 1933, the Securities Exchange Act of 1934
(hereinafter “the Exchange Act”), the Public Utility Holding
Company Act of 1935, and the Trust Indenture Act of 1939.
“A fundamental purpose, common to these statutes, was to
substitute a philosophy of full disclosure for the philosophy of
caveat emptor and thus to achieve a high standard of business
ethics in the securities industry.” SEC v. Capital Gains
Research Bureau, Inc., 375 U.S. 180, 186 (1963). The IAA
arose from a consensus between industry and the SEC “that
2
We refer to brokers and dealers as “broker-dealers” because
their different roles are irrelevant for purposes of this appeal. See
IAA, 15 U.S.C. §§ 80b-2(a)(3), (a)(7); Securities Exchange Act, 15
U.S.C. §§ 78c(a)(4) (broker) , (a)(5) (dealer).
4
investment advisers could not ‘completely perform their basic
function – furnishing to clients on a personal basis competent,
unbiased, and continuous advice regarding the sound
management of their investments – unless all conflicts of
interest between the investment counsel and the client were
removed.’” Id. at 187 (citation omitted). According to the
Committee Reports, “[t]he essential purpose of [the IAA] ...
[was] to protect the public from the frauds and
misrepresentations of unscrupulous tipsters and touts and to
safeguard the honest investment adviser against the stigma of
the activities of these individuals by making fraudulent practices
by investment advisers unlawful.” H.R. Rep. No. 76-2639, at 28
(1940).
Virtually no limitations or restrictions exist with
respect to the honesty and integrity of individuals who
may solicit funds to be controlled, managed, and
supervised.... Individuals assuming to act as
investment advisers at present can enter profit-sharing
contracts which are nothing more than ‘heads I win,
tails you lose’ arrangements. Contracts with
investment advisers which are of a personal nature may
be assigned and the control of funds of investors may
be transferred to others without the knowledge or
consent of the client.”
S. Rep. No. 76-1775, at 21-22 (1940).
Under the IAA, investment advisers are required, among
other things, to register and to maintain records, 15 U.S.C.
§ 80b-3(c) & (e); to limit the type of contracts they enter, id.
§ 80b-5; and not to engage in certain types of deceptive and
fraudulent transactions, id. § 80b-6. Congress has amended the
5
IAA on several occasions,3 see VII Louis Loss & Joel Seligman,
Securities Regulation 3314-15 (3d ed. 2003), but the provisions
at issue in this appeal have remained, in relevant part,
unchanged.
In § 202(a)(11) of the IAA, Congress broadly defined
“investment adviser” as
any person who, for compensation, engages in the
business of advising others, either directly or through
publications or writings, as to the value of securities or
as to the advisability of investing in, purchasing, or
selling securities, or who, for compensation and as part
of a regular business, issues or promulgates analyses or
reports concerning securities ....”
15 U.S.C. § 80b-2(a)(11). Carving out six exemptions from this
broad definition, Congress determined that an “investment
adviser” did not include:
(A) a bank, or any bank holding company as
defined in the Bank Holding Company Act of 1956
which is not an investment company, except that the
term “investment adviser” includes any bank or bank
holding company to the extent that such bank or bank
holding company serves or acts as an investment
adviser to a registered investment company, but if, in
the case of a bank, such services or actions are
performed through a separately identifiable department
or division, the department or division, and not the
3
See, e.g., Pub. L. No. 86-507, 74 Stat. 201 (1960); Pub. L.
No. 86-624, 74 Stat. 412 (1960); Pub. L. No. 86-750, 74 Stat. 885
(1960); Pub. L. No. 91-547, 84 Stat. 1430, 1433 (1970) (adding
§ 206A); Pub. L. No. 94-29, 89 Stat. 163 (1975).
6
bank itself, shall be deemed to be the investment
adviser;
(B) any lawyer, accountant, engineer, or teacher
whose performance of such services is solely incidental
to the practice of his profession;
(C) any broker or dealer [1] whose
performance of such services is solely incidental to
the conduct of his business as a broker or dealer
and [2] who receives no special compensation
therefor;
(D) the publisher of any bona fide newspaper,
news magazine or business or financial publication of
general and regular circulation;
(E) any person whose advice, analyses, or reports
relate to no securities other than securities which are
direct obligations of or obligations guaranteed as to
principal or interest by the United States, or securities
issued or guaranteed by corporations in which the
United States has a direct or indirect interest which
shall have been designated by the Secretary of the
Treasury, pursuant to section 3(a)(12) of the Securities
Exchange Act of 1934, as exempted securities for the
purposes of that Act; or
(F) such other persons not within the intent of
this paragraph, as the Commission may designate
by rules and regulations or order.
15 U.S.C. § 80b-2(a)(11) (emphasis added). Subsections (C)
and (F) are at issue in this appeal.
7
Before enactment of the IAA, broker-dealers and others
who offered investment advice received two general forms of
compensation. Some charged only traditional commissions
(earning a certain amount for each securities transaction
completed). Others charged a separate advice fee (often a
certain percentage of the customer’s assets under advisement or
supervision). See 11 Fed. Reg. 10,996 (Sept. 27, 1946). The
Committee Reports recognized that the statutory exemption for
broker-dealers reflected this distinction; the Reports explained
that the term “investment adviser” was “so defined as
specifically to exclude ... brokers (insofar as their advice is
merely incidental to brokerage transactions for which they
receive only brokerage commissions).” S. Rep. No. 76-1775, at
22; H. R. Rep. No. 76-2639, at 28.
The final rule took a different approach. After determining
in 1999 that certain new forms of fee-contracting adopted by
broker-dealers were “not ... fundamentally different from
traditional brokerage programs,” the SEC proposed a rule very
similar to the final rule, see Notice of Proposed Rulemaking, 64
Fed. Reg. 61,228 (Nov. 10, 1999) (“1999 NOPR”), stating it
would act as if it had already issued the rule, id. at 61,227. In
adopting the temporary rule, pursuant to subsection (F) and its
general rulemaking authority under IAA § 211(a), the SEC
exempted a new group of broker-dealers from the IAA. 64 Fed.
Reg. 61,226 (Nov. 10, 1999). After re-proposing the rule in
January 2005, again pursuant to its authority under subsection
(F) and § 211(a), the SEC adopted a slightly modified final rule
on April 12, 2005, codified at 17 C.F.R. § 275.202(a)(11)-1. 70
Fed. Reg. 20,424, 453-54.
The final rule provides, generally, in Paragraph (a)(1), on
“fee-based programs,” that a broker-dealer who (1) receives
special compensation will not be deemed an investment adviser
if (2) any advice provided is solely incidental to brokerage
8
services provided on a customer’s account and (3) specific
disclosure is made to the customer.4 In Paragraph (a)(2), on
discount brokerage programs, a broker-dealer will not be
deemed to have received special compensation merely because
it charges one customer more or less for brokerage services than
it charges another customer. Paragraph (b) lists three non-
exclusive circumstances in which advisory services, for which
special compensation is received under paragraph (a)(1), would
not be performed “solely incidental to” brokerage: when (1) a
separate fee or contract exists for advice; (2) a customer receives
certain financial planning services; and, (3) generally, a broker-
dealer has investment discretion over a client’s account.
