John Doe v. Securities and Exchange Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 8, 2025 Decided April 17, 2026
Reissued May 1, 2026
No. 23-1124
J OHN DOE,
P ETITIONER
v.
S ECURITIES AND EXCHANGE C OMMISSION,
R ESPONDENT
On Petition for Review of an Order
of the Securities and Exchange Commission
Stephen M. Kohn argued the cause for petitioner. With
him on the briefs were Kayla Svihovec and Todd Yoder.
David K. Colapinto entered an appearance.
Stephanie K. Glaberson was on the brief for amicus curiae
the Center on Privacy & Technology at Georgetown Law in
support of petitioner.
Margaux Ewen was on the brief for amici curiae the
Signals Network, et al. in support of petitioner.

-- 1 of 19 --

2
Joseph Slaughter and Neil L. Henrichsen were on the brief
for amici curiae Journalists, Editors, News Publishers, and
Press Organizations in support of petitioner.
Duane R. Gibson and Will Kramer were on the brief for
amici curiae RM, et al. in support of petitioner.
Emily True Parise, Senior Appellate Counsel, U.S.
Securities and Exchange Commission, argued the cause for
respondent. With her on the brief was Tracey A. Hardin,
Solicitor.
Before: P ILLARD and P AN, Circuit Judges, and R OGERS ,
Senior Circuit Judge.
Opinion for the Court by Senior Circuit Judge R OGERS .
R OGERS , Senior Circuit Judge: On the basis of
information that John Doe disclosed about the misconduct of a
large Company to the news media, the Securities and Exchange
Commission successfully prosecuted an enforcement action
against the Company. During the Commission’s investigation,
Congress and Commission staff contacted Doe for interviews
and information about the disclosures to the news media, and
Doe repeatedly obliged. On the basis of the same information,
Doe filed an application with the Commission for a
whistleblower award under the Securities Exchange Act of
1934, which authorizes the Commission to make monetary
awards to individuals who “voluntarily” provide “original
information” to the Commission, 15 U.S.C. § 78u-6(a), (b)(1);
see 17 C.F.R. § 240.21F-4 (“Rule 21F-4”). The Commission
denied Doe’s application for an award because his submission
was made only after the Commission had contacted him and
thus was not “voluntarily” submitted under the statute and its

-- 2 of 19 --

3
rules. Doe’s submission was also untimely. The Commission
summarily denied Doe’s request for exemptions.
Doe petitions for review. He contends that instead of
applying the plain statutory text and its precedent, the
Commission acted in an arbitrary and capricious manner
because its interpretation of “voluntarily” in Rule 21F-4(a) is
contrary to common sense and the plain meaning and purpose
of the term as well as dictionary definitions. Also, he
maintains that his submission was timely. Alternatively, Doe
contends that the denial of his request for exemptions was
insufficiently explained and contrary to Commission
precedent. Further, withholding financial rewards from
whistleblowers due to their speech to the press, Doe maintains,
raises questions under the First Amendment to the Constitution.
Petitioner’s Br. 24–28.
For the following reasons, Doe’s challenges to the
Commission’s determination of his non-entitlement to a
whistleblower award and to the Commission’s interpretation of
the statutory term “voluntarily” are unpersuasive. His First
Amendment objection is based on a false premise. Doe’s
challenge to the Commission’s denial of his request for an
exemption from Rule 21F-4(a) is persuasive, however. In
denying Doe’s request for exemption from the voluntariness
requirements, the Commission abused its discretion by
perfunctorily restating the statutory policy goals in response to
a credible showing that granting an exception would be
“necessary or appropriate in the public interest,” 15 U.S.C.
§ 78mm(a)(1), and consistent with the Commission’s grant of
exemptions in the past. Accordingly, the court denies the
petition in part and grants it in part, vacating the denial of Doe’s
request for exemptions and remanding the request to the
Commission for reconsideration.

