PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 19-2252

____________

GUY GENTILE,

 Appellant

v.

SECURITIES & EXCHANGE COMMISSION

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-19-cv-05155)

District Judge: Honorable Jose L. Linares

____________

Argued: January 15, 2020

Before: HARDIMAN, PORTER, and PHIPPS,

Circuit Judges.

(Filed: September 10, 2020)

Adam C. Ford [Argued]

Ford O’Brien 

575 5th Avenue, 17th Floor

New York, NY 10017
2

Counsel for Appellant

Matthew S. Ferguson [Argued]

Samuel M. Forstein

United States Securities & Exchange Commission

100 F. Street, N.E.

Washington, DC 20549

Counsel for Appellee

____________

OPINION OF THE COURT

____________

PHIPPS, Circuit Judge.

Congress often confers significant investigative powers 

upon administrative agencies, such as the Securities and 

Exchange Commission. Those powers commonly include the 

ability to seek testimony and documents through 

administrative subpoena. In this case, Guy Gentile asserts that 

the SEC abused its investigative authority through several 

unauthorized administrative subpoenas, to the detriment of his 

businesses. He sues under the Administrative Procedure Act

(APA) to hold unlawful and set aside the SEC’s investigation

under which the subpoenas were issued. But his suit cannot 

proceed because sovereign immunity shields federal agencies 

from suit. And although the APA broadly waives sovereign 

immunity, that waiver does not extend to challenges to an 

agency’s decision to investigate. For that reason, on de novo

review, we will affirm the order dismissing Gentile’s 

complaint for lack of subject matter jurisdiction.
3

I.

Guy Gentile and the Securities and Exchange 

Commission are not strangers. Their acquaintance dates back 

to 2012 when the SEC investigated Gentile for his role in a 

penny-stock manipulation scheme in 2007-08. Later, the SEC 

civilly sued Gentile, and he was indicted for securities fraud 

violations. Gentile challenged both suits, leading to their 

dismissals on timeliness grounds, but this Court reinstated the 

SEC’s civil suit. See SEC v. Gentile, 939 F.3d 549, 552-53, 

566 (3d Cir. 2019). 

This case involves a separate SEC investigation, one

related to securities transactions through an unregistered 

broker-dealer in violation of Section 15 of the Securities and 

Exchange Act of 1934. See 15 U.S.C. § 78o(a). The subject 

of that investigation – Traders Café LLC, a day-trading firm –

maintained an account with Gentile’s Bahamian broker-dealer, 

which was not registered in the United States. The SEC issued 

a Formal Order of Investigation into Traders Café on 

November 25, 2013. But later, without issuing a new Formal 

Order of Investigation, the SEC informed Gentile that he was 

a target in that investigation. 

As part of its investigation, the SEC has twice 

subpoenaed Gentile for testimony – once in March 2016 and 

again in December 2017. He refused to comply with those 

subpoenas, and despite having the ability under the Exchange 

Act to initiate an action to enforce those subpoenas, see 

15 U.S.C. § 78u(c), the SEC has not done so. 

Instead, the SEC has pursued other options for obtaining 

information, and it has not been shy about serving subpoenas 
4

on other entities associated with Gentile. Two subpoena 

recipients – Gentile’s personal attorney and an entity affiliated 

with Gentile’s Bahamian broker-dealer – refused to comply 

with the SEC’s subpoenas. The SEC commenced enforcement 

actions against those entities in the Southern District of Florida

in February 2019.

1

 

Gentile saw those actions as an opportunity to challenge 

the legitimacy of the SEC’s then six-year investigation, which 

he alleges was ruining his businesses,2and he moved to 

intervene in those cases. The District Court in Florida denied 

Gentile’s motions, reasoning that Gentile lacked a sufficient 

interest in the subpoenas to merit intervention.3 The Court 

1 See SEC v. Marin, No. 1:19-mc-20493-UU, Application for 

Order, (S.D. Fla. Feb. 6, 2019) (seeking to compel nonprivileged testimony and documents from Gentile’s personal 

attorney); SEC v. MinTrade Techs., LLC, No. 1:19-mc-20496-

KMW, Application for Order, (S.D. Fla. Feb. 6, 2019) (seeking 

to compel documents from an affiliate of Gentile’s Bahamian 

broker-dealer).