Paragraph (c) states a “special rule” that broker-dealers
registered under the Exchange Act are investment advisers only
for those accounts for which they receive compensation that
subjects them to the IAA. Paragraph (d) defines the term
“investment discretion,” which appears in paragraphs (a)(1) and
(b)(3), to have the same meaning as § 3(a)(35) of the Exchange
Act, 15 U.S.C. § 78c(a)(35), except for “discretion granted by a
customer on a temporary or limited basis.”
4
The required disclosure consists of the following statement:
Your account is a brokerage account and not an
advisory account. Our interests may not always be
the same as yours. Please ask us questions to make
sure you understand your rights and our obligations
to you, including the extent of our obligations to
disclose conflicts of interest and to act in your best
interest. We are paid both by you and, sometimes,
by people who compensate us based on what you
buy. Therefore, our profits, and our salespersons’
compensation, may vary by product and over time.
Section (a)(1)(ii), 70 Fed. Reg. 20,454.
9
The FPA petitions for review, challenging the SEC’s
authority to promulgate the final rule.5 We first address the
threshold issue presented by the SEC’s challenge to FPA’s
standing.
II.
Article III standing is a fundamental prerequisite to any
exercise of the court’s jurisdiction, see Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992), and requires, at the
“irreducible constitutional minimum,” id., a showing that the
litigant has suffered a concrete and particularized injury that is
actual or imminent, traceable to the challenged act, and
redressable by the court. See Allen v. Wright, 468 U.S. 737, 751
(1984); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37-
38, 41-42 (1976). A petitioner must support each element of its
claim to standing “by affidavit or other evidence.” Defenders of
Wildlife, 504 U.S. at 561; see Sierra Club v. EPA, 292 F.3d 895,
899 (D.C. Cir. 2002). The SEC maintains that the FPA fails to
show injury-in-fact because FPA’s assertions of injury from the
final rule’s dual standard are conclusory.
The standard for representational standing is well-
established:
[A]n association has standing to bring suit on behalf of
its members when: (a) its members would otherwise
have standing to sue in their own right; (b) the interests
it seeks to protect are germane to the organization’s
5
The FPA initially filed a petition in 2004 for review of the
1999 temporary rule. See 69 Fed. Reg. 51,620 n.4 (Aug. 20, 2004).
After the SEC promulgated the final rule on April 12, 2005, FPA
again petitioned for review. The court consolidated the petitions by
Order of May 11, 2005.
10
purpose; and (c) neither the claim asserted nor the
relief requested requires the participation of individual
members in the lawsuit.
United Food & Commercial Workers Union Local 751 v. Brown
Group, Inc., 517 U.S. 544, 553 (1996) (quoting Hunt v. Wash.
State Apple Adver. Comm’n, 432 U.S. 333, 343 (1977)). The
FPA meets this test.
The court has “repeatedly recognized that parties ‘suffer
constitutional injury in fact when agencies ... allow increased
competition’ against them.” U.S. Telecom Ass’n v. FCC, 295
F.3d 1326, 1331 (D.C. Cir. 2002) (citation omitted). The FPA
is a non-profit organization with over 27,000 members that
exists to advance the financial planning profession. See Decl. of
Daniel Moisand, President of the FPA, ¶¶ 1, 2, Petitioner’s Br.
App. 1. The final rule creates a dual standard for the provision
of investment advice. First, there are investment advisers who
are covered by the IAA; many FPA members are investment
advisers, and must comply with the IAA. See FPA Comment
Letter of Feb. 7, 2005 n.1. Second, there is a new group of
broker-dealers who are exempted from the IAA even though
their activities do not conform to the two-pronged requirements
of subsection (C). The two groups compete for customers, and
under the final rule one of them (including FPA members) must
continue to comply with the IAA, while the other one (the
broker-dealers in the new, exempt category) need not.
Additionally, contrary to the SEC’s view, the FPA also has
prudential standing. Its members are within the IAA’s zone of
interest, see Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 399
(1987), because one of Congress’s purposes in enacting the IAA
was to protect the ability of “bona fide” investment advisers to
compete on a level regulatory playing field with those advisers
who did not fully disclose their conflicts of interest, see Capital
11
Gains, 375 U.S. at 191 (1963).
Accordingly, we hold that the FPA has standing to bring its
petition.
III.
The FPA contends that when Congress enacted the IAA,
Congress identified in subsection (C) the group of broker-
dealers it intended to exempt, and that subsection (F) was only
intended to allow the SEC to exempt new groups from the IAA,
not to expand the groups that Congress specifically addressed.
The resolution of the FPA’s challenge thus turns on whether the
SEC is authorized under § 202(a)(11)(F) or § 211(a) to except
from IAA coverage an additional group of broker-dealers
beyond the broker-dealers exempted by Congress in subsection
(C), 15 U.S.C. § 80b-2(a)(11)(C). Subsection (F) of
§ 202(a)(11) authorizes the SEC to except from the IAA “such
other persons not within the intent of this paragraph, as the
Commission may designate by rules and regulations or order.”
15 U.S.C. § 80b-2(a)(11)(F). As such, we review the SEC’s
exercise of its authority pursuant to subsection (F) under the
familiar two-step analysis of Chevron, USA, Inc. v. Natural Res.
Def. Counsel, Inc., 467 U.S. 837, 842-43 (1984). Under step
one, the court must determine whether Congress has directly
spoken to the precise question at issue. “If the intent of
Congress is clear, that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously
expressed intent of Congress.” Id. Under step two, “if the
statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is
based on a permissible construction of the statute.” Id. at 843.
In reviewing an agency’s interpretation of its authority under a
statute it administers, the court will uphold that interpretation as
long as it is a reasonable interpretation of the statute. See
12
Village of Bergen v. FERC, 33 F.3d 1385, 1389 (D.C. Cir.
1994).
Applying the “traditional tools of statutory construction,”
see Chevron, 467 U.S. at 843 n.9, the court looks to the text,
structure, and the overall statutory scheme, as well as the
problem Congress sought to solve. See PDK Labs. Inc. v. DEA,
362 F.3d 786, 796 (D.C. Cir. 2004); Sierra Club v. EPA, 294
F.3d 155, 161 (D.C. Cir. 2002). All four elements demonstrate
that the SEC has exceeded its authority in promulgating the rule
under § 202(a)(11)(F) because Congress has addressed the
precise issue at hand.
Section 202(a)(11) lists exemptions (A)-(E) from the broad
definition of “investment adviser” for several classes of persons
– including, for example, lawyers, accountants, and others
whose advice is “solely incidental” to their regular business; and
publishers of newsletters that circulate widely and do not give
individually-tailored financial advice. Among the IAA
exemptions is subsection (C)’s exemption for “any broker or
dealer whose performance of such [investment advisory]
services is solely incidental to the conduct of his business as a
broker or dealer and who receives no special compensation
therefor.” (Emphasis added). Beyond the listed exemptions,
subsection (F) authorizes the SEC to exempt from the IAA
“such other persons not within the intent of this paragraph, as
the Commission may designate by rules and regulations or
order.” (Emphasis added).
In the final rule, the SEC purports to use its authority under
subsection (F) to broaden the exemption for broker-dealers
provided under subsection (C). The rule is inconsistent with the
IAA, however, because it fails to meet either of the two
requirements for an exemption under subsection (F). First, the
legislative “intent” does not support an exemption for broker-
13
dealers broader than the exemption set forth in the text of
subsection (C); therefore, the final rule does not meet the
statutory requirement that exemptions under subsection (F) be
consistent with the “intent” of paragraph 11 of section 202(a).
