UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

In re: JOHN DOE,

No. ____________________

Petitioner

____________________________________________________________________

Emergency Petition for a Writ of Mandamus

Directed to The United States Securities and Exchange

Commission to Compel Agency Action that Has Been

Unreasonably Delayed & Unlawfully Withheld ____________________________________________________________________

Pursuant to 5U.S.C§706(1) and 28U.S.C.§1651(a), petitioner John Doe requests that

the Court issue a writ of mandamus directing the Securities and Exchange

Commission (“SEC”) to issue a decision, prior to the implementation of new rules,

changes to existing rules and definitions / clarifications which can negatively affect

award eligibility, within 30 days, under 17C.F.R.§240.21F-10(d) on Petitioner’s

applications for monetary awards under the SEC’s Whistleblower Program, and

according to the Final Rules established by SEC & Congress that created and have

governed the Whistleblower Program since inception.

ISSUES PRESENTED

1. Has the SEC’s decision on Petitioner’s claims been unreasonably delayed?

a. Does the SEC’s statement to the Petitioner that he “should expect a

decision by the first quarter of 2017, at the latest,” establish a self-

imposed deadline on the SEC and warrant a finding of unreasonable

agency delay?

2. Does the arrangement between the parties establish a contract between them?

3. Does SEC have the authority to change the terms, rules and definitions of the

Final Rules, without an act of Congress?

a. If so, does that include the authority to create rules to justify an act of

conspiracy, fraud, theft, larceny, etc ?

4. Is the SEC applying its proposed rule changes to all pending and existing

claims, to render award eligible claims under the established final rules,

ineligible for awards under the newly created rules?

5. Has the SEC unlawfully withheld a decision on Petitioners claims, with the intent

of changing the rules, in order to render his award eligible claims, ineligible??

8

Statement of Facts

Petitioner provided the Respondent (“SEC”) with information involving security law

violations, directly to Mr. at the SEC , who explained that “under the "new"

whistleblower program” as it was at the time, the Petitioner had to initiate contact in order

to receive an award, if anything they were about to discuss led to a fine of more than one

million dollars, to which he added that obstacle was removed the moment the call was

made and answered, Petitioner was unaware of the whistleblower program and potential

award until then.

administered an oath of truthfulness, which was sworn to by Petitioner.

Petitioner proceeded to provide details of what he knew and suspected. As the

conversation continued, Petitioner instructed to "pull up the symbol on level 2," to

show him what was happening at that moment. answered that he had no access

to level 2 quotes, Petitioner then sent via email, while on the phone call, screenshots

which captured a separate crime in progress, to

Near the end of the call, informed the petitioner that he was the first and

only person that had brought these issues to SEC's attention and that he was

forwarding all of it to the investigations division. He then made certain that the

Petitioners information was correct, and subsequently proceeded to fill out a TCR form,

for the Petitioner, for award purposes. Petitioner was

had only the pseudonym, initially.

Petitioner provided original information previously unknown to the Commission,

resulting from his independent analysis, which led to the opening of at least 3

investigations ending with sanctions well above $1 million each. Petitioner has been

plagued by acts of criminal retaliation ever since.

In 2015, a Wall Street Journal article reported backlogs of award claims at the

SEC, which suggested over 300 ( 83%+ ) of claims had not received a preliminary

determination.

9

Another claimant subsequently filed a petition Writ of Mandamus based on

unreasonable delay, which went farther into the alleged problem at the SEC2.

Based on what little information was available, it was thought that claims were not

being processed on a first in / first out basis, because they seemed to follow no logical

order in that many claims were decided while others that had been submitted before those

remained undecided.

The SEC provides Congress an update every year, and has never reported any

backup in the award claim process, and had reported that it took on average;

1) Approximately 9 months from the time the 90 day window closed until a

preliminary determination was made, (12 months total) and

2) approximately 11 months from the time a Notice of Covered Action(NOCA) is posted on the SEC’s website.

Both of those estimates, were inline with what the Petitioner was told. Petitioner

submitted to SEC's Office of the Whistleblower ("OWB"), three (3) whistleblower award

claims in May of 2016, (Exhibit A) and was told by the OWB that he "should expect a

decision by approximately year end 2016, perhaps the first quarter of 2017, at the latest."

In the first quarter of 2017, Petitioner was informed by OWB that the reason he had

not been contacted was that his "claims were complete and required no follow up

information." Petitioner reasoned that his claims were being processed and that a decision

was imminent.

In 2017, a Congressional Inquiry was submitted by to

SEC regarding the status of Petitioner's claims. The response (Exhibit B) indicated OWB

would contact the Petitioner when a decision was made, and that the OWB, was just busy.