2 See, e.g., Compl. ¶ 10 (App. 26) (“Several banks and vendors 

have stopped doing business with Mr. Gentile as a result of 

receiving these subpoenas.”), ¶ 57 (App. 36) (“As a result of 

receiving the SEC subpoenas, [two] banks decided to close all 

bank accounts related to Mr. Gentile.”), ¶ 85 (App. 42) 

(“Similarly, Citibank and Key Bank dropped Mr. Gentile as a 

client as a result of the subpoenas that the SEC sent to them 

during or prior to September 2017.”).

3 See Marin, No. 19-20493 at ECF No. 55, pg. 9 (May 31, 

2019) (“[T]he undersigned finds that Gentile has not shown 

that he has a legally protected interest in this matter.”); 
5

explained that Gentile would have other, more concrete 

opportunities to challenge the legitimacy of the SEC’s 

investigation, such as if the SEC brought an action to enforce 

the subpoenas served on him or if the SEC initiated a civil suit 

against him.4 Gentile did not appeal those rulings, and the 

District Court in Florida ordered compliance with each 

subpoena.5 

Gentile challenged the legitimacy of the SEC’s 

investigation on another front as well. On February 8, 2019, 

two days after the SEC commenced the subpoena enforcement 

actions in Florida, Gentile filed this lawsuit in the District of 

New Jersey. See Compl. (App. 23-46). His complaint sought 

a declaration that the Traders Café investigation was unlawful. 

See id. at 24 (App. 46). It also requested the quashing of the 

SEC’s investigative subpoenas served in connection with the 

Traders Café investigation and an injunction to prevent the 

SEC from using the fruits of that investigation against him. See 

id. 

In response, the SEC moved to dismiss that action for 

lack of subject matter jurisdiction. It argued that the doctrine 

MinTrade, No. 19-20496 at ECF No. 27, pg. 5 (May 28, 2019) 

(“First, we find that Gentile has failed to show that he possesses 

a legally protectable interest in these proceedings.”). 

4 See Marin, No. 19-20493, at ECF No. 64 (Sept. 30, 2019); 

MinTrade, No. 19-20496 at ECF No. 34 (July 17, 2019); see 

also App. 1027; App. 1227. 

5 See Marin, Order, No. 19-20493, at ECF No. 63 (Sept. 30, 

2019); MinTrade, Order, No. 19-20496, at ECF No. 39 

(Nov. 13, 2019). 
6

of sovereign immunity barred Gentile’s suit for three reasons: 

(i) Gentile was not challenging a final agency action, see 

5 U.S.C. § 704; (ii) the APA did not allow judicial review 

because the Exchange Act provided the exclusive mechanism 

for challenging an SEC-issued investigative subpoena, see

15 U.S.C. § 78u(c); and (iii) the SEC’s investigation was a 

matter committed to agency discretion by law, see 5 U.S.C. 

§ 701(a)(2). 

The District Court granted the SEC’s motion to dismiss

and denied a preliminary injunction motion that Gentile had 

also filed. In doing so, the District Court rejected the SEC’s 

finality argument. But the Court dismissed Gentile’s suit on 

sovereign immunity grounds by following a chain of reasoning 

from the Second Circuit in Sprecher v. Graber, 716 F.2d 968 

(2d Cir. 1983). The Sprecher sequence begins by accounting

for a proviso in the APA’s waiver of sovereign immunity, see 

5 U.S.C. § 702, which makes explicit that the APA’s waiver 

does not affect other limitations on judicial review. The next 

step in the analysis determines that an SEC-initiated 

enforcement action under the Exchange Act, see 15 U.S.C. 

§ 78u(c), provides the exclusive mechanism for disputing 

SEC-issued investigative subpoenas. Under the Sprecher

reasoning, by providing the exclusive method for challenging 

a subpoena, the Exchange Act limitsjudicial review. Thus, due 

to the proviso, the APA’s waiver of sovereign immunity could 

not expand the Exchange Act’s limitation on judicial review –

leaving Gentile’s complaint barred by sovereign immunity. 

With that conclusion, the District Court did not address the 

SEC’s final argument, that sovereign immunity insulated its 

actions from judicial review because they were committed to 

agency discretion by law. 
7

The District Court’s order dismissing for lack of 

jurisdiction was final for purposes of appeal. Gentile timely 

appealed that order, bringing this case within the appellate 

jurisdiction of this Court. See 28 U.S.C. § 1291; Gould Elecs. 