Second, because broker-dealers are already expressly addressed
in subsection (C), they are not “other persons” under subsection
(F); therefore the SEC cannot use its authority under subsection
(F) to establish new, broader exemptions for broker-dealers.
The final rule’s exemption for broker-dealers is broader
than the statutory exemption for broker-dealers under subsection
(C). Although the SEC maintains that the intent of paragraph 11
is to exempt broker-dealers who receive special compensation
for investment advice, the plain text of subsection (C) exempts
only broker-dealers who do not receive special compensation for
investment advice. The word “any” is usually understood to be
all inclusive. See New York v. EPA, 443 F.3d 880, 885 (D.C.
Cir. 2006). As “[t]he plain meaning of legislation should be
conclusive, except in the ‘rare cases [in which] the literal
application of a statute will produce a result demonstrably at
odds with the intentions of its drafters,’” United States v. Ron
Pair Enters., Inc., 489 U.S. 235, 242 (1989) (quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)), the terms
of the IAA establish the precise conditions under which broker-
dealers are exempt from the IAA. “To read out of a statutory
provision a clause setting forth a specific condition or trigger to
the provision’s applicability is ... an entirely unacceptable
method of construing statutes.” Natural Res. Def. Council v.
EPA, 822 F.2d 104, 113 (D.C. Cir. 1987).
No other indicators of congressional intent support the
SEC’s interpretation of its authority under subsection (F). The
relevant language in the committee reports suggests that
Congress deliberately drafted the exemption in subsection (C)
to apply as written. Those reports stated that the “term
14
‘investment adviser’ is so defined as specifically to exclude ...
brokers (insofar as their advice is merely incidental to brokerage
transactions for which they receive only brokerage
commissions).” S. Rep. No. 76-1775, at 22 (emphasis added);
see also H.R. Rep. No. 76-2639, at 28. By seeking to exempt
broker-dealers beyond those who receive only brokerage
commissions for investment advice, the SEC has promulgated
a final rule that is in direct conflict with both the statutory text
and the Committee Reports.
The text of subsection (F) confirms this conclusion by the
limiting the SEC’s exemption authorization to “other persons.”
We agree with the FPA that when Congress enacted the IAA,
Congress identified the specific classes of persons it intended to
exempt. As to broker-dealers, subsection (C) applied to “any
broker or dealer.” Congress, through the use of contrasting text
in subsection (F), signaled that it only authorized the SEC to
exempt “other persons” when consistent with the intent of the
paragraph, and thus only when doing so would not override
Congress’s determination of the appropriate persons to be
exempted from the IAA’s requirements.
As the FPA points out, the word “other” connotes “existing
besides, or distinct from, that already mentioned or implied.” II
The Shorter Oxford English Dictionary 1391 (2d ed. 1936,
republished 1939). See Key v. Allstate Ins. Co., 90 F.3d 1546,
1550 (11th Cir. 1996) (citing The American Heritage Dictionary
931 (1981)). There is nothing to suggest that Congress did not
intend the words “any” or “other” to have their “ordinary or
natural meaning.” Smith v. United States, 508 U.S. 223, 228
(1993). So understood, courts have hesitated to allow parties to
use language structurally similar to the “other persons” clause in
subsection (F) to redefine or otherwise avoid specific
requirements in existing statutory exceptions. In Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 864 n.11 (1988),
15
for example, the Supreme Court noted that where Federal Rule
of Civil Procedure 60(b) contained five explicit grounds for
relief, and one non-specific “any other reason” clause,
(emphasis added) the structure of the clauses suggested that the
final clause could not be used to elude or enlarge the first five –
that “clause (6) and clauses (1) through (5) are mutually
exclusive.” (emphasis added). Accord Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 393 (1993);
Hesling v. CSX Transp. Inc., 396 F.3d 632, 643 (5th Cir. 2005);
United States v. Erdoss, 440 F.2d 1221, 1223 (2d Cir. 1971).
Similarly, in Am. Bankers Ass’n v. SEC, this court explained
that:
A universal clause preceding every definition in the
statute, which states only “unless the context otherwise
requires,” cannot provide the authority for one of the
agencies whose jurisdictional boundaries are defined in
the statute to alter by administrative regulation those
very jurisdictional boundaries. To suggest otherwise is
to sanction administrative autonomy beyond the
control of either Congress or the courts.
804 F.2d 739, 754 (D.C. Cir. 1986). Our dissenting colleague
attempts to distinguish these two cases as limited to situations in
which one agency seeks to redraw the jurisdictional boundaries
of another agency. See Dissenting Op. at 7-9. That
interpretation, however, ignores the underlying principle in each
case: where the statutory text is clear, an agency may not use
general clauses to redefine the jurisdictional boundaries set by
the statute.
Just as the text and structure of paragraph of 202(a)(11)
make it evident that Congress intended to define “investment
adviser” broadly and create only a precise exemption for broker-
dealers, so does a consideration of the problems Congress
16
sought to address in enacting the IAA. A comprehensive study
conducted by the SEC pursuant to the Public Utility Holding
Company Act of 1935 indicated that “many investment counsel
have ‘strayed a great distance from that professed function’ of
furnishing disinterested, personalized, continuous supervision of
investments.” Securities and Exchange Commission, Investment
Counsel, Investment Management, Investment Supervisory and
Investment Advisory Services, at 25 (1939) (quoting testimony
of brokerage executive James N. White, of Scudder, Stevens &
Clark). Floor debate on the IAA called attention to the fact that
while this study was being conducted investment trusts and
investment companies had perpetrated “some of the most
flagrant abuses and grossest violations of fiduciary duty to
investors.” 86 Cong. Rec. 2844 (daily ed. Mar. 14, 1940)
(statement of Sen. Wagner). Congress reiterated throughout its
proceedings an intention to protect investors and bona fide
investment advisers.6
The overall statutory scheme of the IAA addresses the
problems identified to Congress in two principal ways: First, by
establishing a federal fiduciary standard to govern the conduct
of investment advisers, broadly defined, see Transamerica
Mortgage Advisors v. Lewis, 444 U.S. 11, 17 (1979), and
second, by requiring full disclosure of all conflicts of interest.
As the Supreme Court noted, Congress’s “broad proscription
against ‘any ... practice ... which operates ... as a fraud or deceit
upon any client or prospective client’ remained in the bill from
beginning to end.” Capital Gains, 375 U.S. at 191.
[T]he Committee Reports indicate a desire to ...
6
See, e.g., 86 Cong. Rec. S2844-45, 2847 (daily ed. Mar. 14,
1940); 86 Cong Rec. S8843 (daily ed. June 21, 1940); 86 Cong. Rec.
H9807, 9809, 9815-16 (daily ed. Aug. 1, 1940); 86 Cong. Rec.
S10077 (daily ed. Aug. 8, 1940).
17
eliminate conflicts of interest between the investment
adviser and the clients as safeguards both to
‘unsophisticated investors’ and to ‘bona fide
investment counsel.’ The [IAA] thus reflects a ...
congressional intent to eliminate, or at least to expose,
all conflicts of interest which might incline an
investment adviser – consciously or unconsciously –
to render advice which was not disinterested.
Id. at 191-92. This statutory scheme is inconsistent with a
construction of the SEC’s authority under subsection (F) that
would enable persons Congress determined should be subject to
the IAA to escape its restrictions.