More than one full year later, Petitioner has still not received a decision and the

reason for the delay, became clear on June 28, 2018, when the SEC announced and

approved a proposal to change the Final Rules the program was established by and

operates under.2

10

2 SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 240 and 249 Release No. 34-83557; File No. S7-16-18 RIN 3235 – AM11

11

Based on what little information is available, it takes an average of 16 months

from the time a NOCA is posted until a preliminary determination is made, ranging

from two(2) to thirty(30) months. It has been 31 months since 2 of the 3 cases were

posted, for which no preliminary decision has been made.

File Number NOCA Date Prelim. MONTHS2012-01 5/8/2012 8/21/2012 32012-02 5/18/2012 7/18/2012 22013-01 4/13/2012 12/19/2012 92013-03 12/19/2012 8/30/2013 92013-04 4/23/2013 9/5/2013 52014-01 8/12/2011 11/5/2012 152011-142 8/12/2011 9/14/2012 13

11/26/2011 11/5/2012 12 3/10/2012 11/5/2012 8

2011-136 8/12/2011 12/19/2012 152011-144 8/12/2011 4/9/2013 202011-184 10/5/2011 6/26/2013 222011-158 10/5/2011 1/3/2014 272011-046 8/12/2011 1/8/2014 292011-108 8/12/2011 1/8/2014 292011-106 8/12/2011 1/8/2014 29

11/26/2011 3/13/2014 28 9/13/2013 3/13/2014 6

2012-081 8/1/2012 5/5/2014 212011-194 12/1/2011 6/16/2014 30

12/12/2014 2/13/2015 22012-089 9/4/2012 12/15/2014 27

Average = 16.4

Petitioner 2/28/2016 - ? = 31

Source: addendum 2, John Doe V SEC, USCA Case #15-1444 Document #1587949

SEC states its intention of retroactively applying only some of the proposed changes

to all pending and existing claims that have not reached a final decision from the

commission. .

"The Commission anticipates this proposed rule change, if adopted, would apply to all new whistleblower award applications filed after the effective date of the amended final rules, as well as all whistleblower award applications that are pending and have not yet been the subject of a final order of the Commission by the effective date…" 3

The carefully chosen changes SEC intends to apply to existing claims, are

only those changes that will result in award eligible claims under the current

rules, being rendered ineligible for awards, after the changes are adopted.

Summary of Argument

Petitioner argues that SEC, may not have the authority to change the Final

Rules as SEC proposed, including changes with or without approval to be applied on

an at-will basis and changes which SEC intends to apply to all existing, pending

whistleblower award claims including the Petitioner’s which SEC has unlawfully

withheld a decision on for more than two years, with the criminal intention of

fraudulently rendering award eligible claims under the established rules as ineligible

after the changes become effective, due to budget concerns and the potential

misappropriation of more than a billion dollars that should have been set aside for

the payment of a whistleblower award claims, thus creating the unreasonable delay

in this case which began when SEC failed to issue a decision by its self-imposed

deadline of “ the first quarter of 2017, at the latest. “

3 See pages 96-98 of rule change proposal

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Argument

Unlawful Withholding of Claim Decisions

It is more likely than not the case that the SEC has unlawfully withheld issuing

an official decision on claims that were processed yet set aside based on some

internal directive or unwritten policy,(i.e. claimants are not represented by counsel,

and/or claims apply to cases involving financial firms) until rule changes could be

made that will render the petitioner’s claims ineligible, and potentially hundreds of

others..

Petitioner's claims should have been relatively easy to process. The SEC,

according to agency reports from the Office of the Inspector General (OIG) and the

OWB, tracks whistleblower tips:

• “OWB staff tracks investigations where a whistleblower has providedinformation or assistance to Enforcement staff. This case-trackinginitiative provides early information to OWB about which matters mayultimately result in an award payout4 …”

• “…, during this Phase, OWB––tracks whistleblower cases todocument the whistleblower’s cooperation and the content andhelpfulness of whistleblower information”…” Furthermore, OWBdocuments information needed to process whistleblower awards.5”

4 OWB 2017 Annual Report to Congress - page 6

5 OIG 2013 Report on Whistleblower Program -page 4 (13th page overall,) subtitled Phase 3 Claim an Award

13

Given that the SEC tracks cases so diligently, SEC should know that the

Petitioner’s information resulted in the opening of investigations that qualifies

Petitioner for the monetary awards associated with each case.

SEC is unlawfully withholding the issuance of a decision, until new rules can

be applied to all pending claims that have not received a final order from the

Commission, to render the petitioners award eligible claims under the rules that

have been in effect from the beginning through the more than two years the SEC

has had possession of the Petitioner’s claims, ineligible under the new rules, once

adopted.

