The Federal Trade Commission responded earlier this week to Bill Isely’s appeal of the Commission’s February order denying him restitution for the agency’s wrongful prosecution of him. Unfortunately, the Commission’s response came in the form of motion to dismiss the appeal for lack of jurisdiction — the FTC claims Isely filed his appeal with the 4th Circuit Court of Appeals 17 days past the statutory deadline.
There appears to be substantial confusion here. Normally there is a 60-day window to appeal an FTC decision, but it appears the statute governing attorney-fee awards allows only 30 days. Isely (and myself, to be honest) proceeded under the assumption that it was 60 days. Isely also said the 4th Circuit clerk told him it was 60 days. Even if that’s true, I’m not sure it matters. The 4th Circuit will likely say any failure to file an untimely pleading is the fault of the petitioner. Because in government-run courts, deadlines and rules are sacrosanct, at least for non-governmental parties.
For instance, I’d note that the current FTC chairman’s term of office expired eight months ago. Yes, he’s been nominated for a second term, but the Senate has yet to act on that. Yet “the law” somehow permits the chairman to continue exercising his power indefinitely beyond the deadline prescribed by statute. But we can’t make an exception for Bill Isely, a non-lawyer who merely got confused by conflicting statutes and advice.
More relevant to Isely’s case, FTC Secretary Donald Clark directly violated a federal statute when his office published Isely’s personal financial records on the Internet. There was no ambiguity here. Clark violated the law as written; he didn’t even try to deny it when I spoke with him about it. But the FTC took no action against Clark or anyone else. Again, the laws are applied to government officers quite liberally, yet they apply strictly and without mercy to those who lack state privilege.