Casey H. Nelson, (claimant No. 4) v. Securities and Exchange Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2024 Decided April 25, 2025
Reissued May 30, 2025
No. 22-1316
CASEY H. NELSON, (CLAIMANT NO. 4),
PETITIONER
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
On Petition for Review of a Final Order
of the Securities & Exchange Commission
Richard P. Gallena, appointed by the court, argued the
cause as amicus curiae in support of petitioner. On the briefs
were Anthony F. Shelley, Dawn E. Murphy-Johnson, and Surur
Fatema Yonce, appointed by the court.
John R. Rady, Appellate Counsel, U.S. Securities and
Exchange Commission, argued the cause for respondent. With
him on the briefs were Megan Barbero, General Counsel,
Michael A. Conley, Solicitor, and Stephen G. Yoder, Senior
Appellate Counsel.

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Before: HENDERSON, MILLETT, and CHILDS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge CHILDS.
Opinion concurring in the judgment by Circuit Judge
HENDERSON.
CHILDS, Circuit Judge: Casey Nelson petitioned for
review of an order of the Securities and Exchange Commission
allocating whistleblower awards related to a successful
enforcement action for securities law violations. Nelson
challenges the eligibility of a group of three other individuals
who received an award for their contribution to the
enforcement action.
This Court received Nelson’s petition for review seven
days after the statutory filing deadline, and therefore his
petition is untimely. Nevertheless, the statute does not bar
equitable tolling. Assuming that Nelson’s particular
circumstances warrant an equitable exception to the deadline,
we consider his petition on the merits. We conclude the
Commission’s order was not arbitrary and capricious and deny
the petition.
I.
A.
Following the 2008 financial crisis, Congress enacted the
Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd-Frank) to promote stability in the U.S. financial system.
See Digit. Realty Tr., Inc. v. Somers, 583 U.S. 149, 155 (2018).
Dodd-Frank amended the Securities Exchange Act of 1934 (the

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Exchange Act) to establish a new whistleblower program for
individuals or groups of individuals who report information
about securities law violations to the Commission. See 15
U.S.C. § 78u-6(a)(6), (b)(1).
Dodd-Frank instituted monetary awards to incentivize
reporting. To be eligible to receive a monetary award, a
whistleblower must “voluntarily provide[] original information
to the Commission that le[ads] to the successful enforcement
of [a] covered judicial or administrative action.” Id. § 78u-
6(b)(1). Original information “is derived from the independent
knowledge or analysis of a whistleblower[;]” is not “known to
the Commission from any other source, unless the
whistleblower is the original source of information[;]” and is
not “exclusively derived from an allegation made in a judicial
or administrative hearing, in a governmental report, hearing,
audit, or investigation or from the news media, unless the
whistleblower is a source of the information.” Id. § 78u-
6(a)(3).
Commission regulations further clarify what constitutes
original information by defining “independent knowledge” and
“independent analysis.” Independent knowledge is “factual
information in [the whistleblower’s] possession that is not
derived from publicly available sources.” 17 C.F.R.
§ 240.21F-4(b)(2). Independent analysis is the
whistleblower’s “own analysis”—meaning the
whistleblower’s “examination and evaluation of information
that may be publicly available, but which reveals information
that is not generally known or available to the public.” Id.
§ 240.21F-4(b)(3).
In certain circumstances, individuals are barred from
receiving awards if their claims are based on information

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obtained in connection with audits. Under the auditor
exclusion, individuals are ineligible if they “gain[] the
information through the performance of an audit of financial
statements required under the securities laws” and if their
submissions are “contrary to” the reporting procedures set out
in the Exchange Act for auditors who uncover illegal acts while
conducting an audit. See 15 U.S.C. § 78u-6(c)(2)(C); id. § 78j-
1.
If multiple whistleblowers are eligible to receive an award
for a single enforcement action, the Commission determines
the amount each whistleblower receives. See 17 C.F.R.
§§ 240.21F-3(a), 240.21F-5(c). The Commission’s Claims
Review Staff (CRS) conducts an initial review of
whistleblower award claims and issues a preliminary
determination of which parties may be eligible, as well as the
appropriate award amount for each eligible party. Id.
§ 240.21F-10(d). A claimant may contest the CRS’s
preliminary determination by submitting a written response to
the Office of the Whistleblower “setting forth the grounds for
[the claimant’s] objection.” Id. § 240.21F-10(e). The
Commission then reviews the preliminary determination and
issues a final order. Id. § 240.21F-10(h). Under Section 21F(f)
of the Exchange Act, a claimant may seek judicial review of
“[a]ny . . . determination, except the determination of the
amount of an award” by filing a petition with the appropriate
court of appeals “not more than 30 days after the determination
is issued by the Commission.” 15 U.S.C. § 78u-6(f).
B.
Nelson’s petition stems from a successful enforcement
action against a company for securities law violations. In that
action, the Commission alleged that the company failed to

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disclose its process for reporting losses, effectively
understating its total losses. The company and the Commission
reached a settlement.
After the settlement was finalized, the Commission’s
Office of the Whistleblower posted a “Notice of Covered
Action” inviting claims for whistleblower awards. Nelson
submitted a claim based on his contributions to the action.
Three individuals (the Joint Claimants) also filed requests for
awards, which were considered together as a joint claim.
The CRS issued a preliminary determination
recommending that the Commission grant monetary awards to
Nelson and to the Joint Claimants. The Preliminary
Determination was informed by a declaration in the record
from one of the primary enforcement attorneys, Christopher W.
Ahart. The declaration detailed the Joint Claimants’ and
Nelson’s contributions to the action.
The CRS determined that the Joint Claimants presented
original information based on their independent knowledge and
independent analysis and that they were not ineligible under the
auditor exclusion. The CRS also determined that Nelson
presented original information based on his independent
analysis.
The Joint Claimants did not contest the Preliminary
Determination, but Nelson did. Nelson argued that he was the
sole eligible whistleblower who presented original information
to the Commission. He contended that the Joint Claimants
merely repackaged his original analysis, which he had
“float[ed]” in a research publication before the Joint Claimants
made their submission to the Commission. J.A. 120–22.