The SEC has conspired to steal the award money from whistleblowers,

through an act of fraud that dwarfs those SEC prosecutes, which most likely

resulted from the misappropriation of well over $1 billion that should have been set

aside for the payment of whistleblower claims.

SEC does not have the money6 to repeatedly replenish the award fund that

was established for the payment of whistleblower awards, which SEC had to do

earlier this year.7 Petitioner’s claims which are worth roughly $28 million combined.

14

6 Big SEC Whistleblower Awards Triggered Fund Refill for First Time | https://www.bna.com/big-secwhistleblower-n73014477334/ 7 SEC, strapped for funds, can't police financial markets | http://thehill.com/opinion/finance/396064-secstrapped-for-funds-cant-protect-investors

After sitting on Petitioner’s claims for more than two years, SEC approved a

proposal just after it was announced to change the Final Rules established by the

SEC and Congress that established and govern the SEC’s whistleblower program:

SEC’s authority to make those changes, is questionable in and of itself.

There is no possibility that the increased restrictions and barriers created

by the changes proposed will render an ineligible claim, eligible.

The only possible outcome, and thus motive, in applying the changes

retroactively, is that award eligible claims under the current rules, will become

ineligible.

The fact that SEC intends to apply the proposed changes to claims it has

withheld an official decision on, means that…

• SEC has already decided the pending cases are award eligible,

• SEC unlawfully withheld issuing a preliminary decision on them.

• SEC knows the rule changes are required to justify the denial of those set aside claims, and...

• SEC knows that absent any rule changes8, the claims cannot be denied according to the established Final Rules,

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…which by default reveals the targeted claims to be award eligible claims that SEC

seeks to render ineligible. This explains the unreasonable delays in this case, and

others, while explaining also why the SEC seems to skip claims rather than use a

first in, first out basis for processing claims.9

Evidence of this intended fraud is found in the proposed rule changes. Knowing

that the SEC intends to change the rules to justify the denials of valid claims it has

withheld a decision on, is only the first step.

Step two comes in the only other change that SEC intends to apply to those

pending claims, which is the implementation of a summary disposition process, which

as SEC states, will only be used for those claims which are obvious denials, but not

just any denials…denials under the rules they are proposing to change!10

Not satisfied with defrauding claimants using specific rule changes, SEC gives

itself a blanket denial option as well:

“In addition, the proposed rule would provide that other defective or

nonmeritorious award applications could be subject to the summary

disposition process under appropriate circumstances”

8 The term Rule Changes is meant to also include the redefinitions of rules SEC refers to in its proposal as

clarifications, which SEC intends to use in order to redefine terms and understandings to deny existing claims also, to avoid any grandfather provision from being included when the changes are adopted. 9 See 10 John Doe V SEC, USCA Case #15-1444 Document #1587949 Filed: 12/10/2015

10 Proposed rule 21f18 page 151

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Making this even more egregious, is that the proposed change is stated to be used, “only to

deny claims,” and goes on to restrict those denials from being reviewed by claims review staff;

denies the claimant a review of the record; requires the claimant respond in half the time

currently allowed, with the intention of issuing a final order of denial in those cases as a result

of a claimant failing to jump through the hoop, that most existing claimants have

no idea is going to be there, because it was not part of the program 6 to 8 years ago,

just as it is not part of the program today, yet SEC again shows the true motive in

applying this new process to the existing claims, that require a rule change; to

disqualify them!

SEC refers to these claims as “straightforward denials,” but bases that

statement on the rule changes that are proposed, which is inadvertently a confession,

that the set aside claims of the petitioner, and perhaps hundreds of other claimants,

have already been reviewed and somehow set aside as “ineligible after the changes

are implemented,” and that the claims under the current rules and understanding of

those rules, are award eligible claims.

The cases were set aside in defiance of the requirement that awards are to be

issued and paid in a timely manner to eligible claimants. The smoking gun, which

proves the SEC's intent is inadvertently proven by SEC, within the footnotes of each

proposed rule change of the proposal SEC authored.

Specifically, of the proposed changes in which a rule change cannot alter a

claimants’ eligibility for an award, SEC states the intention of applying those changes

only to future claims!

“The Commission anticipates these proposed rule

changes would apply only to whistleblower submissions

that are made after the effective date of the proposed

rules.”

17

It is ONLY in those proposed rule changes that will render award eligible

claims under the current rules, ineligible under the new ones, that SEC intends to

apply to all pending claims:

"The Commission anticipates this proposed rule change, if adopted,

would apply to all new whistleblower award applications filed after the

effective date of the amended final rules, as well as all whistleblower award applications that are pending and have not yet been the subject

of a final order of the Commission by the effective date." 11

As mentioned, the only other intended retroactively applied rule, is the fast track , no

appeal possible, rights revoked summary disposition process. The double standard

being applied here, answers the question of intent.