In an attempt to overcome the plain language of the statute,
the SEC asserts that Congress was also concerned about the
regulation of broker-dealers under both the IAA and Exchange
Act, and that such concern was reflected in the “intent” of the
paragraph. See 70 Fed. Reg. 20,430; see also 64 Fed. Reg.
61,228. The SEC points to no convincing evidence that supports
these assertions. At the time Congress enacted the IAA in 1940,
broker-dealers were already regulated under the Exchange Act.
In the IAA, Congress expressly acknowledged that the broker-
dealers it covered could also be subject to other regulation. IAA
§ 208(b), 15 U.S.C. § 80b-8(b). The IAA’s essential purpose
was to “protect the public from the frauds and
misrepresentations of unscrupulous tipsters and touts and to
safeguard the honest investment adviser against the stigma of
the activities of these individuals by making fraudulent practices
by investment advisers unlawful.” H.R. Rep. No. 76-2639 at 28;
see also id. at 21. As the FPA emphasizes, there is nothing in the
committee reports to suggest that Congress was particularly
concerned about the regulatory burdens on broker-dealers.
While the SEC’s failure to respect the unambiguous textual
18
limitations marked by the phrase “intent of this paragraph” and
“other persons” is fatal to the final rule, an additional weakness
exists in the SEC’s interpretation: It flouts six decades of
consistent SEC understanding of its authority under subsection
(F). Cf. Commodity Futures Trading Comm’n v. Schor, 478
U.S. 833, 844 (1986); Red Lion Broad. Co. v. FCC, 395 U.S.
367, 380-82 (1969).7 Subsection (F) is not a catch-all that
7
Very shortly after enactment of the IAA, the SEC
advised that any charges directly related to the giving of
investment advice would be special compensation. On October
28, 1940, the SEC General Counsel issued an opinion stating:
Clause (C) of section 202 (a) (11) amounts to a
recognition that brokers and dealers commonly
give a certain amount of advice to their
customers in the course of their regular business,
and that it would be inappropriate to bring them
within the scope of the Investment Advisers Act
merely because of this aspect of their business.
On the other hand, that portion of clause (C)
which refers to “special compensation” amounts
to an equally clear recognition that a broker or
dealer who is specially compensated for the
rendition of advice should be considered an
investment adviser and not be excluded from the
purview of the Act merely because he is also
engaged in effecting market transactions in
securities.
11 Fed. Reg. 10,996 (Sept. 27, 1946) (reprinting SEC General
Counsel opinion letter of October 28, 1940). Thus, any charges
“directly related to the giving of advice” would be special
compensation. Id.
19
authorizes the SEC to rewrite the statute. Rather, as subsection
(F)’s terms provide, the authority conferred must be exercised
consistent with the “intent of this paragraph” and apply to “other
persons.” The SEC cannot point to any instance between the
1940 enactment of the IAA and the commencement of the
rulemaking proceedings that resulted in the final rule in 2005,
when it attempted to invoke subsection (F) to alter or rewrite the
exemptions for persons qualifying for exemptions under
subsections (A)-(E). Rather, the SEC has historically invoked
subsection (F) to exempt persons not otherwise addressed in the
five exemptions established by Congress: For example, the
adviser to a family trust who was otherwise subject to fiduciary
duties, Oral Arg. Tape at 39:20-43:24; or new groups, such as
This contemporary interpretation was reflected as well
when the SEC addressed two-tiered pricing arrangements
(including a discounted fee arrangement) in 1978:
[I]f a broker-dealer has in effect, either formally
or informally, two general schedules of fees
available to a customer, the lower without
investment advice and the higher with
investment advice[,] and the difference is
primarily attributable to this factor . . . the [SEC]
would regard the extra charge as “special
compensation” for investment advice.
43 Fed. Reg. 19,224, 19,226 (May 4, 1978). The SEC made
clear at the time that “[t]his would be the case even in a
situation, currently nonexistent, in which a current ‘full service’
firm implements a ‘discount’ or ‘execution-only’ service.” Id.;
see also Townsend & Assocs., Inc., SEC No-Action Letter, 1994
SEC No-Act. LEXIS 739 (Sept. 21, 1994); Am. Capital Fin.
Servs., Inc., SEC No-Action Letter, 1985 SEC No-Act. LEXIS
2209 (Apr. 29, 1985).
20
thrift institutions acting in a fiduciary capacity, 69 Fed. Reg.
25,777-90 (May 7, 2004), and World Bank instrumentalities that
provide advice only to sovereigns, In re Int’l Bank for Reconstr.
& Dev., 2001 SEC LEXIS 1782 (Sept. 4, 2001). As the SEC’s
own actions for the last 65 years suggest, subsection (F) serves
the clear purpose of authorizing the SEC to address persons or
classes involving situations that Congress had not foreseen in
the statutory text – not to broaden the exemptions of the classes
of persons (such as broker-dealers) Congress had expressly
addressed.
The SEC unconvincingly attempts to defend its expansive
interpretation of subsection (F) by likening it to section 6(c) of
the ICA, 15 U.S.C. § 80a-6(c). Section 6(c) of the ICA
empowers the SEC to grant exemptions from the ICA, or any
rule or regulation adopted under it, “if and to the extent that such
exemption is necessary or appropriate in the public interest and
consistent with the protection of investors and the purposes
fairly intended by the policy and provisions” of the ICA. This
court has noted that the SEC “has exercised this authority to
exempt persons not within the intent of the [ICA] and generally
to adjust its provisions to take account of special situations not
foreseen when the [ICA] was drafted.” NASD v. SEC, 420 F.2d
83, 92 (D.C. Cir. 1969), vacated on other grounds, Investment
Co. Inst. v. Camp, 401 U.S. 617 (1971). Reliance on NASD does
not advance the SEC’s position as the plain text of the ICA is far
broader than that of IAA subsection (F). The ICA expressly
refers to the SEC’s view of “the public interest” as a basis for
new exemptions. “[W]e assume that in drafting ... legislation,
Congress said what it meant.” United States v. LaBonte, 520
U.S. 751, 757 (1997). Although Congress amended the IAA in
1970, see supra n.3, and repeated the same ICA language
highlighted in NASD in § 206A of the IAA, 15 U.S.C. § 80b-6a,
the SEC disavows any reliance on § 206A in promulgating the
final rule, see 70 Fed. Reg. 20,453; Respondent’s Br. at 27 n.10,
21
and thus the court has no occasion to express an opinion on the
SEC’s authority under it, see SEC v. Chenery Corp., 318 U.S.
80, 95 (1943). But the broader language found in § 206A
supports the conclusion that subsection (F) must be read more
narrowly. Cf. Duncan v. Walker, 533 U.S. 167, 174 (2001);
City of Chicago v. Envtl. Def. Fund, 511 U.S. 328, 338 (1994).
In light of the context in which Congress drafted
subsections (C) and (F), we conclude that, as indicated by the
structure of § 202(a)(11) and the problems that Congress
addressed in the IAA, as well as the other indicators of
Congress’s intent, under Chevron step one the text of
subsections (C) and (F) is unambiguous, and that, therefore, the
SEC has exceeded its authority in promulgating the final rule.
Our dissenting colleague’s analysis fails to confront two realities
of statutory construction. First, “[a]mbiguity is a creature not of
definitional possibilities but of statutory context.” Brown v.