-- 3 of 19 --

4
I.
In the aftermath of the 2008 financial crisis, Congress
enacted the Dodd-Frank Wall Street Reform and Consumer
Protection Act (“Dodd-Frank Act”), PUB. L. NO. 111-203, 124
Stat. 1376 (2010) (codified in scattered sections of the U.S.
Code.), “to promote stability in the U.S. financial system.”
Nelson v. SEC, 138 F.4th 514, 517 (D.C. Cir. 2025). The
Dodd-Frank Act amended the Securities Exchange Act and,
among other things, created a whistleblower program to
provide incentives for individuals “with inside knowledge to
come forward and assist the Government to identify and
prosecute persons who have violated securities laws and
recover money for victims of financial fraud.” S. REP. NO.
111-176, at 110 (2010). Recognizing that whistleblower
programs deliver superior outcomes compared to other means
of oversight, Congress intended the whistleblower “program to
be used actively with ample rewards to promote the integrity of
the financial markets.” Id. at 110–12.
Section 21F of the Securities Exchange Act provides, as
relevant, that a whistleblower is eligible for an award if the
individual “voluntarily provided original information to the
Commission that led to the successful enforcement of the
covered judicial or administrative action” that “results in
monetary sanctions exceeding $1,000,000.” 15 U.S.C. § 78u-
6(a), (b)(1). The Commission is to “issue such rules and
regulations as may be necessary or appropriate to implement”
the whistleblower program and had discretion to determine
“whether, to whom, or in what amount to make awards.” Id.
§§ 78u-6(f), (j), 78mm(a)(1). In adopting rules, see Securities
Whistleblower Incentives and Protections, 76 Fed. Reg. 34,300
(June 13, 2011) (“Final Rule”), the Commission defined
“voluntarily,” 15 U.S.C. § 78u-6(b)(1), to require an individual
to “provide your submission before a request, inquiry, or

-- 4 of 19 --

5
demand that relates to the subject matter of your submission is
directed to you or anyone representing you . . . [b]y the
Commission” or other designated investigative authorities,
including Congress, any other authority of the federal
government, a state Attorney General or securities regulatory
authority, or self-regulatory organizations. 17 C.F.R.
§ 240.21F-4(a)(1) (emphasis added). A whistleblower’s
“submission of information to the Commission will be
considered “voluntarily” made if the whistleblower
“voluntarily provided the same information” to one of the listed
authorities “prior to receiving a request, inquiry, or demand
from the Commission.” Id. § 240.21F-4(a)(2) (emphasis
added). The manner and form of submission was addressed in
Rule 21F-9, requiring, for eligibility to receive a whistleblower
award, submission of information on a “Tip, Complaint, or
Referral” form (“Form TCR”) within thirty days of first
providing the original information, id. § 240.21F-9(a), (e).
The Commission does not dispute that Doe provided
“original information” that led to an enforcement action
resulting in more than $1 million in monetary sanctions.
Neither does the Commission contest Doe’s position that he
would be entitled under its precedent to an exemption from the
manner and form requirements under Rule 21F-9 were he
found to be “an otherwise qualified whistleblower.”
Petitioner’s Br. 50 (citation omitted) & n.10; Respondent’s Br.
49 n.11. Rather, the Commission disputes Doe’s eligibility
for a whistleblower award because his submission of
information about the Company’s misconduct was not made
“voluntarily” since it occurred after the Commission and
certain other authorities contacted him. Respondent’s Br. 22,
24; Order Determining Whistleblower Award Claims at 8–10,
Exchange Act Release No. 97228 (Mar. 31, 2023) (“Award
Order”).

-- 5 of 19 --

6
Based on the Enforcement staff’s review of the news
reports relying on information from Doe about potential
misconduct by the Company, the Commission opened an
investigation. A few days after the disclosure, a congressional
committee wrote to request that Doe appear for an interview
and provide documents in connection with the reported
misconduct; Doe obliged on several occasions. In the
following months, the Commission contacted Doe for the first
time to request that its staff be included in an interview Doe
was scheduled to have with other enforcement agencies.
Several months after the initial disclosure to the media, Doe
had his first interview with the Commission’s Enforcement
staff. Thereafter, until Doe hired new counsel in connection
with the Commission’s whistleblower proceedings, Doe did
not respond to further requests for information or contact the
Commission. According to Doe, only new counsel mentioned
his potential eligibility for a whistleblower award. More than
eleven months after the first contact by the Commission staff,
Doe submitted information on Form TCR. The Commission
subsequently interviewed Doe again, and he submitted
supplemental information on Form TCR.
Later that year, the Commission posted on its public
website a Notice of Covered Action relating to its enforcement
action against the Company that was the subject of Doe’s
submission. This triggered a ninety-day period for eligible
applicants to file applications for whistleblower awards. See
17 C.F.R. § 240.21F-10(a). In response, Doe submitted an
application for an award based on the original information he
provided to the Commission about the Company’s misconduct.
The Claims Review staff issued a Preliminary Determination
(“PD”) recommending that Doe’s application for an award be
denied: (1) Doe’s submission was not “voluntarily” made
under Section 21F of the statute and Rules 21F-3 and 21F-
4(a)(1), because “[b]efore submitting information to the

