RORY C. FLYNN, Petitioner,
UNITED STATES SECURITIES AND EXCHANGE COMMISSION, Respondent.
Argued: September 13, 2017
Petition for Review of an Order of the Merit Systems
Protection Board. (DC-1221-14-1124-W-1)
Christopher Flynn, Silver Spring, Maryland, for Petitioner.
Allison Kidd-Miller, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
M. Bettigole, EVERSHEDS SUTHERLAND (US) LLP, Washington,
D.C., for Petitioner.
Walker, David L. Peña, Laura Cunningham, Office of the
General Counsel, UNITED STATES SECURITIES AND EXCHANGE
COMMISSION, Washington, D.C.; Chad A. Readler, Acting
Assistant Attorney General, Robert E. Kirschman, Jr.,
Director, Commercial Litigation Branch, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
MOTZ, DUNCAN, and WYNN, Circuit Judges.
Petition denied in part, granted in part, and remanded for
further proceedings by published opinion. Judge Wynn wrote
the opinion, in which Judge Motz and Judge Duncan joined.
2013, Rory Flynn was fired from his position at the
Securities and Exchange Commission ("SEC, " or the
"Commission"). Flynn claims that his supervisor
terminated him in reprisal for raising concerns about his
section's alleged chronic inefficiency. Seeking redress
under a provision of the Whistleblower Protection Enhancement
Act, 5 U.S.C. § 2302(b)(8), Flynn filed suit. An
Administrative Judge determined that Flynn had not made any
protected disclosures and was thus not entitled to relief.
The Merit Systems Protection Board affirmed, and now Flynn
petitions this Court for review.
the petition in part, grant in part, and remand for further
August 2012, Rory Flynn began work as an Associate General
Counsel at the SEC. Flynn had previously spent twelve years
in the SEC's Division of Enforcement and then another
thirteen years with the Financial Industry Regulatory
Authority (and its predecessor). In his most recent position
with the Commission, Flynn helmed the Office of General
Counsel's Adjudication section. Known simply as
"Adjudication, " the section primarily assists the
Commission in deciding appeals from administrative law
judges, self-regulatory organizations, and the Public Company
Accounting Oversight Board.
starting with Adjudication, Flynn became alarmed by what he
viewed as an unacceptable backlog in unresolved cases based
on his reading of two provisions in the SEC Rules of
Practice: Rule 900(a) and Rule 900(b). See Informal
Procedures and Supplementary Information Concerning
Adjudicatory Proceedings, 17 C.F.R. § 201.900
900(a) provides that, "to the extent possible . . .
[o]rdinarily, a decision by the Commission with respect to an
appeal . . . should be issued within seven months from the
date the petition for review . . . is filed." 17 C.F.R.
§ 201.900(a). That said, if "the Commission
determines that the matter presents unusual complicating
circumstances, . . . a decision . . . may be issued within 11
months." Id. "[W]hen the Commission
determines that extraordinary facts and circumstances . . .
so require, " it has "discretion" to take even
further time to resolve the appeal. Id. Flynn
believed that Adjudication was consistently violating Rule
900(a) by not resolving appeals within the prescribed
timelines or obtaining Commission approval for extensions.
According to Flynn, when he began working in Adjudication,
approximately one-half of the section's docket did not
comply with the guidance set out in Rule 900(a).
also believed that Adjudication regularly violated Rule
900(b). Under that rule, if an appeal is not completed within
30 days of the timelines in Rule 900(a), "the General
Counsel shall specifically apprise the Commission of that
fact" with a report that "shall describe the
procedural posture of the case, project an estimated date for
conclusion of the proceeding, and provide such other
information as is necessary to enable the Commission to
determine whether additional steps are necessary to reach a
fair and timely resolution of the matter." 17 C.F.R.