Inc. v. United States, 220 F.3d 169, 174 n.2 (3d Cir. 2000). He 

now argues that the District Court erred by following the 

Sprecher analysis. The SEC counters first by defending the 

Sprecher reasoning and second by contending that its decision 

to investigate is unreviewable as a matter committed to agency 

discretion by law. On that second point, the SEC prevails.

II.

A. THE APA’S WAIVER OF SOVEREIGN IMMUNITY IS 

BROAD, BUT IT IS SUBJECT TO CONDITIONS AND 

EXCEPTIONS.

Because the SEC’s subpoenas have harmed his 

businesses, Gentile sues the SEC to challenge the legitimacy 

of its investigation. But the United States and its agencies are 

generally immune from suit under the doctrine of sovereign 

immunity. See FDIC v. Meyer, 510 U.S. 471, 475 (1994). And 

absent congressional authorization – through an unequivocal 

statutory waiver – it is “unquestioned” that the federal 

government retains sovereign immunity. Alden v. Maine, 

527 U.S. 706, 749 (1999); see also FAA v. Cooper, 566 U.S. 

284, 290 (2012) (“We have said on many occasions that a 

waiver of sovereign immunity must be ‘unequivocally 

expressed’ in statutory text.”). A statutory waiver of sovereign 

immunity thus defines the scope of a “court’s jurisdiction to 
8

entertain the suit.” United States v. Sherwood, 312 U.S. 584, 

586 (1941); see also Meyer, 510 U.S. at 475. 

In light of that jurisdictional limitation, Gentile attempts 

to bring claims for declaratory and injunctive relief under the 

APA’s waiver of sovereign immunity, codified at 5 U.S.C. 

§ 702. As originally enacted, § 702 did not contain an 

unequivocal waiver of sovereign immunity.

6

 Instead, it 

imposed a ‘statutory standing’ requirement on judicial review, 

which, as amended, provides that: 

A person suffering legal wrong because of 

agency action, or adversely affected or aggrieved 

by agency action within the meaning of a 

relevant statute, is entitled to judicial review 

thereof. 

5 U.S.C. § 702. 

Statutory standing under § 702 depends on agency 

action. To have such standing, a person must suffer a legal 

wrong because of agency action or, under the zone-of-interests 

test, a person must be “adversely affected or aggrieved by 

agency action within the meaning of a relevant statute.” 

6 See Administrative Procedure Act, Pub. L. No. 79-404, 

§ 10(a), 60 Stat. 237, 243 (June 11, 1946); see also Pub. L. No. 

89-554, 80 Stat. 378, 392 (Sept. 6, 1966) (codifying the 

provision at 5 U.S.C. § 702). 
9

5 U.S.C. § 702; Ass’n of Data Processing Serv. Orgs., Inc. v. 

Camp, 397 U.S. 150, 153 (1970).7

The 1976 amendments to the APA supplemented § 702. 

The added text explicitly waived sovereign immunity to sue 

the United States for “relief other than money damages”: 

An action in a court of the United States seeking 

relief other than money damages and stating a 

claim that an agency or an officer or employee 

thereof acted or failed to act in an official 

capacity or under color of legal authority shall 

not be dismissed nor relief therein be denied on 

the ground that it is against the United States or 

that the United States is an indispensable party. 

Pub. L. No. 94-574, 90 Stat. 2721, 2721 (Oct. 21, 1976); see 

also 5 U.S.C. § 702.

To ensure that that broad waiver of sovereign immunity 

did not overtake pre-existing limitations on judicial review, the 

1976 amendments conditioned the waiver through two 

provisos:

Nothing herein (1) affects other limitations on 

judicial review or the power or duty of the court 

to dismiss any action or deny relief on any other 

appropriate legal or equitable ground; or 

(2) confers authority to grant relief if any other 

7 See also Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 395-96

(1987); Shalom Pentecostal Church v. Acting Sec’y U.S. Dep’t 

of Homeland Sec., 783 F.3d 156, 163-64 (3d Cir. 2015).
10

statute that grants consent to suit expressly or 

impliedly forbids the relief which is sought.