There is absolutely no other reason to apply the changes to existing claims,

except to defraud eligible claimants out of their rewards! SEC knows that there is no

possibility that an ineligible claim under the current rules will be reversed to eligible

once the proposed rules are adopted, because the rules create greater restrictions

and barriers to award eligibility.

Conversely, SEC knows that applying the changes to award eligible claims as

they exist today, will result in denials that cannot be reversed once the new rules,

granting SEC omnipotent discretionary powers, are in place.

11 SEC Rule Change Proposal, page 96, footnotes

18

Why would SEC apply only those changes to existing claims, rather than make

them effective from the date the proposed rules become effective like the other rules

SEC proposes? The answer is motive and intent. SEC has effectively confessed to its

intended crime, which was set into motion the moment the rule change proposal was

announced. Certainly, SEC is aware of this and in fact, designed it this way, in a

blatant display of abuse of power to the detriment and permanent damage to the

petitioner.

Questionable Authority and Abuse of Power

The SEC entered into a contract with the petitioner, and now SEC is changing

the terms of the contract to avoid its obligations, by usurping the power of Congress

and this Court, by giving SEC such discretion, that no challenge can succeed.. The

SEC seems to think it can do anything SEC wants to do, simply by stretching any

amount of authority given to the agency, even if the purpose behind the action, is

criminal in intent.

One example is in the Final Rules which were established which the

Whistleblower program operates under. Claimants are expected to follow the rules to

the letter and for the past 8 years, any denials were accompanied by reasons taken

directly from the final rules.

The FINAL rules have been the core of the whistleblower program. The OIG

reported to Congress, with a good deal of input from the head of the OWB and staff,

19

that the Final Rules as they exist met with the objectives Congress had set out to

achieve, in the third year of the program.

SEC is claiming the authority to make changes to these final rules, under the

authority given the agency to IMPLEMENT the whistleblower program. Immediately,

the SEC must know it has a problem in that the reality is, the SEC has no authority to

change the Final Rules.

"As mandated by the Dodd-Frank Wall Street Reform and Consumer Protection Act (“the Dodd-Frank Act”), the Commission’s Office of the Inspector General (“OIG”) conducted an audit of the Commission’s whistleblower program and released its report on January 18, 2013 OIG concluded that overall the Commission’s whistleblower program was effective and operated appropriately Specifically, OIG found that the Commission’s final rules implementing the whistleblower provisions of the Dodd-Frank Act to be clearly defined and user-friendly for those with a basic knowledge..." 12

SEC, in a most diabolical manner, is now re-identifying the “FINAL RULES” as

they are known to be by anyone familiar with the Whistleblower program,(EXHIBIT G)

by referring to the Final Rules as, the “Implementing Rules and is creatively claiming

to still be implementing the program!”

This achieves the objective for the SEC of removing the concept that the rules

as they were established by the SEC and Congress, were ever meant to be Final

Rules, and by calling them the “Implementing Rules” instead, the SEC is overstepping

the authority given to create rules to implement the whistleblower program.

In reality, it is a blatant lie, that gives birth to the criminal fraud and conspiracy

the SEC has initiated, to steal the monetary awards from its own whistleblowers

12 - 2013 OWB Report To Congress, Opening Message, Page 1

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Petitioner believes the lack of funds to cover the award eligible claims has led to

the unlawful withholding of his claim decision, which in turn, created the unreasonable

delay that has resulted. There is plenty of evidence to support this line of thinking, and

it seems more is being added every day.

This blatant abuse of power is displayed repeatedly, in the proposal authored by

SEC. In the footnotes SEC cites as its authority to make the proposed changes and

redefined terms, the power granted to SEC to implement the program. Not administer13

the program which is now in its eighth year.

We are relying on our broad rulemaking authority to propose the amendments in this section. As

noted earlier, Section 21F(j) of the Exchange Act, 15 U.S.C. 78u-6(j) grants us “the authority to issue such

rules and regulations as may be necessary or appropriate to implement” the whistleblower award

program. Similarly, Section 23(a)(1) of the Exchange Act, 15 U.S.C. 78w(a)(1), expressly provides the

Commission the “power to make such rules and regulations as may be necessary or appropriate to

implement the provisions” of the Exchange Act, and has long been understood to provide the

Commission with broad authority to issue rules and regulations carrying the force of law.