-- 6 of 19 --

7
Commission,” Doe “was contacted initially by the Commission
staff and other federal agencies and regulators in the underlying
investigation,” and (2) Doe’s submission of information about
the Company on the Form TCR was untimely. PD at 2 & nns.
3, 5.
Doe contested the reasons for the recommended denial.
He argued that the Commission’s definition of “voluntarily”
conflicts with the statutory meaning of an “original source” of
the information, 15 U.S.C. § 76u-6(a)(3). He also argued that
he had timely submitted the information on the required form
upon learning of his statutory rights. In the alternative, Doe
requested that the Commission to exercise its exemption
authority to waive the “voluntarily” and manner and form
requirements and grant him an award: (1) his initially
disclosing the Company’s misconduct “to the news media,
cooperating with the subsequent investigations, [and] testifying
in public proceedings . . . achieved the precise aim of the”
Dodd-Frank Act, and (2) the Commission had granted waivers
in similar circumstances in the past. Appeal and Written
Response (“Admin. Appeal”) at 19–20.
The Commission affirmed the denial, elaborating on the
reasons in the PD in response to Doe’s objections. In a
footnote, the Commission denied Doe’s request for an
exemption from the voluntariness requirement, stating:
One of the principal objectives of Section 21F of the
[Securities] Exchange Act is to promote effective
enforcement of the federal securities laws by
providing incentives for persons with knowledge of
misconduct to come forward and share their
information with the Commission. Granting an
exemption under these circumstances is inconsistent

-- 7 of 19 --

8
with the statutory purpose of incentivizing
whistleblowers to come forward early.
Award Order at II.A.i. & n.26 (citations and quotation marks
omitted). As to the timeliness of Doe’s submission under
Rule 21F-9, the Commission concluded that “[t]he
circumstances here do not warrant invoking [a] Section 36(a)
[exemption]” under the Securities Exchange Act. Id. at 11
n.29. Doe petitions the court for review.
II.
The Commission’s decision to grant or deny a
whistleblower award may be set aside by the court only if it is
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” 5 U.S.C. § 706(2)(A); see 15 U.S.C.
§ 78u-6(f). The court, however, is to exercise “independent
judgment in deciding whether an agency has acted within its
statutory authority.” Loper Bright Enters. v. Raimondo, 603
U.S. 369, 412 (2024). By contrast, the court’s review of the
Commission’s denial of an exemption from the requirements
of a statute that Congress has assigned it to implement, is
“highly deferential”; the court may set aside the Commission’s
action only if “the agency’s reasons are so insubstantial as to
render that denial an abuse of discretion.” Copley Fund, Inc.
v. SEC, 796 F.3d 131, 135 (D.C. Cir. 2015) (quoting Universal
City Studios LLLP v. Peters, 402 F.3d 1238, 1242 (D.C. Cir.
2005)). The Commission’s factual findings are “conclusive”
when “supported by substantial evidence.” 15 U.S.C. §
78y(a)(4); Steadman v. SEC, 450 U.S. 91, 96 n.12 (1981).
Upon review, it suffices if the court “can discern the why and
wherefore” of the Commission’s denial of an exemption.
ICBC Corp. v. FCC, 716 F.2d 926, 929 (D.C. Cir. 1983)
(citation and quotation marks omitted).