Pub. L. No. 94-574, 90 Stat. 2721, 2721 (Oct. 21, 1976); see 

also 5 U.S.C. § 702.

Putting the pieces together, to proceed under the APA’s 

waiver of sovereign immunity a person must (i) possess 

statutory standing; (ii) seek relief other than money damages; 

and (iii) not be excluded by the waiver’s two provisos. 

As a further limitation, two exceptions apply to the 

APA’s waiver of sovereign immunity. See Heckler v. Chaney, 

470 U.S. 821, 828 (1985) (“[B]efore any review at all may be 

had, a party must first clear the hurdle of [5 U.S.C.] § 701(a).”). 

Under the first exception, the APA’s waiver of sovereign 

immunity does not apply when “statutes preclude judicial 

review,” either for an entire subject matter8 or for a specific 

class of persons.9 5 U.S.C. § 701(a)(1). The second exception 

8 See Dunlop v. Backowski, 421 U.S. 560, 567-68 (1975)

(requiring evidence that Congress meant to preclude “all 

judicial review” of a decision of the Secretary of Labor); see 

also Traynor v. Turnage, 485 U.S. 535, 543-45 (1988) 

(reversing a determination that a statute, 38 U.S.C. § 211(a), 

precluded review of a claim to extend the period for obtaining 

veterans education benefits); Lindahl v. Office of Pers. Mgmt., 

470 U.S. 768, 779-80 (1985) (declining preclusion because the 

statute did not bar judicial review of all aspects of civil service 

claims for disability).

9 See, e.g., Block v. Cmty. Nutrition Inst., 467 U.S. 340, 345-

48 (1984) (interpreting the Agricultural Marketing Adjustment 
11

prevents judicial review of “agency action [that] is committed 

to agency discretion by law.” 5 U.S.C. § 701(a)(2).

B. THE ONLY DISCRETE AGENCY ACTION CHALLENGED IN 

GENTILE’S COMPLAINT IS THE SEC’S FORMAL ORDER 

OF INVESTIGATION OF TRADERS CAFÉ.

Gentile seeks very broad relief. His complaint prays 

that the SEC’s investigation be deemed an unauthorized abuse 

of process, that all subpoenas be quashed, and that the SEC be 

barred from using any evidence obtained from the subpoenas 

“for any purpose in any future proceeding.” Compl. at 24 

(App. 46). Each of those requests for relief other than money 

damages depends on the legal question of whether the SEC has 

legal authority to investigate him. Without such authority, the 

SEC could not permissibly investigate Gentile, issue 

subpoenas, or initiate further proceedings. 

But the APA’s statutory standing requirement excludes 

from judicial review legal questions untethered to agency 

action. 5 U.S.C. § 702. Rather, the APA’s waiver of sovereign 

immunity extends only to challenges to agency action. See id. 

To that end, the APA enumerates several specific categories of 

agency action. See 5 U.S.C. § 551(13) (defining “agency 

action” so that it “includes the whole or a part of an agency 

rule, order, license, sanction, relief, or the equivalent or denial 

thereof, or failure to act”). Those categories are exemplary, not 

Act to preclude consumers from challenging milk marketing 

orders).
12

exhaustive,10 and the APA also enables a person to challenge 

“some particular ‘agency action.’” Lujan v. Nat’l Wildlife 

Fed’n, 497 U.S. 871, 891 (1990). Thus, the APA allows 

challenges to discrete agency action, but not broad challenges 

to the administration of an entire program. Such programmatic 

challenges “cannot be laid before the courts for wholesale 

correction under the APA.” Id. at 893. 

Under those standards, Gentile’s complaint challenges 

only one discrete agency action: the SEC’s Formal Order of 

Investigation of Traders Café. Gentile argues that the Formal 

Order of Investigation exceeds the SEC’s authority because it 

does not have a sufficient nexus to his conduct and because it 

allows a retributive investigation.11 By attacking the Formal 

10 See, e.g., U.S. Army Corps of Eng’rs v. Hawkes Co., 

136 S. Ct. 1807, 1811, 1813 (2016) (permitting judicial review 

under the APA of a “jurisdictional determination” by Army 

Corps of Engineers); Bennett v. Spear, 520 U.S. 154, 177-78 

(1997) (permitting judicial review under the APA of a 

“biological opinion” issued by the Fish and Wildlife Service). 