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Nelson did not identify the auditor exclusion in his objections
to the Preliminary Determination.
The Commission’s Final Order adopted the CRS’s
recommendation that both Nelson and the Joint Claimants were
eligible to receive awards. The Commission concluded that
Nelson provided original information that “significantly
contributed to the success” of the enforcement action. J.A. 255.
The Commission further concluded that the Joint Claimants
also provided original information, including by submitting
information that prompted Enforcement staff to look into new
conduct and by substantially assisting the staff during the
course of its investigation.
The Commission also rejected Nelson’s allegation that the
Joint Claimants merely repackaged his original analysis,
finding instead that the Joint Claimants’ submission contained
non-public information not included in the research
publication. To support the Commission’s Final Order, Ahart
submitted a supplemental declaration, clarifying that the Joint
Claimants provided internal documents to the Commission,
separate from the publicly available information.
C.
The Final Order issued on November 4, 2022. Under
Section 21F(f) of the Exchange Act, Nelson was required to
file his petition for review by December 5, 2022. See 15 U.S.C.
§ 78u-6(f); Fed. R. App. P. 26(a)(1)(C). Nelson submitted an
affidavit recounting his alleged attempts to file his petition on
that day.
Proceeding pro se, on the morning of December 5, Nelson
accessed the D.C. Circuit website to find out how to file his

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petition electronically. Nelson specifically reviewed the
guidance regarding filings by pro se parties. Even after reading
the guidance, he was unaware that pro se parties are required
to file petitions in paper unless granted permission to file
electronically via the Court’s Electronic Case Filing (ECF)
System.
Assuming he could file his petition electronically, Nelson
navigated to the Public Access to Court Electronic Records
(PACER) “Login Links” page. In connection with a separate
federal case in a district court, Nelson had previously created a
“Case Search Only” individual PACER account. That account
allowed Nelson to view docket materials, but it did not give
him permission to file documents electronically. On the Login
Links page, Nelson found instructions directing him to upgrade
his individual PACER account so that he could make filings
electronically. Nelson submitted a request to upgrade his
account and register as an electronic filer (E-filer). The
PACER system, however, rejected his request.
Having failed to register as an E-filer, Nelson then called
the telephone number listed on the D.C. Circuit’s website for
“Clerk’s Office General Information.” Nelson spoke to an
individual whom he understood to be employed by the Clerk’s
Office and asked why his request was rejected. According to
Nelson, the individual informed him that as a pro se petitioner
he was required to submit filings in paper. Because Nelson was
in Dallas, Texas, at the time, he was unable to personally
deliver his petition to the Clerk’s Office in Washington, D.C.
Nelson claims that the individual suggested that Nelson could
send his petition by mail to the Clerk’s Office. On the
afternoon of December 5, Nelson mailed his petition. The
Clerk’s Office received Nelson’s petition on December 12,
2022.

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The Commission moved to dismiss Nelson’s petition as
untimely, and Nelson moved for summary reversal of the Final
Order. A special panel of this Court denied Nelson’s motion
and referred the Commission’s motion to the merits panel. The
special panel appointed counsel as amicus curiae to present
arguments in favor of Nelson’s position and instructed the
parties to address whether equitable tolling of a statutory
deadline is a threshold issue that can be resolved prior to a
finding of jurisdiction.1
II.
We first consider whether Nelson’s petition is timely. The
Clerk of Court received the petition seven days after the
statutory deadline. Nelson contends that, under the Federal
Rules of Appellate Procedure (FRAP), we must accept his
petition as timely. Nelson’s argument is unavailing.
The Federal Rules afford pro se petitioners some
solicitude when making filings before a court. Unlike seasoned
attorneys, pro se petitioners may be unfamiliar with the details
of a given court’s requirements of form and process.
Accordingly, “[p]ro se litigants are allowed more latitude than
litigants represented by counsel to correct defects in service of
process and pleadings.” Moore v. Agency for Int’l Dev., 994
F.2d 874, 876 (D.C. Cir. 1993).
Nonetheless, the Federal Rules balance the consideration
extended to pro se petitioners with fairness to all parties and
1 This Court appointed Anthony F. Shelley as amicus curiae to argue
in support of Nelson’s position in this case. He and his colleagues
have well discharged their duty, and the Court is grateful for their
work.