-- 8 of 19 --

9
A.
Under Commission Rule 21F-4(a), “voluntarily”
submitted information is any information furnished to certain
federal and state authorities as well as self-regulatory
organizations with which the Commission coordinates
oversight and enforcement of securities laws, viz. “the Public
Company Accounting Oversight Board, or any self-regulatory
organization; or . . . Congress, any other authority of the
Federal government, or a state Attorney General or securities
regulatory authority.” 17 C.F.R. § 240.21F-4(a)(1)–(2).
That is, the Commission will treat “original information” as
“voluntarily” submitted if the whistleblower submits it to any
of these authorities “before a request, inquiry, or demand.” Id.
§ 240.21F-4(a)(1) (emphasis added). In proposing the Rule,
the Commission stated that “[t]his approach is consistent with
the statutory purpose of creating a strong incentive for
whistleblowers to come forward early with information about
possible violations of the securities laws rather than wait until
Government or other official investigators ‘come knocking on
the door.’” Proposed Rules for Implementing the
Whistleblower Provisions of Section 21F of the Securities
Exchange Act of 1934, 75 Fed. Reg. 70,488, 70,490 (Nov. 17,
2010) (quoting S. R EP . NO. 111-176, at 110).1
1. Commission Rule 21F-4(a) defines “Voluntary submission
of information,” stating:
(1) Your submission of information is made voluntarily
within the meaning of §§ 240.21F-1 through 240.21F-17
of this chapter if you provide your submission before a
request, inquiry, or demand that relates to the subject
matter of your submission is directed to you or anyone
representing you (such as an attorney):
(i) By the Commission;

-- 9 of 19 --

10
Doe nevertheless contends that the submission to the news
media of “original information,” 15 U.S.C. § 78u-6(a)(3),
(ii) In connection with an investigation, inspection,
or examination by the Public Company
Accounting Oversight Board, or any self-
regulatory organization; or
(iii) In connection with an investigation by
Congress, any other authority of the Federal
government, or a state Attorney General or
securities regulatory authority.
(2) If the Commission or any of these other authorities direct
a request, inquiry, or demand as described in paragraph
(a)(1) of this section to you or your representative first,
your submission will not be considered voluntary, and
you will not be eligible for an award, even if your
response is not compelled by subpoena or other
applicable law. However, your submission of
information to the Commission will be considered
voluntary if you voluntarily provided the same
information to one of the other authorities identified
above prior to receiving a request, inquiry, or demand
from the Commission.
(3) In addition, your submission will not be considered
voluntary if you are required to report your original
information to the Commission as a result of a pre-
existing legal duty, a contractual duty that is owed to the
Commission or to one of the other authorities set forth
in paragraph (a)(1) of this section, or a duty that arises
out of a judicial or administrative order.
17 C.F.R. § 240.21F-4(a) (June 13, 2011) (emphases added).

-- 10 of 19 --

11
qualifies as “voluntarily” providing it to the Commission, id.
§ 78u-6 (b)(1). Petitioner’s Br. 38. He points to the
Securities Exchange Act’s definition of “original information”
under which information may qualify as “original” if it is
“derived from the independent knowledge or analysis of a
whistleblower” and “not exclusively . . . from an allegation
made in a judicial or administrative hearing, in a governmental
report, hearing, audit, or investigation, or from the news
media” — so long as the whistleblower is “a source of the
information.” Id. § 78u-6(a)(3)(A), (C). Doe maintains,
therefore, that the statutory definition of “original information”
gives whistleblowers a “statutory right to disclose to the news
media.” Petitioner’s Br. 38 (capitalization modified). And
he contends that, in any event, the Commission acted arbitrarily
and capriciously in excluding the news media from the list of
entities in Rule 21F-4(a) to which whistleblowers could
“voluntarily” submit information. Id. 39–43.
Nothing in the text of the Securities Exchange Act
indicates that the list of entities in Rule 21F-4(a) should mirror
the statutory “original source” definition, and Doe cites no
source that commands such a relationship. The “original
information” and voluntariness requirements serve different
purposes. The requirement that the whistleblower’s
information is “original” does not address the manner in which
the information is to be submitted to the Commission (i.e.,
“voluntarily”); instead, it addresses the permissible sources of
that information. The two requirements are compatible: it
does not matter whether a whistleblower submits the original
information to the news media so long as the whistleblower
also submits the same information to the Commission (or one
of the proxies listed in Rule 21F-4(a)) before the Commission
(or proxy) contacts the whistleblower. 15 U.S.C. § 78u-
6(b)(1). Furthermore, Rule 21F-4(a) considers “voluntarily”
provided those disclosures the whistleblower makes to the