Gardner, 513 U.S. 115, 118 (1994). Congress has used words
having ordinary meaning – “any broker or dealer” in subsection
(C) and “other persons” in subsection (F) – and a familiar
structure to express its “intent” in addressing problems
identified by the industry and the SEC. Second, the absence of
a statutory definition of “intent of this paragraph” and “other
persons” does not necessarily render their meaning ambiguous.
See Goldstein v. SEC, 451 F.3d 873, 878 (D.C. Cir. 2006).
Again, the meaning of the text is defined by its context as set
forth in the normal meaning of the words, the structure of
paragraph 11, and the problems Congress sought to address in
the IAA. Because the court’s duty is to give meaning to each
word of a statute, the court cannot properly treat one
authorization, under subsection (F), as duplicative of another
authorization, under Section 206A. See supra at 20; Dissenting
Op. at 10. Consequently, section 202(a)(11)(F) does not lend
itself to alternative meanings; to conclude otherwise would
undermine Congress’s purpose in enacting the IAA — to
22
protect consumers and honest investment advisers and to
establish fiduciary standards and require full disclosure of all
conflicts of interests of “investment advisers,” broadly defined.
The SEC’s suggestion that “new” broker-dealer marketing
developments fall within the scope of its authority under
subsection (F) ignores its own contemporaneous understanding
of Congressional intent to capture such developments. See
supra at 17 and note 7. Although an agency may change its
interpretation of an ambiguous statute, all elements of the
traditional tools of statutory interpretation confound the SEC’s
effort to walk away from its long-settled view of the limits of its
authority under subsection (F) and our dissenting colleague’s
attempt to find an alternative meaning at this late date.
The SEC’s invocation of its general rulemaking authority
under IAA section 211(a),8 is likewise to no avail because it
suggests no intention by Congress that the SEC could ignore
either of the two requirements in subsection (C) for broker-
8
Section 211(a) provides:
The Commission shall have authority from time
to time to make, issue, amend, and rescind such
rules and regulations and such orders as are
necessary or appropriate to the exercise of the
functions and powers conferred upon the
Commission elsewhere in this subchapter. For
the purposes of its rules or regulations the
Commission may classify persons and matters
within its jurisdiction and prescribe different
requirements for different classes of persons or
matters.
15 U.S.C. § 80b–11(a).
23
dealers to be exempt from the IAA. See Am. Bankers, 804 F.2d
at 755. Paraphrasing an apt observation, while, in the SEC’s
view, “[t]he statute may be imperfect, ... the [SEC] has no power
to correct flaws that it perceives in the statute it is empowered to
administer. Its [subsection (F) authority and its] rulemaking
power[s] [are] limited to adopting regulations to carry into effect
the will of Congress as expressed in the statute.” Bd. of
Governors v. Dimension Fin. Corp., 474 U.S. 361, 374 (1986).
Accordingly, we grant the petition and vacate the final rule.
See North Carolina v. Fed. Energy Regulatory Comm’n, 730
F.2d 790, 795-96 (D.C. Cir. 1984); cf. K Mart Corp. v. Cartier,
Inc., 486 U.S. 281, 294 (1988). The final rule does not contain
a severability clause; nor does the SEC suggest it is severable.
Paragraph (b) is expressly tied to paragraph (a). Although,
absent (a) or (b), paragraph (c) merely states the current law, the
SEC identifies paragraph (c) as one of “three separate, yet
related, parts” of the final rule. Respondent’s Br. at 11, 13.
Paragraph (d) defines a term used in paragraphs (a) and (b). The
SEC release to the final rule states that paragraph (d) institutes
a policy change based on its interpretation of subsection (F), see
70 Fed. Reg.20,439-440, but otherwise identifies paragraph (d)
in the release as part and parcel of the final rule, see, e.g., id. at
20,424.
GARLAND, Circuit Judge, dissenting:
The Investment Advisers Act contains five specific
exceptions, and further authorizes the SEC to exempt “such
other persons not within the intent of this paragraph, as the
Commission may designate by rules.” 15 U.S.C. § 80b-2(a)(11).
Unlike my colleagues, I cannot derive an unambiguous meaning
from the terms “such other persons” and “within the intent of
this paragraph.” As required by Chevron, I would therefore
defer to the SEC’s reasonable interpretation of the statute it
administers and uphold the Commission’s fee-based brokerage
rule.
I
The Investment Advisers Act (IAA) imposes a series of
requirements on “investment advisers.” See 15 U.S.C. §§ 80b-3
to -6. Paragraph 11 of section 202(a) of the Act defines an
“investment adviser” as “any person who, for compensation,
engages in the business of advising others . . . as to the value of
securities or as to the advisability of investing in, purchasing, or
selling securities,” unless that person comes within one of six
exceptions. Id. § 80b-2(a)(11).* The first five exceptions
include, inter alia, certain banks and bank holding companies,
certain lawyers and accountants, and -- most relevant here --
certain brokers and dealers. The exception relating to broker-
dealers -- subsection (C) -- exempts:
any broker or dealer whose performance of [advisory]
services is solely incidental to the conduct of his
business as a broker or dealer and who receives no
special compensation therefor.
*
Congress added a seventh exception in 2006. My citations, like
the court’s, are to the pre-amendment statute.
2
Id. § 80b-2(a)(11)(C). The SEC has construed “special
compensation” to mean any compensation other than brokerage
commissions (or dealers’ “mark-ups” or “mark-downs”). See
Certain Broker-Dealers Deemed Not To Be Investment
Advisers, 70 Fed. Reg. 20,424, 20,425 & n.10 (Apr. 19, 2005)
[hereinafter Certain Broker-Dealers]. Hence, a broker-dealer
who receives any kind of compensation other than commissions
does not come within the subsection (C) exception, even if he,
too, provides advice solely as an incident to his business as a
broker-dealer. See id. at 20,425.
In addition to the five specific exceptions, the IAA’s
definition of covered investment advisers includes a sixth
exception -- subsection (F) -- which reads as follows:
such other persons not within the intent of this
paragraph, as the Commission may designate by rules
and regulations or order.
15 U.S.C. § 80b-2(a)(11)(F). That exception is the crux of this
case. In the final rule currently under attack, the SEC exercised
its authority under subsection (F) to create an exception for
broker-dealers whose provision of advice is also solely
incidental to their brokerage services, but who receive a
particular kind of non-commission compensation. These broker-
dealers -- a group that did not exist when the IAA was passed in
1940 -- charge either a fixed fee or a fee based on the amount of
assets in the customer’s account. In return, they provide the
customer with a traditional package of brokerage services that
includes investment advice, execution, arranging for delivery
and payment, and custodial and recordkeeping services. Certain
Broker-Dealers, 70 Fed. Reg. at 20,425. Because these broker-
dealers receive fee-based compensation rather than
commissions, they receive “special compensation” within the
3
meaning of subsection (C) and hence are not covered by that
exception. See id.
As the court states, the question before us is whether
subsection (F) gives the SEC the authority to “except from IAA
coverage an additional group of broker-dealers beyond the
broker-dealers exempted by Congress in subsection (C).” Court
Op. at 11. The SEC believes that it does. In the Commission’s
view, although these broker-dealers receive “special
compensation” in a technical sense, they provide investment
advice in the same manner as those who are exempt under
subsection (C), and exempting them would thus serve the same
purpose. See infra Part III.
