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Waiting For The SEC . . .

Do deadlines really matter?  The answer is - "it depends".

At the Civil War military prison at Camp Sumter near Andersonville, Georgia, the "dead line" clearly mattered - as reflected in the Secretary of War's report of the post bellum trial of the camp's commander, Heinrich "Henry" Wirz:

And he, the said Wirz, still wickedly pursuing his evil purpose, did establish and cause to be designated within the prison enclosure containing said prisoners a "dead line," being a line around the inner face of the stockade or wall enclosing said prison and about twenty feet distant from and within said stockade; and so established said dead line, which was in many places an imaginary line, in many other places marked by insecure and shifting strips of [boards nailed] upon the tops of small and insecure stakes or posts, he, the said Wirz, instructed the prison guard stationed around the top of said stockade to fire upon and kill any of the prisoners aforesaid who might touch, fall upon, pass over or under [or] across the said "dead line;" . . .

Trial of Henry Wirz : letter from the Secretary of War ad interim, in answer to a resolution of the House of April 16, 1866, transmitting a summary of the trial of Henry Wirz (1868)See also Rules and Regulations of the Prison (1865) ("No prisoner must cross the dead line, nor speak to any sentinel on post nor attempt to buy or sell anything to a sentinel.  The sentinel having orders to fire on anyone crossing the dead line or attempting to speak to or trade with them.").

When Congress enacted the Dodd-Frank Wall Street Reform Act two years ago, it imposed many deadlines on the Securities and Exchange Commission.  In Section 1504, Congress ordered the SEC to issue final rules requiring disclosure of payments by resource extraction issuers within 270 days.  The SEC proposed rules in December 2010 and its website currently estimates that rules will be adopted in the first half of this year.  This means that the SEC has missed Congress' deadline by over a year.

Unlike Vladimer and Estragon, Oxfam America has grown over tired of the wait.  In April, EarthRights International sent this letter on behalf of Oxfam America to the SEC asking (demanding) that the SEC schedule a vote on a final rule implementing Section 1504.  The letter threatens legal action if the SEC fails to do so by May 16, 2012.  Implicit in this threat is the idea that the SEC will be more heedful of a court order than a congressional one.

Is the Congressional deadline enforceable?  Oxfam America cites Section 706(1) of the Administrative Procedure Act (5 U.S.C. § 706(1)).  That statute prescribes the scope of judicial review and states that a reviewing court shall "compel agency action unlawfully withheld or unreasonably delayed".  However, before there can be judicial review, there must be standing.  If the SEC doesn't issue a final rule soon, the first challenge for Oxfam America (or anyone else) is likely to be whether they can meet the requirements of both constitutional and prudential standing.

In general, constitutional standing requires that a plaintiff show injury, causation and redressability.  With respect to prudential standing, the APA requires that the plaintiff be within the "zone of interests" of the statute claimed to have been violated (i.e., Section 1504 of the Dodd-Frank Act).  5 U.S.C. § 702 ("A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of the relevant statute, is entitled to judicial review thereof.")

Without standing, the federal courts are without jurisdiction and this could be a case in which there is "nothing to be done".

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30172DBAB0084D3A8F39D7AF0A8E79BC.ashx Keith Paul Bishop
Partner at Allen Matkins
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