Within the proposal itself, there are dozens of references to the SEC

implementing the program in 2011. The program has been implemented. Petitioner

argues that the authority to rewrite and redefine and alter the original intentions of

Congress expired, and an act of Congress is needed to extend the authority.

13 2014 OWB Report to Congress, Opening message, Page 1

(Administered, not implemented)

During Fiscal Year 2014, the Office of the Whistleblower (“OWB” or “Office”) administered the Commission’s whistleblower program with an eye to furthering each of these objectives.

21

SEC notes that (“it) has long been understood to provide the Commission with

broad authority to issue rules and regulations carrying the force of law.” That

broad authority becomes an abuse of power when used to facilitate multiple felonies.

The “broad authority” granted relates to financial crimes, similar to the ones being

committed by the SEC, in this case.

SEC does not have the authority to alter rules for the purpose of committing,

conspiring to commit nor concealing criminal acts of conspiracy and theft by fraud of

whistleblower award money, potential misappropriation or larceny of the award funds

and / or potential cover up of one or the other or both.

Furthering this allegation, is the SEC’s stated intention of applying new

definitions to the existing rules under the guise of “clarifications,” whether the

proposal is approved or not. Those changes that are in complete opposition to the

clearly written rules, could In and of themselves, result in hundreds of claims being

denied which could not be denied without the rewrite by the SEC.

SEC is using the term “clarifications’ to avoid a grandfather provision, and SEC

indicates the intention of implementing those changes whether or not the

proposal is adopted.

"Although we are proposing this interpretive guidance for public comment, the

Commission may determine to rely on the principles articulated therein for any whistleblower claims that are currently pending because we believe

that this guidance clarifies the existing rules that define and apply the term

“independent analysis.” -SEC Release No. 34-83557; File No. S7-16-18], page

96.

22

SEC is requesting approval for “clarifications" they “MAY” decide to interpret

differently depending on a given situation, with or without consent of any regulatory

body, while claiming the underlying facts have always been interpreted in the proposed

way. If true, there would be no need to request approval for them. SEC offers a clue

that the agency is being deceitful with respect to the proposed 'clarifications’, beyond

the apologetic footnote above, in another:

“… In addition, we have broad definitional authority pursuant to Section 3(b) of the Exchange Act, 15 U.S.C. 78c(b), which provides us with the “power by rules and regulations to define … terms used in [the Exchange Act].” -SEC Release No. 34-83557; File No. S7-16-18], page 20.

Once again, the authority to create and define and redefine does not extend to

acts of criminal purpose and intent.

The changes as proposed grant the SEC such broad discretion14 to deny

claims, based on what SEC “believes, thinks or feels could have been inferred from

public sources” using 20/20 hindsight and including court documents and FOIA

requests had the whistleblower not provided a tip to the SEC, that the right of appeal is

essentially revoked.

Faced with budget cuts, the SEC seems to be intent on using creative financing

at the expense of its whistleblowers to generate cash, by refusing to pay awards. One

14 SEE The National Law Journal : Testing Power, SEC Wants More Discretion to Set Whistleblower Awards Available at https://www.law.com/nationallawjournal/2018/06/28/sec-testing-power-wants-more-discretion-toset-whistleblower-awards/

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need only look at the evidence SEC provides in the rule change proposal itself, to

realize the only thing SEC did not provide, was a signed confession.

SEC Whistleblower Blowing the Whistle on the SEC

The rule change proposal very clearly carries a theme in which it seeks to limit

awards and creates more restrictions and barriers in qualifying for awards. One

proposal seeks to create a fast track denial process, which offers less time for

claimants to submit reconsideration requests, before the denial orders becomes final. It

is designed to expedite denials, rather than what the SEC should be doing which is

expediting award eligible claims. The proposed changes are all about limiting awards

and increasing claim denials, and all have the commonality of paying out less and

retaining more for the SEC itself.

SEC claims its whistleblower program has been a success. For the SEC, that is

certainly true. For most Whistleblowers that risked and lost everything coming forward,

it has been an abysmal failure. The reality is this:

There have been 1180 award eligible cases posted to the SEC’s website since

the start of the Whistleblower program. In each case, the sanction was at least $1

million. Many were much, much higher. The whistleblower’s share ranges from 10 to

30 % of the money collected.

Of those 1180 Notices of Covered action (NOCA(s)), the SEC has issued just

129 final orders. Of those 129 final orders, only 42 have been award orders. The

remainder were denied. The SEC does not look to reward. The SEC seeks to find

24

justification to deny claims. SEC has only issued awards in 3.56% of eligible cases

since inception.