Under the first step of Chevron analysis, if the terms of
subsection (F) unambiguously preclude the SEC’s interpretation,
we must reject it. See Chevron USA Inc. v. Natural Res. Def.
Council, Inc., 467 U.S. 837, 842-44 (1984). If the terms are
ambiguous, however, we must proceed to Chevron’s second step
and defer to the SEC’s interpretation if it is reasonable. See id.;
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545
U.S. 967, 980 (2005).
II
The court begins and ends its analysis at Chevron step one,
concluding that the SEC unambiguously lacks authority under
subsection (F) to exempt any broker-dealers beyond those
specified in subsection (C). Court Op. at 21. The court reaches
this conclusion based on its examination of the subsection (F)
terms “such other persons” and “within the intent of this
paragraph.” I fail to appreciate the clarity of either term.
Indeed, apart from the inherent ambiguity of the words
themselves, clarity is particularly elusive because subsection
(F)’s final clause -- “as the Commission may designate by rules”
4
-- expressly authorizes the SEC to determine the intent of the
paragraph and designate further exceptions by regulation. As
the Supreme Court instructed in Chevron, where “there is an
express delegation of authority to the agency to elucidate a
specific provision of the statute by regulation[,] [s]uch
legislative regulations are given controlling weight unless they
are arbitrary, capricious, or manifestly contrary to the statute.”
Chevron, 467 U.S. at 843-44; see Am. Council on Educ. v. FCC,
451 F.3d 226, 232 (D.C. Cir. 2006).
A
Like my colleagues, I begin with the term “within the intent
of this paragraph.” Under Chevron, a statutory term is
unambiguous only if Congress has “directly spoken to the
precise question at issue.” 467 U.S. at 842-43. The court is
obviously correct in stating that “the plain text of subsection (C)
exempts only broker-dealers who do not receive special
compensation for investment advice” -- that is, broker-dealers
who do not receive compensation other than commissions.
Court Op. at 13 (emphasis added). But that is not the precise
question before us. That question is whether Congress intended
subsection (F) to permit the SEC to exempt broker-dealers
beyond those already exempt under subsection (C).
The court cannot point to any words in paragraph 11, or in
any other paragraph of the Act, that suggest a negative answer
to that question -- or that explain what Congress intended with
respect to that question at all. Instead, the court appears to rely
on a version of the expressio unius canon -- the principle that the
mention of one thing implies the exclusion of another -- by
reasoning that the exception for some broker-dealers in
subsection (C) means that coverage of all other broker-dealers
must be “within the intent of” paragraph 11. But this court has
repeatedly held that expressio unius is “an especially feeble
5
helper in an administrative setting, where Congress is presumed
to have left to reasonable agency discretion questions that it has
not directly resolved.” Martini v. Fed. Nat’l Mortgage Ass’n,
178 F.3d 1336, 1343 (D.C. Cir. 1999) (quoting Cheney R.R. Co.
v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990)) (internal quotation
marks omitted); see Texas Rural Legal Aid, Inc. v. Legal Servs.
Corp., 940 F.2d 685, 694 (D.C. Cir. 1991) (“[T]he expressio
canon is simply too thin a reed to support the conclusion that
Congress has clearly resolved the issue.”). The canon’s negative
inference is particularly implausible where -- as in subsection
(F) -- Congress has explicitly authorized additional exceptions
beyond those specified in the statute.
Turning from the statutory text to the legislative history, the
court quotes a committee report stating that the “‘term
“investment adviser” is so defined as specifically to exclude . .
. brokers (insofar as their advice is merely incidental to
brokerage transactions for which they receive only brokerage
commissions).’” Court Op. at 14 (quoting S. REP. NO. 76-1775,
at 22 (1940)) (emphasis added by the court); see also H.R. REP.
NO. 76-2639, at 28 (1940). This quotation, however, has the
same problem identified above. The committee was referring
only to the specific exclusion provided by subsection (C), and
not to the further exclusions permitted by subsection (F). That
is made clear by the sentence that follows the one quoted by the
court: “In addition, the Commission is authorized by rules and
regulations or order, to make certain further exceptions
according to prescribed statutory standards.” S. REP. NO. 76-
1775, at 22 (emphasis added); see also H.R. REP. NO. 76-2639,
at 28. There is nothing in the committee report that explains
Congress’ intentions with respect to those “further exceptions.”
6
B
The court also perceives clarity in the subsection (F) term
“such other persons.” According to the court, “other persons”
excludes any person who is a member of one of the broad
categories referenced in paragraph 11’s five specific exceptions.
Because some broker-dealers are referenced in subsection (C),
the court concludes that the subset of broker-dealers covered by
the fee-based brokerage rule cannot constitute “other persons”
within the meaning of subsection (F). See Court Op. at 14-15.
The SEC, by contrast, contends that “other persons” excludes
only those persons who actually come within one of the five
preceding exceptions. On the SEC’s reading, the fee-based
brokerage rule is a permissible exercise of the Commission’s
delegated authority because it exempts broker-dealers other than
those exempted by subsection (C).
Because the IAA does not define “other persons,” the court
turns to the dictionary to find its meaning. There, the court
learns that “the word ‘other’ connotes ‘existing besides, or
distinct from, that already mentioned or implied.’” Id. at 14
(quoting 2 THE SHORTER OXFORD ENGLISH DICTIONARY 1391
(2d ed. 1936, republished 1939)). But like the text and the
legislative history, the dictionary fails to resolve the precise
question at issue. It cannot tell us whether the persons “already
mentioned” in subsection (C) are “any broker or dealer,” as one
might reasonably conclude if one looked only at the first four
words of the subsection, or instead are “any broker or dealer
whose performance of such services is solely incidental to the
conduct of his business . . . and who receives no special
compensation therefor,” as one might reasonably conclude if
one looked at all the words of the subsection. The SEC takes
the latter approach, and neither the plain text nor the dictionary
bars that construction. This should end the Chevron step one
inquiry.
7
Turning away from the IAA altogether, the court next looks
to judicial precedents construing two different provisions --
Federal Rule of Civil Procedure 60(b) and the Securities
Exchange Act of 1934. These cases, however, shed no light on
the IAA.
In Liljeberg v. Health Services Acquisition Corp., 486 U.S.
847 (1998), the Supreme Court interpreted Rule 60(b), which
allows a court to grant relief from a final judgment for any of
five sets of specific reasons (e.g., mistake), or -- under the
Rule’s sixth clause -- for “any other reason justifying relief.”
FED. R. CIV. P. 60(b). Although Liljeberg does state that
“‘clause (6) and clauses (1) through (5) are mutually
exclusive,’” Court Op. at 15 (quoting Liljeberg, 486 U.S. at 864
n.11), the case is wholly inapposite. First, the Court was
interpreting Rule 60(b) de novo, not reviewing an agency
interpretation entitled to Chevron deference. At most, then, the
Court’s statement indicates what it regarded as the best
interpretation of the phrase “any other reason,” not what it saw
as the only possible interpretation. Second, the reason the Court
read Rule 60(b) as it did was that the rule contains a one-year
statute of limitations for seeking relief under clause (1), while
motions under clause (6) need only be brought within a
“reasonable time.” Hence, barring a party from basing a clause
(6) claim on the same grounds specified in clause (1) was
necessary “to prevent clause (6) from being used to circumvent
the 1-year limitations period that applies to clause (1).”