But see Norton v. S. Utah Wilderness All., 542 U.S. 55, 62-63 

(2004) (holding that a “failure to act” means only “a failure to 

take one of the agency actions (including their equivalents) 

earlier defined in § 551(13)”). 

11 See Compl. ¶ 101 (App. 45) (describing the controversy as 

concerning “(a) the authority of the [SEC] to investigate 

individuals under a [Formal Order of Investigation] which has 

no nexus to them, and (b) the authority of the [SEC] to 

investigate an individual for more than five years after a 

[Formal Order of Investigation] has issued for purposes that 

are plainly punitive and retributive . . . .”). 
13

Order of Investigation, Gentile seeks to invalidate the entire 

Traders Café investigation including the administrative 

subpoenas served in connection with the investigation. 

Those administrative subpoenas also constitute a 

discrete agency action. But Gentile’s complaint does not seek 

to quash those subpoenas based on any attribute of any 

individual subpoena. Rather, Gentile aspires to undermine the 

SEC’s authority for this investigation – with the consequence 

of nullifying all subpoenas in the matter. Without challenging

any individual subpoena or disputing any other discrete agency 

action, the only agency action challenged by Gentile’s 

complaint is the SEC’s Formal Order of Investigation. 

C. THE FIRST PROVISO IN THE APA’S WAIVER OF 

SOVEREIGN IMMUNITY DOES NOT BAR GENTILE’S 

CHALLENGE TO THE FORMAL ORDER OF 

INVESTIGATION.

To defend itself, the SEC leads with the Sprecher

argument. The SEC starts with the Second Circuit’s 

conclusion that subpoena enforcement actions under the 

Exchange Act, “are the exclusive method by which the validity 

of SEC investigations and subpoenas may be tested in federal 

courts.” Sprecher, 716 F.2d at 975. From that premise, the 

SEC argues that by providing the exclusive dispute 

mechanism, the Exchange Act imposes a limitation on judicial 

review. Thus, according to the SEC, Gentile’s action falls 

outside the APA’s waiver of sovereign immunity due to the 

first proviso, which ensures that the APA’s waiver does not 
14

override “other limitations on judicial review.” 5 U.S.C. 

§ 702. 

But that argument supposes that Gentile’s complaint 

challenges individual SEC subpoenas. And while Gentile does 

seek to quash every subpoena, he does so not due to any 

particularized defect in any subpoena. Rather, he does so by 

challenging the legality of the Formal Order of Investigation. 

And by directing his challenge to the SEC’s Formal Order of 

Investigation, Gentile avoids the SEC’s Sprecher argument, 

which involved a challenge to individual subpoenas – not

solely a direct challenge to the agency’s decision to open an 

investigation. Thus, regardless of whether § 78u(c) of the 

Exchange Act provides the exclusive mechanism for 

challenging a subpoena, it does not bar Gentile’s challenge to 

a Formal Order of Investigation. 

D. THE SEC’S DECISION TO OPEN A FORMAL 

INVESTIGATION IS NOT SUBJECT TO JUDICIAL REVIEW. 

The SEC next argues that due to the exception for 

“agency action committed to agency discretion by law,”

5 U.S.C. § 701(a)(2), sovereign immunity prevents judicial 

review of its Formal Order of Investigation. That is correct: an 

agency decision to exercise its investigative power overcomes 

the “basic presumption” in favor of judicial review of agency 

action. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967). 

The § 701(a)(2) exception applies only in “those rare 

circumstances where the relevant statute is drawn so that a 

court would have no meaningful standard against which to 

judge the agency’s exercise of discretion.” Lincoln v. Vigil, 

508 U.S. 182, 191 (1993) (internal quotation marks and 
15

citations omitted); see also Weyerhaeuser Co. v. U.S. Fish & 

Wildlife Serv., 139 S. Ct. 361, 370 (2018). Those situations 

often involve “a complicated balancing of a number of factors 

which are peculiarly within [the agency’s] expertise.” Chaney, 

470 U.S. at 831. And precedent has identified several classes 

of agency decisions governed by a “tradition of 

nonreviewability.” ICC v. Bhd. of Locomotive Eng’rs, 

482 U.S. 270, 282 (1987). Those include decisions to refrain 

from enforcement or investigative activity,12 decisions 

12 Chaney, 470 U.S. at 838 (“[A]gency refusals to institute 

investigative or enforcement proceedings [are committed to 

agency discretion], unless Congress has indicated otherwise.”);

S. Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 461-

64 (1979); Am. Disabled for Attendant Programs Today v. U.S. 