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the need for effective management of court dockets. This
balance is reflected in FRAP 25’s approach to electronic filings
by pro se petitioners. FRAP 25(a)(2) permits a pro se
petitioner to file electronically, but “only if allowed by court
order or by local rule.” Fed. R. App. P. 25(a)(2)(B)(ii).
The requirement that pro se petitioners seek leave before
making electronic filings helps ensure that they are not placed
at a disadvantage. A court may need to consider whether
petitioners have the technological tools not just to submit but
also to receive filings electronically. This inquiry is
particularly important, as registration as an E-filer “constitutes
consent to electronic service of all documents.” D.C. Cir. R.
25(f).
Our circuit rules reflect FRAP 25(a)(2)’s approach to
electronic filings by pro se petitioners. Circuit Rule 25(c)
provides that “[a] party proceeding pro se must file documents
in paper form with the clerk and must be served with
documents in paper form unless the pro se party has been
permitted to register as an [E-]filer.” D.C. Cir. R. 25(c)(1).
Moreover, to register as an E-filer, a pro se petitioner “must
file a motion in this court.” D.C. Cir. R. 25(b)(2). Nelson did
not seek leave to file electronically, as required by FRAP
25(a)(2) and Circuit Rule 25.2
2 Circuit Rules provide an alternative for pro se litigants who have
not received leave to file electronically but need to make an
emergency filing. Pursuant to Circuit Rule 25(g), “In emergencies
or other compelling circumstances . . . the [Clerk of Court] may
authorize that papers be filed with the court through facsimile
transmission or email.” D.C. Cir. R. 25(g). Petitioners may do so

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Despite Nelson’s argument to the contrary, Circuit Rule
25(c)’s requirement that pro se petitioners seek leave to file
electronically does not run afoul of FRAP 47. FRAP 47
stipulates that “[a] local rule imposing a requirement of form
must not be enforced in a manner that causes a party to lose
rights because of a nonwillful failure to comply with the
requirement.” Fed. R. App. P. 47(a)(2). Nelson contends that
enforcement of Circuit Rule 25(c) would lead to a deprivation
of his right to file a petition. But Circuit Rule 25(c) does not
impose a mere “requirement of form” on the petition. It
establishes a separate, threshold step at which a party must file
a motion and the court must make a determination that
electronic filing is appropriate. Nelson cannot, therefore,
invoke FRAP 47 to limit Circuit Rule 25(c).
Nelson further contends that even if his mailed petition
was not timely, he did make a timely electronic filing—his
request to become an E-filer—which the electronic case filing
system was required to accept. As Nelson points out, “the
electronic case filing system is . . . a substitute for the clerk of
the court.” Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO,
548 F.3d 137, 142 (D.C. Cir. 2008). And under FRAP 25(a)(4),
“[t]he clerk must not refuse to accept for filing any paper
presented . . . solely because it is not presented in proper form
as required by [the FRAP] or by any local rule or practice.”
Fed. R. App. P. 25(a)(4). But Nelson did not attempt to make
a filing. Instead, he attempted to create an E-filer account. Cf.
Franklin v. McHugh, 804 F.3d 627, 632 (2d Cir. 2015) (“[A]
notice of appeal is not ‘filed’ . . . until counsel completes the
CM/ECF filing process in compliance with the applicable local
only if they have received prior permission from the Clerk of Court.
Id. Nelson did not ask for permission to make an emergency filing
under Circuit Rule 25(g).

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district court rules”). Neither the Clerk nor the electronic case
filing system “refuse[d] to accept the filing” for Nelson’s
petition on the basis that it was “not presented in proper form.”
Fed. R. App. P. 25(a)(4). The petition was never presented to
the Clerk or the electronic case filing system in any form prior
to the receipt of the mailed submission. Therefore, FRAP
25(a)(4) does not provide Nelson the relief he seeks.
III.
In the alternative, Nelson argues that if his petition is
untimely, we should equitably toll the statutory deadline.
“Equitable tolling effectively extends an otherwise discrete
limitations period set by Congress . . . . [I]t pauses the running
of, or ‘tolls,’ a statute of limitations when a litigant has pursued
his rights diligently but some extraordinary circumstance
prevents him from bringing a timely action.” Arellano v.
McDonough, 598 U.S. 1, 6 (2023) (internal quotation marks
and citations omitted). Nelson argues that the Exchange Act
does not bar equitable tolling and that his particular
circumstances warrant it. We agree that the statutory deadline
may be tolled but assume without deciding that Nelson is
entitled to equitable tolling.
A.
1.
To determine whether the Exchange Act bars equitable
tolling, we initially ask if the deadline is jurisdictional,
divesting the Court of its ability to consider an equitable
exception. See Bowles v. Russell, 551 U.S. 205, 214 (2007)
(jurisdictional requirements do not allow for equitable
exceptions); Menominee Indian Tribe of Wisc. v. United States,

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614 F.3d 519, 524 (D.C. Cir. 2010) (a court “has no authority
to create equitable exceptions to jurisdictional requirements”).
We interpret a filing deadline “as jurisdictional only if
Congress clearly states that it is.” Harrow v. Dep’t of Def., 601
U.S. 480, 484 (2024) (internal quotation marks and citations
omitted).
Section 21F(f) provides in relevant part that “[a]ny
determination of an award” (with one exception not relevant
here) “may be appealed to the appropriate court of appeals of
the United States not more than 30 days after the determination
is issued by the Commission.” 15 U.S.C. § 78u-6(f).
Under the Supreme Court’s decision in Harrow, we
consider if the statute “mention[s]” appellate court
“jurisdiction, whether generally or over untimely claims.” 601
U.S. at 486. Like the statute in Harrow, which did not impose
a jurisdictional deadline, Section 21F(f) “describes how a
litigant can obtain judicial review of the [Commission’s] final
orders,” “directs those appeals” to the appropriate court of
appeals, and “sets a deadline.” Id. at 485. It makes no mention
of an appellate court’s jurisdiction. Nor does anything else in
the statutory text or its structure suggest the timeline is
jurisdictional. Section 21F(f) therefore does not impose a
jurisdictional deadline.3
3 We instructed the parties to brief whether we can address equitable
tolling before deciding if we have jurisdiction to hear the case. Both
parties agree that we may do so. Because Section 21F(f) is not a
jurisdictional requirement, we do not need to answer whether
equitable tolling can be addressed before jurisdiction.

