right our third case for this morning is eric langer against the securities exchange commission raise those issues because of the settlement mr huang reentered into in july two thousand and twelve to bring to an end a lengthly cost litigation he agreed to settle without admitting or denying in exchange for industry that right to reapply however has been an empty one can you give me examples of other instances in which the commission having given someone a right to reapply and warning them that quote this application however just not guarantee rianne tree period close quote has granted the unlimited right to re enter the business that mr instead of incrementally showing somebody who's willing to sponsor you and then expanding and then eventually opening it up without qualifications i think you hit on the magic word that sponsorship but other people frequently get sponsorship the commission cites many such instances in its briefings and one can find more on in the records that may be true that may be true there have been other cases the plot actually for somebody with a rather minor  problems begin with with lots of people willing to vouch for his integrity but here's the problem is soon as that order was entered finra posted on its broker check website permanently bar but they all do that i mean what's why is this different i can't understand why mr wang or is different from all the other people who get orders like this who find a way incrementally to get  business the attempts he made at brokerage house that investment advisory firms at other places said to him you're too much of a regulatory risk the f c c says other people find somebody why couldn't he he was on a he made his best efforts to all the entities that he could talk to twenty thirty whatever the numbers were they said we can't you're a regulatory risk you have a regulatory bull's eye and you're back to the business risk we can have the f c c come in here and examine us how those other people did it i mean he was asking the wrong people who didn't want the f c c taking a look at their books i don't know how far the man must go or gypsy has looked around chicago where he lives and attempted many places and they've all said no this is after you go to california step moved or go how far do you have to go before you say you have created the government has created a set of conditions i cannot meet you put something up there called permanently bar ed and foreclosed me from any opportunities but the issue has to be if that was the agreement if the deal struck was that there would be right to reenter after one year it's not what it says what it says is the  reapply and it says this affleck ation does not guarantee free entry if it had said you have a right to react or after a year this would be a completely different case he would have long since every entered with sad a couple  to the staff at the time they signed this consent settlement and in order to get the settlement said to his then lawyer his right to reapply is going to be virtually be granted and the staff said just stay out of the honor reliability when dealing with the government the government cannot cut a deal and all of a sudden say that's not what our deal is our documents said we do not promise re entry but up to staff also says we're virtually guaranteed to come back in you are correct your honor but that document says what it says yes but people aren't entitled to rely on what the government proposes and how they propose it are they or should you rely on the written order the problem is and have done this for thirty years this is boilerplate not be change it cannot be changed and never will be changed really or sign it or you don't you don't have a choice why didn't he choose not to settle it in half because when he was working through the administrative process the steps that he took to try to get a fair hearing before the ministry of law just didn't occur he denied subpoenas he was told by witnesses that he asked to come to testify that they had been contacted by this is the staff they weren't going to come in there dale james denied out of hand his motion to dismiss without written opinion every step that he took and you try to take a petition for review from an order you think you can see reviewable orders if if there's a breakdown of the process before an agency this court sits to hear those sorts of cases as to the other courts of appeals except for the statutory breakdown in the process and he exhausted all the commission level remedies courts exist to address exactly those kinds of problems and back to the order again the order said you wave all your rights to appeal you have to come back you bright green with that word or that i'm saying counter factually if he had chosen not to settle and to go through the processes before the s e c and was unhappy with the outcome litigant has to say this is so costly and i can't keep going through this when the process is working against me that he decides to take a deal with the government in which the government lawyers tell be virtually guaranteed you are correct about that document says what it says to waive all rights to appeal and there's no guarantee no guarantee and essentially application will be subject to the applicable law this i suppose gets us into that little one ninety three business but the commission says that the way it handles re entry is this incremental approach and he never did present an application to reenter that followed the commission's normal pattern of supervised activity he was on able to he couldn't meet the conditions with finra sane is permanently bar they themselves would be subject to but there's no reason to think that if you go to the commission and you say this is the arrangement where proposing why would it look at that skeptically that's what they want you to do as you raised that i sat down with the chief counsel of the division force from my former agency and said to them that here's where we are we're seven years into this process here's what he would like to do he would like to set up his own shop or he would like to go to work with a private equity firm and he said no it's in the public interest that this man remain barred for life for the conversation occurred it was flat out denied we were left with no other option o a minute because it looks to me like you're a day late electronically signed which is very common in today's world and the order posted on the website was an unsigned version but the next day june the eleventh i believe the order is which shows it's a screenshot individual orders order of respondents his name type of order other approval signature peterson jill seven ten twenty seventeen and so on it's and to count the time from the signed order there is no evidence that it's not signed on the tenth the document that is signed on july twelfth my jewel peterson handwritten signature is different than what was posted on the mr wayne has tried to fall through and because of the conditions set up just in impossible for him to meet it i'd also point out that he's far as i'm in ministry of lodges that you're talking about that matters now before the  all right if you want to save a little time for rebuttal i do you can do that thank you your honor may may please may i please the court daniel major for the securities and exchange commission this court this case like a little water mr somebody could some this case should be decided on the threshold issue of time when this mr wagner