-- 11 of 19 --

12
Commission or to proxy self-regulatory and governmental
authorities with which the Commission has relationships and
cooperative arrangements producing referrals and sharing of
high-quality information about securities violations. See 76
Fed. Reg. at 34,307–09 & nns. 74 & 81. The news media lacks
such a formal relationship with the Commission. The
Commission, therefore, could reasonably conclude that making
a disclosure to the news media would not fulfill Dodd-Frank’s
“core objective” to “motivate people who know of securities
violations to tell the [Securities and Exchange Commission].”
Digit. Realty Tr., Inc. v. Somers, 583 U.S. 149, 162 (2018)
(emphasis omitted) (quoting S. R EP . No. 111-176, at 38).
Doe also contends that the regulatory definition of
“voluntary” must include disclosures initially made to the news
media because in enacting the “original information” carve-out
in the Dodd-Frank whistleblower program, 15 U.S.C. § 78u-
6(a)(3)(C), Congress “followed the precedent set when it
passed the [Internal Revenue Service (“IRS”)] whistleblower
law in 2006,” which allows for awards to whistleblowers who
disclosed original information regardless of whether they first
disclosed it to the news media. Petitioner’s Br. 39. Doe
points to the provisions in the IRS statute qualifying the
whistleblower for a discretionary award when the IRS
prosecutes an action based on “disclosures of specific
allegations . . . resulting from a judicial or administrative
hearing, from a governmental report, hearing, audit, or
investigation, or from the news media,” 26 U.S.C.
§ 7623(b)(2)(A), and for a mandatory award when the
“information . . . was originally provided by” the
whistleblower, id. § 7623(b)(2)(B).
That the Dodd-Frank whistleblower program was
“modeled after a successful IRS Whistleblower Program
enacted into law in 2006,” S. R EP . NO. 111-176, at 111, is not

-- 12 of 19 --

13
the same as the claim that the Dodd-Frank program imported
the entirety of the IRS Whistleblower Program’s requirements.
For instance, the IRS whistleblower program does not include
a voluntariness requirement, 26 U.S.C. § 7623(b), indicating
that when Congress included a voluntariness requirement in the
Dodd-Frank whistleblower program it intended to depart in that
provision from the IRS Whistleblower Program. Doe notes
that a 2006 policy statement acknowledging “[e]ffective
journalism complements the Commission’s efforts” was
quoted in the Commission’s enforcement manual, Petitioner’s
Br. 40 (quoting SEC Enforcement Manual at 39 (Nov. 28,
2017); the acknowledgement is consistent with the
Commission’s rules, which do not penalize media disclosures
made simultaneously with or after disclosures to the
Commission.
On appeal, Doe also contends that the “plain meaning” of
“voluntarily” in the Securities Exchange Act, 15 U.S.C. § 78u-
6(b)(1), which Congress did not define, means “[a]cting, or
done, of one’s own free will without valuable consideration . . .
or . . . any present legal obligation to do the thing done. . . .”
Petitioner’s Br. 32 (citation omitted) (quoting WEBSTER ’S
THIRD NEW INTERNATIONAL DICTIONARY 2564 (1981)
(definition 1(g)). So, in Doe’s view, the Commission’s
interpretation is contrary to the statute because it excludes any
“original information” that was “requested” even if the
individual who responds had no obligation to do so. Id. at 33.
Because Doe never raised this plain-meaning challenge to Rule
21F-4(a) before the Commission and offers no reasonable
explanation for not doing so, it is forfeit. 15 U.S.C.
§ 78y(c)(1); Springsteen-Abbott v. SEC, 989 F.3d 4, 7 (D.C.
Cir. 2021).
Doe’s plain-meaning argument before the Commission
was that the failure to include news media in the carve-out in

