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. 2

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 3

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, indiv