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2.
We next determine whether equitable tolling is otherwise
unavailable. Not all non-jurisdictional statutory deadlines can
be equitably tolled. See Young v. SEC, 956 F.3d 650, 654–655
(D.C. Cir. 2020). The Commission argues that Section 21F(f)
operates as a “mandatory deadline to which equitable tolling
does not apply once an untimeliness objection is properly
raised.” Resp’t Br. 39. We are not persuaded.
“[N]onjurisdictional [timing rules] are presumptively
subject to equitable tolling.” Boechler P.C. v. Comm’r., 596
U.S. 199, 209 (2022); see Chung v. U.S. Dep’t of Justice, 333
F.3d 273, 276 (D.C. Cir. 2003) (“[I]t is reasonable to presume
the Congress, unless it said otherwise, expect[s] the
Government to face equitable tolling in litigation because
equitable tolling is a traditional feature of the procedural
landscape.”). That presumption reflects that Congress
“legislate[s] against a background of common-law
adjudicatory principles,” including equitable tolling. Lozano v.
Montoya Alvarez, 572 U.S. 1, 10–11 (2014) (alteration in
original) (quoting Astoria Fed. Sav. & Loan Assn. v. Solimino,
501 U.S. 104, 108 (1991)). Section 21F(f) does not require us
to depart from the presumption that equitable tolling is
available for non-jurisdictional deadlines.
The key question is whether there is “good reason to
believe that Congress did not want the equitable tolling
doctrine to apply” to Section 21F(f). United States v.
Brockamp, 519 U.S. 347, 350 (1997) (emphasis in original).
We have previously found that a similar non-jurisdictional
statutory deadline could be equitably tolled. See Myers v.
Comm’r., 928 F.3d 1025, 1036–37 (D.C. Cir. 2019). In Myers,
the relevant statute provided that whistleblower awards by the

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Internal Revenue Service must “within 30 days . . . be appealed
to the Tax Court.” Id. We noted that neither the plain language
of the statute, nor the legislative or regulatory history indicated
that Congress barred equitable tolling. Id. at 1036–37.
Similarly, here, the Commission does not point to anything in
the statute or the legislative history that suggests equitable
tolling of Section 21F(f)’s deadline is unavailable.
Alternatively, the Commission claims that FRAP 26(b)(2)
displaces the presumption that equitable tolling is available.
FRAP 26(b) provides that a court “may not extend the time to
file . . . a petition to enjoin, set aside, suspend, modify, enforce,
or otherwise review an order of an administrative agency . . .
unless specifically authorized by law.” Fed R. App. P. 26(b)
The Commission contends that FRAP 26(b)(2) “prohibit[s]
courts from applying common law equitable-tolling principles
to petitions for review,” unless a statute “specifically
authorize[s] it.” Resp’t Br. 40. As we have previously
stressed, however, the presumption of equitable tolling applies
to deadlines pertaining to petitions for review. See N.Y.
Republican State Comm. v. SEC, 799 F.3d 1126, 1134 (D.C.
Cir. 2015) (equitable tolling available in petitions for review
“unless Congress has shown its intent” otherwise); Robinson v.
Dep’t of Homeland Sec. Off. of Insp. Gen., 71 F.4th 51, 57
(D.C. Cir. 2023).
The Commission’s attempted reliance on Nutraceutical
Corp. v. Lambert, 586 U.S. 188 (2019), is likewise misplaced.
In Nutraceutical, the Supreme Court found that filing deadlines
in the Federal Rules of Civil Procedure are not subject to
equitable tolling. Id. at 192–193. Here, however, the relevant
filing deadline is provided by a statute and not a Federal Rule,
and the Supreme Court has yet to extend this constraint on the
Federal Rules to statutory deadlines. See Fort Bend Cnty., Tex.

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v. Davis, 587 U.S. 541, 549 n.5 (2019) (reserving a decision on
whether a “mandatory claim-processing” deadline in a statute
and not a Federal Rule is subject to equitable tolling
exceptions).
B.
As Section 21F(f)’s deadline may be tolled, we next ask
whether Nelson is entitled to equitable tolling in light of his
particular circumstances. “Generally, a litigant seeking
equitable tolling bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that
some extraordinary circumstance stood in his way.” Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005). Moreover, “equitable
tolling must be applied flexibly, case by case, without
retreating to ‘mechanical rules’ or ‘archaic rigidity.’”
Menominee Indian Tribe of Wisc. v. United States, 764 F.3d 51,
58 (D.C. Cir. 2014) (quoting Holland v. Florida, 560 U.S. 631,
649–50 (2010)).
Equitable tolling is not appropriate if “the circumstance
that stood in a litigant’s way [is] a product of that litigant’s own
misunderstanding of the law or tactical mistakes in litigation.”
Young, 956 F.3d at 655 (quoting Menominee Indian Tribe of
Wisc., 764 F.3d at 58). For example, “filing an action in a state
court or federal agency that clearly lacks jurisdiction over the
action does not toll the time for filing in federal court.” Id. at
656 (quoting Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96
(1990)).
By his own accounting, Nelson primarily failed to file his
petition on time because he did not understand the D.C.
Circuit’s requirements for electronic filings by pro se
petitioners. Therefore, Nelson’s circumstances come close to

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a “garden variety claim of excusable neglect,” which does not
warrant equitable tolling. Id.
But Nelson also raises factors that altogether could weigh
in favor of equitable tolling. Nelson contends that, proceeding
pro se, he diligently sought to file his petition. Once his request
to become an E-filer was rejected, he expeditiously sought to
preserve his rights by phoning the Clerk of Court and then
mailing a physical copy of his petition, which he could not
hand-deliver because he does not reside in the District of
Columbia.
Assuming without deciding that equitable tolling is
warranted here, Nelson’s petition fails on the merits because
the Commission did not act arbitrarily and capriciously.
IV.
A.
We have jurisdiction to review the Commission’s
determination of whether a claimant is eligible for a
whistleblower award. 15 U.S.C. § 78u-6(f). Pursuant to 15
U.S.C. § 78u-6(f), we review the Commission’s eligibility
determinations “in accordance with section 706” of the
Administrative Procedure Act, which requires us to set aside
an agency action if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). The Commission’s findings of fact are conclusive
if supported by substantial evidence. 15 U.S.C. § 78y(a)(4).