-- 13 of 19 --

14
Rule 21F-4(a) contravened the statutory text because the
definition of “original information” includes the news media.
Admin. Appeal at 5–13; contra Reply Br. 6–7. That argument
presumed the correctness of the Rule’s interpretation of
“voluntarily” as meaning unrequested or unprompted rather
than done willingly — the interpretation Doe challenges for the
first time on appeal. Doe failed to put the Commission “on
notice,” Nelson, 138 F.4th at 525, of this (other) plain-meaning
argument and does not offer a “reasonable ground for failure to
do so.” 15 U.S.C. § 78y(c)(1). Doe’s reliance on the
Supreme Court’s decision in 2024 in Loper Bright, Reply Br.
10 (citing 603 U.S. at 374, 400), is misplaced; the question of
whether the Commission’s interpretation will receive
deference by the court on appeal is irrelevant to Doe’s
arguments before the Commission. Absent due notice to the
Commission, Doe cannot pursue his (other) plain-meaning
argument on appeal.
Doe maintains that because the Commission has “made
known . . . its general views” on voluntariness, it would have
been futile to raise the issue before the Commission. Reply
Br. 8 (internal quotation marks omitted). He points to the
Order Determining Whistleblower Award Claims at 10 & n.21,
Exchange Act Release No. 84046, Whistleblower Award
Proceeding File No. 2018-11, (Sep. 6, 2018), where the
Commission rejected a whistleblower’s view that information
was submitted “voluntarily” because it was done “of [the
whistleblower’s] own free will[.]” Id. This court has held
that a litigant has “reasonable ground” for failure to exhaust
under 15 U.S.C. § 78y(c)(1) where doing so would have been
“clearly useless.” KPMG, LLC v. SEC, 289 F.3d 109, 118
(D.C. Cir. 2002) (quoting Randolph-Sheppard Vendors of Am.
v. Weinberger, 795 F.2d 90, 105–06 (D.C. Cir. 1986)). But,
“a mere losing position” is “insufficient” to meet that standard
where a litigant fails to specify circumstances showing why

-- 14 of 19 --

15
exhaustion would be futile. Id. Doe fails to meet this
standard.
First, the Commission’s rejection of another
whistleblower’s similar reading of the voluntariness
requirement in an unrelated award order is insufficient to show
that it would have been “clearly useless” for Doe to raise his
argument before the Commission. Second, it is unclear how
Doe could have known when he failed to exhaust that the
Commission would argue in Ross v. SEC, 34 F.4th 1114 (D.C.
Cir. 2022), against the position he now advances, so that
development cannot support his futility argument. Reply Br.
9, 14 (citing briefing in Ross). Third, Doe’s suggestion that
the Commission’s consideration of alternative definitions of
“voluntarily” during the rulemaking shows it “cannot claim to
have been surprised” by the challenges he makes on appeal or
“claim to not have had the chance to address them,” Reply Br.
7 (citing 75 Fed. Reg. at 70,490; 76 Fed. Reg. at 34,306 n.54),
fares no better. In his appeal of the Preliminary
Determination, Doe asserted that “the news media was the only
entity for which original information could be submitted that
was omitted from the so-called ‘knocking’ rules exception.
. . .” Id. at 6 (quoting Admin. Appeal at 12). That the
Commission considered the scope of its Rule is not the same as
considering the plain meaning of “voluntarily.” Doe’s
reliance on Blount v. SEC, 61 F.3d 938 (1995), is similarly
misplaced; this court held that a petitioner’s “general
constitutional objections” on a direct rulemaking challenge
were exhausted because the objections were not “in any salient
way different from the concerns raised [by others] and
considered during rulemaking.” Id. at 940–41.

-- 15 of 19 --

16
B.
Because the court affirms the denial of Doe’s petition on
the ground that his submission was not made “voluntarily,” and
the Commission has not contested Doe’s position that an
“otherwise qualified” applicant for a whistleblower award
would be exempted from the manner and form requirements of
Rule 21F-9, supra (citing Respondent’s Br. 49 n.1), the court
does not reach the Commission’s alternative untimeliness
ground for denial. See Ross, 34 F.4th at 1121.
C.
To Doe, the Commission “actions that disincentivize,
punish, or penalize expressions of speech without specific and
compelling justification raise First Amendment concerns as
such actions can create a ‘chilling effect’ on future speech.”
Petitioner’s Br. 55. After all, the government “may not deny
a benefit to a person on a basis that infringes . . .
constitutionally protected interests — especially, interest in
freedom of speech.” Perry v. Sindermann, 408 U.S. 593, 597
(1972). Specifically, Doe contends that the Commission’s
rules “[b]y denying awards to whistleblowers based on the
initial reporting of their allegations to the press,” create “a
chilling effect on the willingness of future whistleblowers to
work with the news media.” Petitioner’s Br. 56.
But whether Doe had initially disclosed the information
about the Company’s misconduct to the media was irrelevant
to the Commission’s determination of whether Doe’s
submission of an application for a whistleblower award was
“voluntarily” made under the Securities Exchange Act and the
Final Rule. The Commission’s stated rationale in rejecting
Doe’s conflation of the distinct statutory requirements of
coming forward “voluntarily” and providing “original