Some back of the napkin math can illustrate the point here. Each NOCA must

have had a minimum fine of $1 million. The maximum payout on a $1 million case,

would be $300,000.00. If we round down the NOCAs to be an even 1000, and multiply

that by the minimum 300,000.00 that should have been set aside, we arrive at a

minimum of $300 million that would need to be in place to cover all of the NOCAS

posted since inception, if all were fined just the $1 million minimum.

The award fund was established with $400 million. Combined that would mean

deposits into the fund, would be at least 700 million. Bear in mind of course, that most

of the fines levied by the SEC are often well over and beyond one million. Petitioner’s

claims at 30% are worth approximately $28 million combined, regarding 3 NOCAS.

The reality then is that deposits into the fund or monies set aside to be

deposited into the fund in a perfect world, would have surpassed $1 Billion the past 8

years. Such deposits were never made.

The fund was depleted instead, and again referring to the rule change proposal,

the SEC informs us that the statutory minimum balance was hit and triggered a

requirement that the SEC replenish the fund, earlier this year.

This is the “A-ha! Moment.” Based on the timing of the fund replenishment

requirement, it is easy to see how that event, would give birth to the ideas in the rule

change proposal, that have forced SEC to figure out a way to mass deny all the

existing claims in which the whistleblowers share was spent on other things, much like

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the criminals SEC prosecutes do by spending investor monies on private jets, yachts

and mansions.

The SEC is dealing with budget cuts already. SEC has paid out just over $250

million in awards since inception. How can it be then, that the fund triggered a statutory

minimum replenishment requirement?

Altered Reality: Changing the Rules, Changing the Outcome

How damaging are these changes to eligibility prospects? Severe! They even

ignore established precedents the SEC itself, established!

One such change ignores a precedent that was established when an award was

issued to a claimant that had submitted information directly to SEC rather than through

the TCR system, in which a sworn oath was allowed in place of the electronically

signed sworn statement that the TCR system requires.

SEC's proposed changes seek to require that to be eligible for an award,

information must have been submitted and sworn to via the TCR portal. Meaning that

even though the Petitioner’s information was submitted in a manner prescribed by SEC

as acceptable on that day, according to the Final Rules that have been in effect since

the start of the program and program precedent, SEC may deny the claims based on

the new rule, on the grounds it was not submitted through the TCR portal, which is

proposed to be a mandatory action that must have taken place in award to qualify for

an award

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Another disallows awards based on information derived from data that was

publicly available, even if in the petitioner's case, SEC would not have known what to

do with the information.

SEC would not have made the connections which exposed the naked short sale

scheme; in fact, SEC denied naked short selling existed and failed to investigate

complaints of the activity, for decades.

The SEC in its proposed rule change, states that it was never the intention of

Congress that an award should be paid to a whistleblower that submits information

based on publicly available information. (In fact, the SEC wants to deny claims in which

any public information is used in the discovery of a reported fraud. Yet again, in the

fine print of its own proposal, SEC reveals the truth behind the lie:

245 See S. REP. NO. 111-176 at 111 (2010). The Senate Report stated:

“‘Original information’ is defined as information that is derived from the

independent analysis or knowledge of the whistleblower and is not derived from

an allegation in court or government reports and is not exclusively from news

media. In circumstances when bits and pieces of the whistleblower’s information

were known to the media prior to the emergence of the whistleblower, and that

for the purposes of the SEC enforcement the critical components of the

information was supplied by the whistleblower, the intent of the Committee is to

require the SEC to reward such person(s) in accordance with the degree of

assistance that was provided.”

“… the intent of the Committee is to require the SEC to reward such person(s)…”]

One more time:

and one more time:

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“ informed the petitioner that he was the first and only person that

had brought these issues to the SEC's attention…” … “and that he was

forwarding all of it to the investigations division…”

There exists no other means to correct the injustices being played out here. The

Claims Review Staff at the SEC has approved all SEC final orders involving a

challenge to a preliminary determination, which as you may have guessed, is also

taken directly from the footnotes of the Rule Change Proposal.

The SEC has had the discretion since the start of its whistleblower program, to

award late filed claims that were filed late, for good reason. Although there have been

many such claims and appeals for reconsideration based on timeliness that the

claimant felt was excusable, the denial based on timeliness was upheld in every case.

Despite having the discretion to allow for claims to be paid, SEC has

demonstrated that it will not apply that discretion to the benefit of claimants. Consider

that the program was new, and as such, there was very little information available.

Attorneys were not familiar with the program, limiting the available counsel. In

petitioner’s case, he had no knowledge at the time that SEC had implemented a

whistleblower program.

According to the 2013 report by the OIG however, the process is spelled out,

and includes a statement that the SEC will call a whistleblower to advise them of

how to proceed and the timeline in which the tipster would have to submit the

required forms by.

