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August 17, 1993


The opinion of the court was delivered by: LOUIS L. STANTON

 Because the SEC has voluntarily terminated its examination (and permitted withdrawal) of Treats' most recent post-effective amendment, the only remaining issue is whether the SEC's continuing investigation of Treats should be enjoined.

 The United States, as sovereign, is immune from suit save as it consents to be sued. Lehman v. Nakshian, 453 U.S. 156, 160, 101 S. Ct. 2698, 2701, 69 L. Ed. 2d 548 (1981). Treats brings this action under the Administrative Procedure Act, 5 U.S.C. § 501 et seq. ("APA"), of which section 702 waives immunity from suits against administrative agencies by providing that any person "adversely affected or aggrieved by agency action . . . is entitled to judicial review thereof."

 However, section 701(a) renders the waiver inapplicable where "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." The Court of Appeals for the Second Circuit in Sprecher v. Graber, 716 F.2d 968, 974-75 (2d Cir. 1983), discussed that provision in the context of a similar action seeking to enjoin an SEC investigation:

The legislative history of Section 702 amply demonstrates that Congress did not intend to waive sovereign immunity where a matter is statutorily committed to agency discretion or where "another statute provides a form of relief which is expressly or impliedly exclusive." H.R. No. 94-1656, p. 3, 94th Cong.2d Sess., reprinted in U.S. Code Cong. & Ad. News, 6121, 6123 (1976). See also id. at 6132-33.
* * *
We see no reason to conclude other than that Section 78u(c) [action challenging an SEC subpoena] is the exclusive method by which the validity of SEC investigations and subpoenas may be tested in the federal courts. While the existence of dual and non-exclusive proceedings to challenge such matters is not unthinkable, it is sufficiently anomalous and disruptive of existing practice for us to call for some specificity of purpose to that end on Congress's part. No such purpose is evident. To the contrary, the sole reason for authorizing plenary abuse of process actions in addition to Section 78u(c) proceedings would be a fear that judicial scrutiny in the latter is too circumscribed. That purpose, however, collides head on with the express intention of the Congress in enacting Section 702 to preserve existing "limitations on judicial review."

 The point was ruled on explicitly and directly in Sprecher v. Von Stein, 772 F.2d 16 (2d Cir. 1985), a later action by the same appellant:

This marks appellant's fourth attempt to obtain relief for alleged SEC misconduct in the conduct of an investigation.
The disposition of this appeal is in large part governed by our decision in Graber, supra. Thus, appellant contends that the district court erred in dismissing his complaint and granting summary judgment against him on his request that the court "supervise" the SEC's conduct of its investigation. Summary judgment was proper on this claim, since the district court was without jurisdiction to award such relief. A district court has no jurisdiction to award non-monetary relief against an agency on a claim that is is conducting an improper investigation where another statute provides an exclusive avenue of redress, or where the action complained of is committed to agency discretion. Graber, 716 F.2d at 974. The exclusive method for testing the validity of the SEC's investigatory motives or methods is a contested subpoena enforcement proceeding under 15 U.S.C. § 78u(c), Graber, 716 F.2d at 975, which appellant waived by voluntarily answering the only subpoena ever addressed to him in the inquiry.

 772 F.2d at 18 (citations omitted).

 The same result follows if one employs the analysis set forth in Heckler v. Chaney, 470 U.S. 821, 105 S. Ct. 1649, 84 L. Ed. 2d 714 (1985), where the Supreme Court addressed the apparent "tension between a literal reading of § a(2) which exempts from judicial review those actions committed to agency 'discretion,' and the primary scope of review prescribed by § 706(2)(A)--whether the agency's action was 'arbitrary, capricious, or an abuse of discretion.'" 470 U.S. at 829, 105 S. Ct. at 1654 (emphasis in original). The Court determined that the § 701(a)(2) exception applies "if the statute is drawn so that a court would have no meaningful standard against which to judge the agency's exercise of discretion. In such a case, the statute ('law') can be taken to have 'committed' the decisionmaking to the agency's judgment absolutely." 470 U.S. at 830, 105 S. Ct. at 1655. Thus, the APA precludes judicial review of those discretionary agency actions for which "no judicially manageable standards are available for judging how and when an agency should exercise its discretion." Ibid.

 Under that analysis, the issue is whether the legislative materials respecting the agency supply judicially manageable standards for judging how and when the SEC should exercise its discretion to investigate possible securities violations.

 In determining whether a "meaningful standard" exists for review of agency action, courts have considered the statutory language and structure, the statutory history, the nature of the agency action, and the regulations promulgated under the statute. See, Dina v. Attorney General of the United States, 793 F.2d 473 (2d Cir. 1986); Singh v. Moyer, 867 F.2d 1035 ...

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