-- 16 of 19 --

17
information” is founded on statutory text and purpose. Award
Order at II.A.i. & n.26. The Commission denied Doe’s
submission because of his failure to “voluntarily” tell the
Commission, not because he told the press. Nothing in the
statute or rules prevented him from doing both at the same time
or telling the Commission first, and then the press. Because
the Commission denied Doe’s whistleblower application for
failure to submit the “original information” to the government
before the government contacted him, Doe’s constitutional
challenge fails.
III.
Section 36(a) of the Securities Exchange Act grants the
Commission authority to exempt whistleblowers from
compliance with statutory provisions if “such exemption is
necessary or appropriate in the public interest, and is
consistent with the protection of investors.” 15 U.S.C. §
78mm(a)(1). Doe contends that the Commission abused
its discretion in denying his request for an exemption from
the voluntariness requirement by failing to provide an
adequate explanation and to follow its precedent
“provid[ing] exemptions in cases involving far less
voluntary disclosures.” Petitioner’s Br. 27.
Before the Commission, Doe adduced a wealth of credible
information suggesting that granting an exemption would be
consistent with “public interest” and “protection of investors.”
15 U.S.C. § 78mm(a)(1). Indeed, the Commission does
not dispute that Doe provided the critical original
information on which the Commission relied in pursuing a
significant and successful enforcement action. Doe met with
the Commission on two occasions, and in advance the
Commission staff emphasized that their requests
sought his “voluntary” cooperation. Application for
Award (attaching emails between the Commission and
Doe’s Counsel) at 3–4.

-- 17 of 19 --

18
In challenging the Preliminary Determination, Doe pointed
out that “[b]y disclosing the [misconduct] to the news media,
cooperating with the subsequent investigations, testifying in
public proceedings, and updating the government with newly
discovered critical information, [he] achieved the precise aim
of the” Dodd-Frank Act. Admin. Appeal at 20. Doe also
argued that the denial of an award in these circumstances would
discourage others from coming forward, defeating the public
interest. Id. at 18. Furthermore, Doe identified other cases in
which the Commission waived the voluntariness requirement.
Petitioner’s Br. 44–45 (citing Order Determining
Whistleblower Award Claim at 1, Exchange Act Release No.
72727 (July 31, 2014) & Order Determining Whistleblower
Award Claim at 2, Exchange Act Release No. 86010 (June 3,
2019)).
Despite the substantial evidence of Doe’s cooperation, the
Commission summarily disposed of his exemption request in a
footnote, stating only that granting his request for an award
would be “inconsistent with the statutory purpose of
incentivizing whistleblowers to come forward early” and
“share their information with the Commission.” Award Order
at II.A.i. n.26 (internal quotation marks omitted). The
Commission did not address its precedent that Doe identified.
Merely “[s]tating that [something, such as pre-contact
submission] is an existing requirement does not answer
. . . argument that this is one of those circumstances in which it
should be waived.” Gas Transmission Nw. Corp. v. FERC,
363 F.3d 500, 503 (D.C. Cir. 2004). Because the
Commission’s statement of general policy goals does not
enable the court to determine “the why and wherefore” of the
Commission’s denial of Doe’s request for exemptions, ICBC
Corp., 716 F.2d at 929 (citation omitted), its reasoning is “so

-- 18 of 19 --

19
insubstantial” that it fails even the highly deferential standard
in Copley Fund, Inc., 796 F.3d at 135.
The Commission may not need to address every argument
and all factual circumstances of every application for a
whistleblower award. But where the Commission receives an
application for an award based on the submission of
information leading to a significant and successful enforcement
action by the Commission, and the applicant even points to
examples of the Commission’s past grants of such exemptions,
it is not enough for the Commission to restate general policy
goals underlying the requirements the applicant apparently
failed to meet. See BellSouth Corp. v. FCC, 162 F.3d 1215,
1224–25 (D.C. Cir. 1999). The Commission did not address
Doe’s arguments that he submitted original information that led
to its substantial enforcement success and that he cooperated
with the Commission and other regulatory authorities, much
less explain why Doe’s request was less worthy of an award
than others in which the Commission exercised its exemption
authority. Green Country Mobilephone, Inc. v. FCC, 765 F.2d
235, 237–38 (D.C. Cir. 1985).
Accordingly, the court denies the petition in part and grants
the petition in part, vacating the denial of Doe’s request for
exemptions and remanding the request to the Commission for
reconsideration and an adequate explanation of its
determination.

-- 19 of 19 --