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“When OWB or Enforcement staff know that a whistleblower has

provided a tip that led or significantly contributed to a successful action,

they contact the whistleblower and inform him or her that a Notice of

Covered Action has been posted on its website in connection with the tip

or information he or she provided. OWB also advises the whistleblower

on the process and timeline to apply for the award.”

This shows that the early submissions gave the impression that if the SEC knew

a tip had opened an investigation, that the SEC would contact the whistleblower. The

responsibility of having to figure it out was not mentioned in those early days. That

said, SEC refuses to award any claim submitted once the 90 day window had closed,

for any reason.

As the beneficiary of the award money that is not paid, of course SEC will use

its discretion to deny claims…discretion SEC seeks even more of within the proposal,

to further its abuse of power initiatives.15

The OIG report on SEC’s whistleblower program, which included a good amount

of input from OWB staff and the Division Chief, determined the Final Rules were

working as intended, were easy to understand and the program was being promoted

well.

Petitioner, was never advised of a 90 day window requirement, nor that he

would have to discover the action on the SEC’s website. One of his three claims in fact

15 The National Law Journal : Testing Power, SEC Wants More Discretion to Set Whistleblower Awards Available at https://www.law.com/nationallawjournal/2018/06/28/sec-testing-power-wants-more-discretion-toset-whistleblower-awards/

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was filed late, and he received a preliminary denial for that one claim, only, and

submitted a reconsideration request within the permitted time to do so. That was 6

months ago…

Even now, the OWB states that people can sign up to receive NOCA alerts. The

Petitioner is signed up for those alerts and several others from the SEC. Petitioner has

NEVER to this day received a NOCA alert and thinking he may have failed to sign up

for them, has revisited the SEC’s website and adjusted the notifications again and

again, and still has never received a NOCA alert.

The SEC, having discretionary authority to award claims that are filed

late, has never done so. SEC has denied all of them, as well as every reconsideration

request received. The SEC when left to its own discretion, will deny a claim for any

reason it can find, as evidenced by the mere 42 award orders that have resulted from

1180 award eligible cases over the past 8 years, and is about to grant itself even more

discretion, to superimpose the will of the SEC to justify the denials of even more

claims, over the intentions of Congress and the will of the American people the

Congress represents, in a manner that makes appeal pointless, as no appeal can

overcome discretion, when the law is erased and individual perception is substituted.

There are dozens more examples in the proposal, which cannot be addressed

due to word limits regarding this petition. Petitioner strongly urges the Court to review

the proposal and advises that the SEC has indicated it may implement those terms

without the approval of the Commission, which makes this Petition the only hope, for a

lot of people…petitioner included.

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Reasons Writ Should Issue

As this Court has held, “Claims of unreasonable agency delay clearly fall into

that narrow class of interlocutory appeals from agency action over which we

appropriately should exercise our jurisdiction.” Telecommunications Research and

Action Center v. FCC, 750 F.2d 70, 79 (D.C. Cir. 1984) (“TRAC”). 16

Mandamus petitions may be considered under the TRAC standard: “whether the

agency’s delay is so egregious as to warrant mandamus.” The TRAC standard involves

six factors:

1. The time agencies take to make decisions must be governed by a “rule

of reason”;

It has been 27 months since SEC received Petitioner’s claims. 20-17

months have passed since the deadline SEC established when SEC told

Petitioner to expect a decision by approx. year-end 2016, or by the first

quarter of 2017, at the latest. It has been approximately a year and a

half since SEC informed Petitioner that his claims were complete and as

such, they had no follow-up questions to ask, implying the process of

determining award eligibility, was completed.

2. where Congress has provided a timetable or other indication of thespeed with which it expects the agency to proceed, that statutory

scheme may supply content for this rule of reason;

16 John Doe V SEC, USCA Case #15-1444 Document #1587949 Filed: 12/10/2015

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“…But at the same time, it balanced that goal against the interest in “providing

finality to the application period so that the Commission can begin the process

of assessing any applications and making a timely award to any qualifying

whistleblowers[.]” SEC Release No. 34-64545 at 172, 76 Fed. Reg. 34299, 34343

(June 13, 2011) 2011 WL 2045838 at *80 (emphasis added).17

3. delays that might be reasonable in the sphere of economic regulation

are less tolerable when human health and welfare are at stake: Petitioner

eluded to retaliation he has faced, that is not employment related. Petitioner

fears for his life and as such, has sought a speedy resolution in this matter.

The details of which have been sent to the SEC and FBI, without response.

Petitioner reserves the right to submit such as a separate addendum, or in a

manner specified and requested by this Court.

a. the court should consider the effect of expediting delayed action on

agency activities of a higher or competing priority. The competing

priority here is obvious. SEC intends to change the rules, with the

intention of fraudulently altering claims from eligible to ineligible, in a

matter of days.