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B.
Nelson contends that the Commission acted arbitrarily and
capriciously by concluding that the Joint Claimants were
eligible for an award. We disagree.
The Commission reasonably determined that the Joint
Claimants provided original information derived from their
independent knowledge and independent analysis, as required
by the statute and Commission regulations. Whistleblowers
have independent knowledge if they possess information that
is not “derived from publicly available sources.” 17 C.F.R.
§ 240.21F-4(b)(2). A whistleblower’s independent analysis
may examine information that is publicly available but must
“reveal[] information that is not generally known or available
to the public.” Id. § 240.21F-4(b)(3). The Commission
adequately explained that the Joint Claimants “provided new
information that caused the staff to inquire into new conduct as
part of its existing investigation” and substantially assisted the
staff during the course of the investigation, including by
“providing additional information and participating in
interviews with the staff.” J.A. 254.
Nelson primarily argues that the Joint Claimants’
submission did not reflect their own original information.
Rather, Nelson contends, the Joint Claimants’ submission was
entirely based on a research publication, which originated with
Nelson and was published about a week before the Joint
Claimants made their submission to the Commission.
The Commission reasonably addressed and rejected
Nelson’s argument in the Final Order. It determined that the
Joint Claimants’ submission contained certain non-public,
internal information regarding the company’s losses that was

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not included in the research publication and that aided the
Commission in its investigation.
The evidence in the record supports the Commission’s
finding that the Joint Claimants helped close a gap in the
publicly available information regarding the company’s losses.
The research publication did not quantify certain losses
because the necessary information was unavailable. The Ahart
declarations indicate that the Joint Claimants provided
relevant, non-public material that helped the Commission
understand the losses that the research publication could not
quantify.
Finally, Nelson invokes the auditor exclusion, which bars
claimants from receiving awards based on material obtained
through an audit in certain circumstances. He argues that even
if the Joint Claimants provided certain information to the
Commission that was not included in the research publication,
that information was obtained through one claimant’s work in
connection with an audit and cannot support the Joint
Claimants’ eligibility.
Nelson’s argument is forfeited because he did not raise it
before the Commission, even though it was available to him at
the time.4 The Exchange Act makes clear that “[n]o objection
to an order or rule of the Commission, for which review is
sought under this section, may be considered by the court
4 The parties dispute which Commission rule implementing the
requirements of the auditor exclusion in Section 21F applies here—
Rule 21F-4(b)(4) or Rule 21F-8(c)(4). Regardless, Nelson forfeited
the argument because he did not raise the auditor exclusion when
challenging the Preliminary Determination before the Commission.

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unless it was urged before the Commission or there was
reasonable ground for failure to do so.” 15 U.S.C. § 78y(c)(1).
Nelson failed to raise the auditor exclusion in his
objections to the Claims Review Staff’s Preliminary
Determination. Commission regulations direct Nelson to
“contest the Preliminary Determination made by the Claims
Review Staff by submitting a written response to the Office of
the Whistleblower setting forth the grounds for [his]
objection.” See 17 C.F.R. § 240.21F-10(e). It is this
submission of objections “contesting [the] Preliminary
Determination” that exhausts Nelson’s administrative remedies
before the Commission and enables him to “pursu[e] an
appeal” of a final order in court. See id. § 21F-10(f). The
objections thus put the Commission on notice of a claimant’s
issues with the staff’s preliminary determination and inform the
Commission in rendering a reviewable final order.
In Doe v. SEC, 28 F.4th 1306 (D.C. Cir. 2022), we looked
beyond the objections to a preliminary determination to
determine if an argument was adequately raised and preserved,
but we did so because the objections included a statement
explicitly incorporating the arguments made in an initial claim
filing. See id. at 1316. Nelson’s objections include no such
explicit incorporation.
Although Nelson now proceeds pro se before this Court
and we afford him solicitude in arguments properly before us,
Nelson appears to have been represented by counsel before the
Commission. Nelson’s objections to the Preliminary
Determination explicitly stated that the Commission could
follow up with “my attorney.” J.A. 130. When the
Commission issued its Final Order, it transmitted a copy of the
order to the attorney Nelson had identified, stating that it issued

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“your client” a whistleblower award. J.A. 249. Accordingly,
we do not find it appropriate to extend solicitude to construing
the content of Nelson’s filings in the proceeding before the
Commission, where he had counsel to guide him.
V.
For the foregoing reasons, Nelson’s petition for review is
untimely, and assuming Nelson is entitled to equitable tolling,
his petition fails on the merits. Nelson’s petition for review is
therefore denied.
So ordered.