Dep’t of Housing & Urban Dev., 170 F.3d 381, 384 (3d Cir. 

1999) (opining, in a failure to investigate case, that Chaney

“established a presumption against judicial review of agency 

decisions that involve whether to undertake investigative or 

enforcement actions” (emphasis in original)); see also Webster 

v. Doe, 486 U.S. 592, 608 (1988) (Scalia, J., dissenting) (“A 

United States Attorney’s decision to prosecute, for example, 

will not be reviewed on the claim that it was prompted by 

personal animosity.”); United States v. Nixon, 418 U.S. 683, 

693 (1974) (“[T]he Executive Branch has exclusive authority 

and absolute discretion to decide whether to prosecute a case . 

. . .”); see generally Sec. & Exchange Comm’n v. WheelingPittsburgh Steel Corp., 648 F.2d 118, 127 n.12 (3d Cir. 1981) 

(collecting cases); Leighton v. Sec. & Exchange Comm’n, 

221 F.2d 91, 91-92 (D.C. Cir. 1955) (per curiam) (“The 

discretionary character of the [SEC]’s action [to refuse to 

investigate] likewise removes it from Section 10 of the [APA], 
16

implicating intelligence and national security concerns,13 and 

the spending of lump-sum appropriations.

14

As with those scenarios, a decision to investigate 

involves a complicated balancing of several factors peculiarly 

within the agency’s expertise, including the allocation of 

scarce resources. Most acutely bearing on this case are the 

Supreme Court’s holdings that agency decisions not to 

investigate, Seaboard Allied Milling, 442 U.S. at 461-64, and 

not to prosecute, Chaney, 470 U.S. at 838, are committed to 

agency discretion by law. 

Yet the same set of considerations governs both 

decisions to investigate and decisions not to investigate. And 

without judicially manageable standards to evaluate those 

considerations, an agency decision to investigate is similarly 

committed to agency discretion by law. Nor has Congress by 

statute or the SEC by regulation articulated specific standards 

governing a decision to initiate an investigation under the 

Exchange Act.15 Thus, without judicially manageable 

which excepts from its provisions for judicial review agency 

action committed by law to agency discretion.”).

13 Webster, 486 U.S. at 600-01.

14 Lincoln, 508 U.S. at 192-93; see also State of N.J. v. United 

States, 91 F.3d 463, 471 (3d Cir. 1996).

15 See 15 U.S.C. § 78u(a) (“The Commission may, in its 

discretion, make such investigations as it deems necessary to 

determine whether any person has violated, is violating, or is 

about to violate any provisions of [the SEC].”); 17 C.F.R. 

§ 200.66 (stating only that “[t]he requirements of the particular 
17

standards, an agency’s decision on whether to investigate is a 

matter committed to agency discretion by law. 

Gentile attempts to avoid this outcome by limiting his 

challenges to two components of the SEC’s investigation: its

nexus to him and its allegedly retributive motive. See Compl. 

¶ 101 (App. 45). But the exception in § 701(a)(2) pertains to 

“agency action [that] is committed to agency discretion by 

law,” and thus it shields the entirety of an agency action that is 

committed to agency discretion by law. 5 U.S.C. § 701(a)(2) 

(emphasis added). A litigant cannot, therefore, avoid the 

exception by challenging only the most problematic 

component of an agency action that is committed to agency 

discretion by law. And here, because an agency decision to 

investigate fits within the § 701(a)(2) exception, targeted 

piecemeal challenges to that action fall outside of the APA’s 

waiver of sovereign immunity. 

In sum, while even the SEC recognizes that its “power 

to investigate carries with it the power to defame and destroy,”

17 C.F.R. § 200.66, the doctrine of sovereign immunity bars 

Gentile’s direct challenge under the APA to the SEC’s decision 

to open an investigation.

 * * *

For these reasons, Gentile’s complaint had to be 

dismissed for lack of subject matter jurisdiction, and we will 

affirm the judgment of the District Court. 

case alone should induce the exercise of the [SEC’s] 

investigatory power”).