17 See John Doe V SEC, USCA Case #15-1444 Document #1587949 Filed: 12/10/2015

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4. the court should also consider the nature and extent of the interests

prejudiced by delay; Interests include the public trust in our markets and

the regulators that oversee them. If the SEC can perpetrate such a fraud,

how then can it prosecute fraud? How can the SEC be trusted to protect

investors when it steals from its own whistleblowers? How can the

whistleblower program be trusted by anyone weighing the potential risks and

loss of their career if at the end of the day, the SEC picks the pocket of the

people that came forward and leaves them with nothing?

5. and the court need not find “any impropriety lurking behind agency

lassitude” to hold that agency action is unreasonably delayed.

Impropriety abounds! Not applicable!

The Petitioner has sought the assistance of his elected officials, who are simply

unavailable to him. This Court is the Petitioner’s only option, and this Petition is his

only chance to prevent the theft of his once certain monetary award.

The SEC has indicated that it may apply select changes to the rules as

well as their definitions/ understandings, with or without the approval to do so,

on what amounts to be on an as needed basis, per the discretion of the SEC, knowing

that the discretion in and of itself, prevents any potential appeal of being successful for

a claimant.

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“We acknowledge the potential that certain aspects of the proposed rule

might make it more difficult for whistleblowers to respond to the denial of award

applications.”18 -

Having issued only 42 award orders in 8 years out of 1180

potential award eligible cases, SEC is seeking to make it more difficult,

and wants to invalidate valid claims. That was NOT the intention of the

program. The SEC is operating above the law, changing terms as SEC

sees fit to change or twist the meanings of rules, to avoid its

responsibilities under a contract SEC entered into to get out of paying for

the service that was rendered, in this case by the Petitioner, whom kept

up his end of the deal and jumped through every hoop SEC put in the

way, until now.

A writ of mandamus here would send a clear message to the SEC, that this

Court has taken notice, which should suffice to correct the abuse of power being

displayed

and allow the SEC to police itself and remedy the internal problem it clearly has, on its

own. Ideally, for the good of all, that is a best-case scenario at this point. Finally,

granting mandamus in this case would not pose a danger of diverting resources from

higher priorities. Petitioner’s claim has in all likelihood been decided already.

18 SEC rule change proposal – page 153

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Moreover, and perhaps more importantly, a writ of mandamus will allow the SEC

to withdraw its rule change proposal on its own initiative, rather than be the subject of a

writ of prohibition that this Court may on its own motion, issue as well.

Conclusion

There is sufficient evidence in the rule change proposal submitted by the SEC

itself, to indicate the agency has withheld the decision unlawfully, to change the

outcome and reverse the decision to an unappealable denial, with willful intent to

defraud the petitioner out of the monetary award he has certainly earned.

With that in mind, whatever the reason is that the SEC has set aside award

eligible claims in order to change them into ineligible claims through the rule changes

the agency intends to put into place, the SEC is violating Federal Law, the public trust

and putting our markets at risk, by doing so.

While the SEC is not under a specific legal deadline beyond the established

"timely manner" requirement, the SEC set a deadline for itself, when SEC told

Petitioner he "should EXPECT a decision by approximately year end 2016, or first

quarter of

2017, at the latest." The decision is long overdue based on the estimated time that

was given, to a point of cruelty.

A writ of mandamus is appropriate. Issuing a writ of mandamus here would send

a message that fraud of any type, will not be tolerated in our markets, nor in the

oversight of them. The ONLY reason to apply the proposed changes (with or

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without approval), is to alter the eligibility for an award on existing claims that

are pending.

The order to render a proper decision under the established rules, which will be

review-able by this Court, should require an immediate decision, as it has more likely

than not, already been made and unlawfully withheld, and should prohibit the

application of unlawful rule changes SEC may invent, before a final Commission order

is made in Petitioner's case, given the clear abuse of power being exhibited by SEC.

STATEMENT OF RELIEF SOUGHT

Pursuant to 5 U.S.C. § 706(1) and 28 U.S.C. § 1651(a), petitioner John Doe

requests that the Court issue a writ of mandamus directing the Securities and

Exchange Commission (“SEC”) to issue a decision, prior to the implementation of new

rules, changes to existing rules and definitions / clarifications which can negatively

affect award eligibility, within 30 days, under 17 C.F.R. § 240.21F-10(d) on Petitioner’s

applications for monetary awards under the SEC’s Whistleblower Program, and

according to the Final Rules and precedents established by SEC & Congress that

created and have governed the Whistleblower Program since inception.

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