The United States District Court for the District of Columbia recently dismissed Stephen M. Silberstein’s complaint to mandate the SEC to adopt rules regarding disclosure of political contributions. Among other things, the Court found that a claim under § 706(1) of the Administrative Procedures Act can proceed only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take. The SEC did not deny the petition; it merely failed to respond to it. Since the SEC did not deny the petition and the plaintiff did not assert that the SEC “failed to act in response to a clear legal duty,” it followed that the plaintiff failed to state a valid APA claim upon which relief can be granted.
Not to be deterred, Mr. Silberstein has filed a complaint seeking a writ of mandamus. Mr. Silberstein seeks to require the SEC to act immediately on his rulemaking petition and issue an explanation of its decision to grant or deny the petition that will permit further judicial review.
According to Mr. Silberstein, the Administrative Procedure Act grants to all interested persons “the right to petition for the issuance, amendment, or repeal of a rule.” 5 U.S.C. § 553(e). The APA places a corresponding duty on agencies receiving such petitions to respond “within a reasonable time.” 5 U.S.C. § 555(b). If an agency fails to respond to a petition, a reviewing court may “compel agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. § 706(i).