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KAREN LECRAFT HENDERSON, Circuit Judge, concurring
in the judgment: My colleagues reach the right result—
denying Nelson’s petition for review on the merits—but, I
respectfully submit, only after three wrong turns. First,
Nelson’s petition was timely because he took every step he
could to submit his filing to the clerk of the court but it was
nevertheless rejected solely because it was not presented in
proper form. Second, if Nelson’s petition were in fact
untimely, he would not have been eligible for equitable tolling
because no extraordinary circumstance prevented him from
timely filing. Third, Nelson has not forfeited his auditor-
exclusion argument because he urged it before the SEC in his
award application. Even so, because the SEC did not act
arbitrarily or capriciously in its award decision, they correctly
deny Nelson’s petition for review.
A.
Under the Federal Rules of Appellate Procedure
(Appellate Rules), a pro se party “may file electronically only
if allowed by court order or by local rule.” Fed. R. App.
P. 25(a)(2)(B)(ii). As the majority observes, the requirement
that a party seek leave before filing electronically is intended
to “ensure that [he is] not placed at a disadvantage” if, for
example, he does not have the “technological tools” to file and
receive filings electronically. Maj. Op. 9.
The Rules Committee similarly explained in the context of
a parallel provision in the Federal Rules of Civil Procedure
(Civil Rules) that courts cannot yet assume that a pro se party
can take advantage of electronic filing. See Fed. R. Civ. P. 5(d)
advisory committee’s note to 2018 amendment (discussing
Fed. R. Civ. P. 5(d)(3)). The committee therefore admonished
that “[c]are should be taken to ensure that an order to file
electronically does not impede access to the court.” Id. To

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further the goal of ensuring access, Civil Rule 5(d)(4) then
provides that “[t]he clerk must not refuse to file a paper solely
because it is not in the form prescribed by these rules or by a
local rule or practice.”
The Appellate Rules have a parallel provision, requiring
that “[t]he clerk must not refuse to accept for filing any paper
presented for that purpose solely because it is not presented in
proper form as required by these rules or by any local rule or
practice.” Fed. R. App. P. 25(a)(4); see also id. 25(a)(2)(B)(iv)
(“A paper filed electronically is a written paper for purposes of
these rules.”). The “electronic case filing system is . . . a
substitute for the clerk of the court.” Royall v. Nat’l Ass’n of
Letter Carriers, 548 F.3d 137, 142 (D.C. Cir. 2008). Thus, the
electronic case filing (ECF) system must not refuse to accept
any filing solely because it is not presented in proper form.
Our circuit rules also provide that a pro se party “must file
documents in paper form” unless he has been permitted to
register as an ECF-filer. D.C. Cir. R. 25(c)(1). To obtain
permission to register as an ECF-filer, a pro se party “must file
a motion in this court.” Id. 25(b)(2). Here, Nelson tried to
timely file his petition online without having first filed such a
motion but his request to register as an ECF-filer was rejected.
In other words, the electronic system—the clerk’s substitute—
prevented him from taking any further steps toward submitting
his filing. But as we have explained, “a step forbidden by a
person standing at a counter is equally forbidden to an
automated agent that acts on the court’s behalf.” Royall, 548
F.3d at 142–43 (quoting Farzana K. v. .Ind. Dep’t of Educ., 473
F.3d 703, 707 (7th Cir. 2007)). The “computer’s reaction does
more to show the limits of some programmer’s imagination
than to render the suit untimely.” Farzana K., 473 F.3d at 707.
Instead, “electronic submission . . . during the filing period

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3
constitutes timely filing even if the electronic case filing
system rejects the submission.” Royall, 548 F.3d at 143.
It elevates form over substance—precisely what the
Appellate Rules prohibit—to say that he never “presented” his
filing to the ECF system simply because he was barred from
proceeding at the registration rather than the submission stage.
Under that logic, although the clerk could not refuse to accept
papers at the counter of the clerk’s office, he could permissibly
stop a would-be filer at the courthouse steps and tell him he
could not enter the building and approach the counter because
the filing must be submitted electronically. See D.C. Cir. R.
25(a) (“Except as otherwise prescribed by Circuit rule or order
of the court, . . . all documents must be filed electronically
. . . .”). The Rules neither require nor permit such a curious
result.
Deeming Nelson’s petition timely also accords with
Appellate Rule 47(a)(2), which provides that “[a] local rule
imposing a requirement of form must not be enforced in a
manner that causes a party to lose rights because of a nonwillful
failure to comply with the requirement.” As my colleagues
point out, Circuit Rule 25(c) “establishes a separate, threshold
step at which a party must file a motion and the court must
make a determination that electronic filing is appropriate.”
Maj. Op. 10. True enough. But it also unambiguously imposes
a requirement of form—filing “in paper form”—that the
majority enforces in a manner that deprives Nelson of his right
to petition for relief because of his nonwillful failure to comply.
That is just what Appellate Rule 47(a)(2) is designed to
prevent.
B.
Having concluded that Nelson’s petition was untimely, the
majority next brushes past our precedent in SEC v. Young, 956