Liljeberg, 486 U.S. at 864 n.11. There is nothing similar in the
structure of IAA paragraph 11. Finally, the reading of Rule
60(b)’s “any other reason” clause rejected by the Supreme Court
is actually the inverse of the SEC’s reading of subsection (F).
The Court stated that “a party may ‘not avail himself of the
broad “any other reason” clause’ . . . if his motion is based on
grounds specified in clause (1).” Id. (emphasis added) (quoting
Klapprott v. United States, 335 U.S. 601, 613 (1949)). That is,
8
a person who qualifies for relief under clause (1) cannot also
obtain relief under clause (6). Here, by contrast, the SEC
employed subsection (F)’s “such other persons” language to
create an exception for persons who could not qualify for an
exception under any of the preceding subsections.
This circuit’s interpretation of the Securities Exchange Act
in American Bankers Association v. SEC, 804 F.2d 739 (D.C.
Cir. 1986), is likewise inapposite. There, the court declined to
accord Chevron deference to an SEC interpretation because it
concerned the allocation of jurisdiction between the SEC and
other agencies. The Exchange Act expressly excludes “banks,”
which are regulated by the federal banking agencies, from the
definitions of “brokers” and “dealers,” which are regulated by
the SEC. See id. at 743 (citing 15 U.S.C. § 78c(a)(4)-(5)). The
Act also contains a definition of “banks.” See id. at 744 (citing
15 U.S.C. § 78c(a)(6)). Although all of the Exchange Act’s
definitions are preceded by an “unless the context otherwise
requires” clause, American Bankers rejected the SEC’s effort to
use that clause to redefine “banks” so as to subject some to SEC
regulation. Such a “rote phrase,” the court said, “cannot provide
the authority for one of the agencies whose jurisdictional
boundaries are defined in the statute to alter by administrative
regulation those very jurisdictional boundaries.” Id. at 754
(emphasis added). But there is no other agency in the picture in
this case. Nor is the Exchange Act’s narrow direction to look to
“context” to avoid “absurd consequences,” id. at 753, equivalent
to subsection (F)’s express delegation of authority to the SEC to
make further exceptions to the IAA. Indeed, American Bankers
itself suggested that, had the Exchange Act contained such an
“express delegation,” the result in that case might well have
been different. Id. at 749.
In short, these cases do not illustrate an “underlying
principle” that resolves the interpretive question in this case.
9
Court Op. at 15. To the contrary, they merely tell us how courts
have construed dissimilar language in dissimilar circumstances
-- that is, in situations where, unlike here, Chevron deference is
inappropriate. There is, therefore, nothing in the text or
structure of paragraph 11 -- or in any judicial precedent -- that
compels the statutory construction that the court has adopted.
C
Finally, the court seeks to buttress its arguments from text
and structure with three more general considerations. First, it
examines “the problems Congress sought to address in enacting
the IAA.” Id. at 16. That the first item the court turns to in that
examination is a 1939 “comprehensive study conducted by the
SEC,” id., should cast some doubt on whether the court is better
equipped to interpret the study’s import than the authoring
agency. In any event, my colleagues learn little from this or any
other aspect of the historical context beyond the fact that “[t]he
IAA’s essential purpose was to ‘protect the public from the
frauds and misrepresentations of unscrupulous tipsters and
touts.’” Id. at 17 (quoting H.R. REP. NO. 76-2639, at 28). There
is no doubt that this accurately identifies the intent of Congress
at a high level of generality. But it, too, fails to address the
precise question at issue here -- the meaning of subsection (F).
Nor should it come as any surprise that -- as discussed in Part III
below -- the SEC neither disputes that the IAA’s essential
purpose was to protect the public from fraud and
misrepresentation, nor believes that its fee-based brokerage rule
would be a boon to unscrupulous tipsters and touts.
My colleagues contend that “an additional weakness exists
in the SEC’s interpretation” because it “flouts six decades of
consistent SEC understanding of its authority under subsection
(F).” Id. at 18. The only SEC opinions quoted for that
proposition are two releases that refer only to subsection (C).
10
Neither mentions subsection (F) at all, and neither considers
whether an exception for fee-based brokerage would be
appropriate under that (or any other) subsection. See id. at 18
n.7 (citing 43 Fed. Reg. 19,224, 19,226 (May 4, 1978), and 11
Fed. Reg. 10,996 (Sept. 27, 1946) (republishing SEC General
Counsel opinion letter of Oct. 28, 1940)).
But even if the SEC had changed its construction of
subsection (F), “‘change is not invalidating, since the whole
point of Chevron is to leave the discretion provided by the
ambiguities of a statute with the implementing agency.’” Brand
X, 545 U.S. at 981 (quoting Smiley v. Citibank (S.D.), N.A., 517
U.S. 735, 742 (1996)). It is well-settled that “[a]n agency’s
interpretation of a statute is entitled to no less deference . . .
simply because it has changed over time.” Nat’l Home Equity
Mortgage Ass’n v. Office of Thrift Supervision, 373 F.3d 1355,
1360 (D.C. Cir. 2004). Indeed, Chevron itself deferred to a
changed agency interpretation. See Chevron, 467 U.S. at 863-
64. As the Court said in Brand X, “[u]nexplained inconsistency
is, at most, a reason for holding an interpretation to be an
arbitrary and capricious change from agency practice under the
Administrative Procedure Act” -- an issue my colleagues do not
address. 545 U.S. at 981. In any event, the SEC’s construction
is neither inconsistent nor, as discussed in Part III, unexplained.
Last, my colleagues state that “the broader language found
in § 206A [of the IAA] supports the conclusion that subsection
(F) must be read more narrowly.” Court Op. at 21. Whether the
exempting power delegated to the SEC under § 206A is in fact
broader than that delegated by subsection (F) is unclear.
Compare 15 U.S.C. § 80b-6a, with id. § 80b-2(a)(11)(F). But
even if it were, the court does not explain how § 206A, which
was not added to the IAA until 1970, can provide insights into
the intent of the Congress that enacted subsection (F) in 1940.
11
Because I fail to perceive the clarity required to vacate the
SEC’s fee-based brokerage rule under the first step of Chevron
analysis, I proceed to the second step.
III
Under Chevron step two, “if the implementing agency’s
construction is reasonable,” a court must “accept the agency’s
construction of the statute, even if the agency’s reading differs
from what the court believes is the best statutory interpretation.”
Brand X, 545 U.S. at 980 (citing Chevron, 467 U.S. at 843-44 &
n.11).
For the same reasons that I find subsection (F)’s use of the
term “such other persons” ambiguous, see supra Part II.B, I
conclude that the SEC’s construction of that term is reasonable.
There is nothing implausible about interpreting those words to
encompass anyone not actually exempt under one of the five
preceding exceptions. In so doing, the SEC does not “rewrite
the statute.” Court Op. at 19. Rather, it gives effect to one of
two plausible interpretations of the statutory language.
The reasonableness of the SEC’s interpretation of “such
other persons” does not end the analysis, of course. Any
regulatory exception must also be consistent with “the intent of”
paragraph 11. The remaining question, then, is whether an
exception for broker-dealers who provide investment advice
solely incidental to their business as broker-dealers, but who are
paid fee-based rather than commission-based compensation, is
consistent with that intent.