did not file his petition for review within sixty days after the entry of the commission order as both the exchange act and the advisors his petition six hundred sixty three days after the date found in the orders caption so it's untimely so so of the things you put at the end of your brief are you relying on this screenshot on page essay five for what do you find on the show the what caption shows i mean it in the first place we're relying on the fact that the caption at the orders caption is dated july tenth and under the year when you look at the end the average commission order there's a there's think in the case name at the top and the release numbers and then there's the date and that's what's referred to as the caption date and that's you know an easy way to figure out it was intense so so we're looking here in the blueberry could be a wine which says order denying application for consent to associate and it says the upper left hand corner to clock starts and at the same time the commission's rules ensure adequate notice and time to prepare the petition for review they require prompt service that's one forty one b but that was the point of rule one forty right to clarify exactly when the clock starts running it exactly there was uncertainty in the court of appeals and the caption people was intended to eliminate him and to get around that straightforward conclusion that he was three days later he mr weiner speculates that the order was not actually signed on the caption but the evidence refutes that argument for first of all just the caption data itself is evidence that the commission complied with its own rules here there's no evidence it didn't so that you know of itself it's a piece of evidence we also have the assistant secretaries declaration but she signed the order on july tenth hard instead of looking at the letter date or anything just shouldn't look at the caption on the order and yeah i think i think he looks everywhere but where the rules in the case law tell you tell you to look which is the caption because  statutory deadlines are mandatory and binding and failure to comply necessitates does not set sixty days embodied in the statute it is so and so i'm not that i think it makes a lot of difference here because the commission's relying on it but under bowles against russell i thought that statutory dates for filing appeals were of jurisdictional quality not just mandatory and binding and rule based date such as the one we have in the criminal rules are mandatory rules to be sure but they are way too little they're not jurisdictional and anyway so this is probably not the case to worry about it yeah arguments for why they are jurisdictional under bowles as you as you say but this isn't that is a case where that has to be decided because there are mandatory in binding and it's clear that they aren't complied with with respect to their the merits i just want to respond to a few of the points that mr opposing counsel made he suggested he's been put into a catch twenty two  words significantly easier cases in which to gain the commission's consent does the commission keep public statistics of a any sort on how many such application received each year and how many are granted how many deny even anonymously let's say i'm not aware of the official statistics i can cite you know obviously the four cases in the order that three cases in the last year there are several cases in addition i think that the label on the finra broker check website was entirely accurate the fact is mr wang or consented to a bar a bar that was indefinite he didn't have any right to reenter the industry unfettered after one year his right was a limited right to apply for reentry under the commission's rules and those rules limit re entry to reentry in a limited capacity with a particular employer under specific terms and conditions that are intended to safeguard the public interest me and the there was no inaccuracy in finra its representation of his sanction  working with clients and managing client funds and so it it makes sense that the commissioner of the pool would require a set of safeguards to be in place an adequate plan of supervision before it allows  really entry and here all we had all the commission had before it was an application that sought unfettered reentry with no conditions and no supervision the commission is never granted an application anywhere close to that  and so it simply saw the application before it and denied it and mr wanger is free to have to submit another application that complies with the commission's rules but he has no right to  re enter on unfettered terms simply because it was difficult for him to meet those terms those terms and rules are there to protect the public so do you have any comment on this or show poem's remarks about representation is made but staff of the commission at the time we entered into the settlement agreement and i think one thing you say in your brief is that settlement agreement itself isn't really even before us here it is exactly i mean the first thing i would say is there is simply no evidence an identified member of his legal team but i view the important point is that what he signed and the consent order that was issued the plain language of those documents contradict any notion that he was a reentry those documents make clear as you said your honor that reentry is not guaranteed that it has done fold according to the commission's rules and the commission has discretion when denying it when considering those applications that that was issued after his application was filed so it could affect his application but in any event it's hardly surprising or not foreseeable that the commission would focus its limited limited resources barred that that makes sense is an allegation of scarce resources and it was hardly foreseeable not foreseeable at the time he was deciding whether to enter this consent agreement if there are no further questions your respect to digital signatures and we pointed out in their reply brief the commission proposed a rule to have a digital type signature of s last angel whatever for commission orders if there was never passed it was never got approved so we're swear at the signing rule the caption day rule has been long gone the staff comments he said there is no record of that point in our appendix to a one forty see it says all commission or shall be signed in one forty c says dated entries date of signing the caption date rule that soon be the making of publicly available fine if you want to make orders as far as this one ninety three versa two or three at the point of supplying an alternative method under two and three up it was time for the commission to allowed to make a decision to let him have some type of business opportunity start again start over whatever terms and conditions a lot of the commission want to vote but been fine we couldn't meet one ninety three so give us the opportunity to three under the finra matter ok and you and you can wrap up with this yes over time the finra matter the finra could have easily put on their right to reapply mr wang his counsel asked him to change it they refused the only time he got change you can believe this the new york times took an interest in this case called the finra and said why do you have permanent bar why does it say right to reapply the changed in response to a journalist ok then as soon as the order was denied they went back but if you look at it now it says bart a