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4
F.3d 650 (D.C. Cir. 2020). As we explained there, “a litigant
seeking equitable tolling bears the burden of establishing two
elements: (1) that he has been pursuing his rights diligently,
and (2) that some extraordinary circumstance stood in his
way.” Id. at 655 (quoting Pace v. DiGuglielmo, 544 U.S. 408,
418 (2005)). To qualify as extraordinary, “the circumstances
that caused a litigant’s delay must have been beyond its
control.” Id. (quoting Menominee Indian Tribe of Wis. v.
United States, 764 F.3d 51, 58 (D.C. Cir. 2014)). “The
circumstance that stood in a litigant’s way cannot be a product
of that litigant’s own misunderstanding of the law or tactical
mistakes in litigation.” Menominee Tribe, 764 F.3d at 58.
Additionally, “ignorance of the law,” including that
attributable to pro se status, is “not an appropriate basis for
equitable tolling.” Young, 956 F.3d at 656. And “statements
made by the clerk’s office staff,” including failing to correct a
party’s misunderstanding, are not enough to show
extraordinary circumstances unless they are affirmatively
misleading. See id. at 657.
On these facts, Nelson would not be eligible for equitable
tolling. He filed late—in the majority’s view—due to his own
misunderstanding of federal and local rules about the form in
which he had to file his petition. That “mistake is a ‘garden
variety claim of excusable neglect.’” Id. at 656 (quoting Irwin
v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990)). Granted,
he called the clerk’s office and was not told that he could
request permission to make an emergency filing by fax or
email, see D.C. Cir. R. 25(g), but he has not alleged that he was
affirmatively misled. Thus, he is ineligible for equitable
tolling.
The majority lists as “factors that altogether could weigh
in favor of equitable tolling” that Nelson “sought to preserve
his rights by phoning the Clerk of Court and then mailing a

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5
physical copy of his petition” and that he “could not hand-
deliver” his petition because “he does not reside in the District
of Columbia.” Maj. Op. 15. Calling the clerk’s office and
mailing his petition arguably demonstrates that Nelson
diligently pursued his rights, although other courts have
pointed out that “the errors that often accompany hurried action
do not enable the bungling lawyer to grant himself extra time.”
Farzana K., 473 F.3d at 705. But living outside the District of
Columbia is a common, not extraordinary, obstacle to meeting
a D.C. court filing deadline. Thus, the majority identifies no
extraordinary circumstance, as required by our precedent, that
could support applying equitable tolling here.
Granted, if a non-jurisdictional issue of statutory
reviewability “presents a difficult question,” a court may
assume reviewability and resolve the claim on the merits.
Trump v. Hawaii, 585 U.S. 667, 682–83 (2018). But this is not
a difficult question—Nelson is plainly ineligible for equitable
tolling. In my view, then, the majority errs by reaching the
merits.
C.
On the merits, the majority incorrectly deems Nelson’s
auditor-exclusion argument forfeit. Maj. Op. 18. Under
15 U.S.C. § 78y(c)(1), “[n]o objection to an order or rule of the
Commission, for which review is sought under this section,
may be considered by the court unless it was urged before the
Commission or there was reasonable ground for failure to do
so.” Contrary to the majority’s assertion that Nelson “did not
raise it before the Commission,” Maj. Op. 18, Nelson urged his
auditor-exclusion argument before the SEC by advancing it in
his award application, J.A. 55 (arguing that the Joint Claimants
are ineligible for an award because their “information was

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6
obtained through the performance of an audit engagement and
does not appear to qualify for any of the pertinent exceptions”).
To support its position, the majority cites Doe v. SEC, 28
F.4th 1306, 1316 (D.C. Cir. 2022), but that case is inapt. In
Doe, the petitioners tried to avoid forfeiture by relying on
footnotes in their challenge to the SEC’s preliminary award
determination. Id. Those footnotes sought to “incorporate all
information and arguments” made in the petitioners’ award
applications and to “not waive any argument or position.” Id.
(cleaned up). We observed that the petitioners “fail[ed] to
provide any citation to the portion of their original award
applications where they made this argument,” concluding that
they “never made” such an argument. Id.; see also
Springsteen-Abbott v. SEC, 989 F.3d 4, 8 (D.C. Cir. 2021)
(holding that petitioner “failed to raise her constitutional
challenges before the Commission” because she had previously
raised three issues, none of which was in “substance” “akin to
the Due Process concerns” later asserted). Yet Amicus has
cited to the portion of Nelson’s original award application in
which he urged the substance of his auditor-exclusion
argument.
The majority’s objection is instead that Nelson did not re-
raise this argument when challenging the preliminary award
determination, when the SEC rejected his auditor-exclusion
argument. Maj. Op. 18. Relatedly, in support of its forfeiture
argument the SEC cites one case in which the petitioner “failed
to challenge” an SEC finding “in seeking reconsideration by
the Commission.” KPMG, LLP v. SEC, 289 F.3d 109, 117
(D.C. Cir. 2002). There, the petitioner had not previously
raised its argument. Indeed, its “first notice” that the SEC
would make the finding at issue came in the order of which the
petitioner would later seek reconsideration. Id. Thus, the
Court’s analysis focused on whether there were reasonable

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grounds for the petitioner’s failure to raise the argument at all.
See id. at 118. Here, as discussed, Nelson had already raised
his auditor-exclusion argument in his award application.
SEC regulations do not indicate a failure to exhaust here
either. A whistleblower-award claimant “may contest the
Preliminary Determination . . . by submitting a written
response . . . setting forth the grounds for [the] objection.”
17 C.F.R. § 240.21F-10(e). Further, “failure to submit a timely
response contesting a Preliminary Determination will
constitute a failure to exhaust administrative remedies.” Id.
§ 240.21F-10(f). But Nelson satisfied the SEC’s
administrative-exhaustion rule by timely submitting a request
for reconsideration setting out grounds for objection, although
he did not repeat the specific auditor-exclusion argument.
The question then becomes whether an argument must be
raised with specificity in a request for reconsideration lest it be
forfeit in a petition for review. The plain text of the statute
imposes no such requirement. By contrast, for example,
statutes administered by the Federal Energy Regulatory
Commission (FERC) impose an “unusually strict exhaustion
requirement,” mandating that each argument be raised with
“specificity” in a request for rehearing. Ameren Servs. Co. v.
FERC, 893 F.3d 786, 793 (D.C. Cir. 2018) (first quoting
Wabash Valley Power Ass’n v. FERC, 268 F.3d 1105, 1114
(D.C. Cir. 2001); then quoting Wis. Power & Light Co. v.
FERC, 363 F.3d 453, 460 (D.C. Cir. 2004)). “[A]ll three of the
major statutes administered by FERC” impose not only a
“mandatory petition-for-rehearing requirement” but also “the
additional requirement of raising the very objection urged on
appeal.” ASARCO, Inc. v. FERC, 777 F.2d 764, 774 (D.C. Cir.
1985) (citing 15 U.S.C. §§ 717r, 3416; 16 U.S.C. § 825l).
Under those statutes, “[n]o objection to the order of the
Commission shall be considered by the court unless such