The SEC has presented a reasonable case for concluding
that it is. The Commission explained that, at the time of the
IAA’s passage in 1940, broker-dealers were providing
investment advice and receiving compensation in only two
12
ways: “as an auxiliary part of the traditional brokerage services
for which their brokerage customers paid fixed commissions
and, alternatively, as a distinct advisory service for which their
advisory clients separately contracted and paid a fee.” Certain
Broker-Dealers, 70 Fed. Reg. at 20,428. Congress was
concerned about the potential for fraud and misrepresentation
when advice was provided in the latter form -- whether it was
provided by broker-dealers charging separately for such advice
or by others whose only business was to provide advice for a
fee. See id. at 20,429-30 & n.60. In enacting the IAA, however,
Congress did not express the same concern about investment
advice included within a larger package of brokerage services --
as evidenced by the exception contained in subsection (C).
As the SEC interprets the legislative history, subsection (C)
was intended to exempt broker-dealers when they gave
investment advice as part of a package of traditional brokerage
services, but not when they sold advice as a distinct service for
a separate fee. See id. at 20,430. The 1940 SEC release quoted
by the court, Court Op. at 18 n.7, is to precisely that effect:
Clause (C) . . . amounts to a recognition that brokers
and dealers commonly give a certain amount of advice
to their customers in the course of their regular
business, and that it would be inappropriate to bring
them within the scope of the [IAA] merely because of
this aspect of their business. On the other hand, that
portion of clause (C) which refers to “special
compensation” amounts to an equally clear recognition
that a broker or dealer who is specially compensated
for the rendition of advice should be considered an
investment adviser and not be excluded from the
purview of the Act . . . .
13
11 Fed. Reg. 10,996 (Sept. 27, 1946) (emphasis added)
(republishing SEC General Counsel opinion letter of Oct. 28,
1940). Since, at the time, the only kind of compensation that
exchange rules permitted a broker-dealer to charge for a
traditional package of services was the fixed brokerage
commission, subsection (C)’s exception for broker-dealers
receiving such compensation effectively exempted all broker-
dealers who provided advice as part of such a package. See
Certain Broker-Dealers, 70 Fed. Reg. at 20,431 & n.75.
For several decades after the IAA was passed, subsection
(C)’s “no special compensation” rule -- understood to mean “no
compensation other than brokerage commissions” -- continued
to exempt the only group of broker-dealers who gave advice as
part of a traditional package of brokerage services. See id. at
20,431. In 1975, however, the SEC eliminated the requirement
that broker-dealers charge only fixed commissions for brokerage
services. See id. at 20,431 n.74. In the 1990s, broker-dealers
began to take advantage of the change by offering their
customers fee-based brokerage accounts as an alternative to
commissions. According to the SEC, these accounts provide
customers with the same traditional package of brokerage
services, but instead of paying a commission on each trade, a
customer pays either a fixed fee or a fee based on the amount of
assets in the account. See id. at 20,425.
In 1999, in response to these developments, the SEC first
proposed what would become the final rule now before us. The
Commission concluded that “these new fee-based brokerage
programs . . . were not fundamentally different from traditional
brokerage programs” and that broker-dealers had simply “re-
priced traditional brokerage programs rather than . . . created
advisory programs.” Id. at 20,426. Although fee-based brokers
receive “special compensation” in the technical sense that they
are paid in a form other than brokerage commissions, such
14
brokers provide investment advice only as a part of a traditional
package of brokerage services, just like the brokers who have
always been exempt from the IAA. And unlike the broker-
dealers who Congress intended to include within the Act’s
coverage via subsection (C)’s bar on “special compensation,”
the subset of broker-dealers exempted by the final rule do not
charge a separate fee or separately contract for investment
advice. (The final rule expressly excludes such broker-dealers
from the exception. See 17 C.F.R. § 275.202(a)(11)-1(b)(1).)
Because the SEC reasonably believed that an exception for the
broker-dealers covered by the final rule -- a group that did not
exist in 1940 -- would serve the same purpose as the exception
that Congress created when it passed the IAA, the Commission
reasonably concluded that its final rule was consistent with the
intent of paragraph 11. As the Commission explained:
There is no evidence that the “special compensation”
requirement was included in section 202(a)(11)(C) for
any purpose beyond providing an easy way of
accomplishing the underlying goal of excepting only
advice that was provided as part of the package of
traditional brokerage services. In particular, neither the
legislative history of section 202(a)(11)(C) nor the
broader legislative history of the Advisers Act as a
whole suggests that, in 1940, Congress viewed the
form of compensation for the services at issue --
commission versus fee-based compensation -- as
having any independent relevance in terms of the
advisory services the Act was intended to reach.
Certain Broker-Dealers, 70 Fed. Reg. at 20,431 (footnote
omitted).
The SEC also reasonably explained why its new exception
was consistent with the IAA’s more general purpose of
15
preventing fraud and misrepresentation. As the Commission
points out, broker-dealers who are exempt from the IAA are not
free from oversight, but instead are regulated under the
Securities Exchange Act of 1934 and by self-regulatory
organizations such as the New York Stock Exchange. Id. at
20,424. That regulation, the SEC explained, “provide[s]
substantial protections for broker-dealer customers.” Id. at
20,433. To supplement that regulation, the final rule further
provides that broker-dealers cannot qualify for the exception
unless they make specified disclosures about potential conflicts
of interest to their customers. 17 C.F.R. § 275.202(a)(11)-
1(a)(1).
Moreover, a major impetus to promulgation of the rule was
the SEC’s concern that commission-based compensation has
conflict-of-interest and fraud potential of its own. Charging a
commission for each transaction, the SEC said, gives brokers an
incentive “to churn accounts, recommend unsuitable securities,
and engage in aggressive marketing of brokerage services.”
Certain Broker-Dealers, 70 Fed. Reg. at 20,425. Under fee-
based brokerage programs, by contrast, “compensation no
longer depends on the number of transactions . . . , thus reducing
incentives . . . to churn accounts, recommend unsuitable
securities, or engage in high-pressure sales tactics.” Notice of
Proposed Rulemaking, 64 Fed. Reg. 61,226, 61,228 (Nov. 10,
1999). The SEC feared that, if fee-based brokers remained
subject to the IAA’s administrative burdens while commission-
based brokers did not, a salutary evolution toward the former
would be discouraged. See Certain Broker-Dealers, 70 Fed.
Reg. at 20,426.
The Financial Planning Association and its amici advance
a host of reasons to question the SEC’s judgment that the fee-
based brokerage exception will not undermine investor
protection. Whatever the validity of those concerns, they reflect
16
policy disputes of the type that Chevron counsels us to leave to
agency resolution. As the Supreme Court emphasized:
When a challenge to an agency construction of a
statutory provision, fairly conceptualized, really
centers on the wisdom of the agency’s policy, rather
than whether it is a reasonable choice within a gap left
open by Congress, the challenge must fail. In such a
case, federal judges -- who have no constituency --
have a duty to respect legitimate policy choices made
by those who do.
Chevron, 467 U.S. at 866.
IV
The SEC’s interpretation of the Investment Advisers Act is
“a reasonable interpretation of an ambiguous statute.”
Christensen v. Harris County, 529 U.S. 576, 586-87 (2000).
This is not to suggest that my colleagues’ interpretation is
unreasonable, but only to acknowledge that when there are two
reasonable interpretations of a statutory provision, a court must
bow to the “interpretation made by the . . . agency.” Chevron,
467 U.S. at 844. Doing so, I respectfully dissent from the
opinion of the court.