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8
objection shall have been urged before the Commission in the
application for rehearing unless there is reasonable ground for
failure so to do.” E.g., 16 U.S.C. § 825l(b) (emphasis added).
Instead, the Exchange Act simply requires an objection to
be “urged before the Commission.” 15 U.S.C. § 78y(c)(1). As
the majority acknowledges, we also give special “solicitude” to
pro se petitioners who may be less familiar than seasoned
advocates with the “requirements of form and process,”
although they must still comply with relevant rules. Maj.
Op. 8. My colleagues state that Nelson “appears to have been
represented by counsel before the Commission,” id. at 19, but
the record is not clear on that score. Counsel submitted
Nelson’s award application on his behalf but Nelson submitted
his request for reconsideration himself, although he provided
his counsel’s contact details in addition to his own. Absent a
clear rule from the statutory text or our precedent requiring
objections to be reasserted on reconsideration, Nelson—who
became pro se at some point between his award application and
his notice of appeal—should not be deemed to have forfeited
the auditor-exclusion argument when it was raised in his award
application.
D.
On the merits of Nelson’s auditor-exclusion argument—as
the majority notes—the parties dispute which SEC rule
implementing the auditor-exclusion applies here. Maj. Op. 18
n.5. Especially given our duty to “construe liberally” pro se
filings to “avoid inappropriately stringent application of formal
labeling requirements,” Dufur v. U.S. Parole Comm’n, 34 F.4th
1090, 1096 (D.C. Cir. 2022), I think that it should not be
considered forfeiture that Nelson and Amicus cited the auditor-
exclusion rule applicable to non-issuers rather than the

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corresponding rule for issuers. Compare 17 C.F.R. § 240.21F-
4(b)(4)(iii)(D), with 17 C.F.R. § 240.21F-8(c)(4).
In any event, under either rule Nelson has not shown that
the SEC acted arbitrarily or capriciously in concluding that the
rule did not apply. In both its preliminary determination and
its final order, the SEC stated that the auditor-exclusion rule
did not apply because the relevant whistleblower had internally
reported his or her concerns and the audit team did not file a
section 10A report with either the audited company or the
SEC.1 Under Rule 21F-8(c)(4), “a firm’s failure to promptly
report” a securities law violation discovered during a section
10A audit “constitutes a violation of Section 10A” and “[a]
whistleblower may at any point thereafter report this Section
10A violation to the Commission, and thus become eligible for
an award.” Securities Whistleblower Incentives and
Protections, 76 Fed. Reg. 34300, 34336 n.315 (June 13, 2011).
Under Rule 21F-4(b)(4), a whistleblower who obtains
information in connection with an audit may still be eligible for
an award if at least 120 days elapse between when the
whistleblower provides information to certain persons and
when he provides it to the SEC. 17 C.F.R.
1 If an audit firm “detects . . . that an illegal act . . . may have
occurred, the firm shall” determine “ whether it is likely that” the act
occurred and, if so, “the possible effect” of it on the issuer’s financial
statements. 15 U.S.C. § 78j-1(b)(1). “[U]nless the illegal act is
clearly inconsequential,” the audit firm shall “as soon as practicable,
inform the appropriate level of the management of the issuer and
assure that the audit committee . . . is adequately informed.” Id.
§ 78j-1(b)(1)(B). Subject to certain preconditions, the audit firm
may have an obligation to escalate the report to the issuer’s board of
directors. Id. § 78j-1(b)(2). If the board receives a (b)(2) report, the
issuer “shall inform the Commission by notice not later than 1
business day after the receipt of such report” and, if it does not, the
audit firm must do so. Id. § 78j-1(b)(3).

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§ 240.21F-4(b)(4)(v)(C). Here, the relevant whistleblower
waited six months between reporting internally and reporting
to the SEC, satisfying both rules’ requirements.
In a last-ditch effort, Amicus contends that the record does
not show that the relevant whistleblower raised specific
concerns internally about the information later submitted to the
SEC as opposed to generic concerns about how the audit was
being conducted overall. But the Ahart declaration explains
that the SEC did not independently corroborate the nature and
extent of the internally raised concerns because it wanted to
avoid possible disclosure of the whistleblower’s identity. That
satisfies the SEC’s obligation to “explain why it decided to act
as it did by providing a statement of reasoning rather than a
mere conclusion.” Cboe Futures Exch. v. SEC, 77 F.4th 971,
980 (D.C. Cir. 2023) (quoting Butte County v. Hogen, 613 F.3d
190, 194 (D.C. Cir. 2010)). Indeed, by statute the SEC is
generally required to protect a whistleblower’s identity unless
disclosure is required in a public proceeding. 15 U.S.C. § 78u-
6(h)(2). Particularly in light of the SEC’s confidentiality
obligations, its judgment call not to independently corroborate
the relevant whistleblower’s report was not arbitrary or
capricious.
* * *
Accordingly, Nelson’s petition fails on the merits and is
properly denied.

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