White v. United States Securities and Exchange Commission

17-3717
White v. United States Securities and Exchange Commission

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT
=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, 1
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 2
New York, on the 20
th
day of April, two thousand twenty. 3
4
PRESENT: 5
GUIDO CALABRESI, 6
ROSEMARY S. POOLER, 7
MICHAEL H. PARK, 8
Circuit Judges. 9
_____________________________________ 10
11
Paul White, 12
13
Petitioner, 14
v. 17-3717 15
16
United States Securities and Exchange 17
Commission, 18
19
Respondent. 20
_____________________________________ 21
22
FOR PETITIONER-APPELLANT: J
ON ROMBERG (Danielle Falzone, Nicolette 23
Fata, on the brief), Seton Hall University 24
School of Law, Newark, NJ. 25
26
FOR RESPONDENT-APPELLEE: R
ACHEL M. MCKENZIE, Senior Counsel 27
(Robert B. Stebbins, General Counsel, 28
Michael A. Conley, Solicitor, Tracey A. 29
Hardin, Assistant General Counsel on the 30
brief), Securities and Exchange 31
Commission, Washington, D.C. 32

1
Appeal from an order of the U.S. Securities and Exchange Commission (“the 1
Commission”) dismissing review proceedings. 2
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 3
DECREED that the judgment of the Commission is AFFIRMED. 4
Petitioner-Appellant Paul White appeals from the Commission’s September 29, 2017 order 5
which dismissed proceedings to review an initial decision by an Administrative Law Judge 6
(“ALJ”) barring White from associating with a broker, dealer, investment adviser, municipal 7
securities dealer, or transfer agent, and from participating in penny stock offerings. The 8
Commission dismissed review proceedings after White failed to file a brief that complied with the 9
word limitations prescribed in the Commission’s Rules of Practice. We assume the parties’ 10
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 11
“The Administrative Procedure Act, which applies to our review of [Securities and 12
Exchange] Commission orders, provides that a reviewing court shall ‘hold unlawful and set aside 13
agency action, findings, and conclusions found to be . . . arbitrary, capricious, an abuse of 14
discretion, or otherwise not in accordance with law.’” MFS Sec. Corp. v. SEC, 380 F.3d 611, 617 15
(2d Cir. 2004) (citation omitted) (quoting 5 U.S.C. § 706(2)). 16
After the Commission granted White’s petition for review—which argued, among other 17
things, that the ALJ violated his rights to due process and equal protection by failing to address 18
his argument that the ALJ’s appointment violated the Appointments Clause of the U.S. 19
Constitution—the agency ordered White to submit a brief in support of his petition for review and 20
instructed that “failure to file a brief in support of the petition may result in dismissal of this review 21
proceeding.” Sp. App’x 18-19. The order specifically cited the Commission’s Rules of Practice 22

2
governing form, service, content, and length, and provided that extensions of time to file briefs are 1
disfavored. 2
The Commission granted White an extension of time in which to file his brief in view of 3
his pro se and incarcerated status. After White filed an overlength brief, cf. 17 C.F.R. 4
§§ 201.450(c)-(d) (providing that opening briefs shall not exceed 14,000 words, and that a brief of 5
30 pages or less is presumptively considered to be within that limit), the Commission in a May 22, 6
2017 order directed him to file a compliant brief by June 9, 2017. White filed a motion asking the 7
Commission to reconsider accepting his overlength brief or to grant him an extension of five to 8
seven weeks to file a compliant brief. On June 14, 2017, the Commission declined to reconsider 9
its rejection of White’s overlength brief, but granted White a five-week extension, until July 14, 10
2017, to file a compliant opening brief. 11
White did not file a compliant brief. On September 29, 2017, the Commission issued an 12
order dismissing review proceedings. Its order noted that “White’s failure to file a compliant brief, 13
or otherwise respond to the [Commission’s extension] order, is consistent with his earlier actions 14
that led the [administrative] law judge to find him in default and, in our view, evidences a disregard 15
for the Commission’s processes.” Sp. App’x 23. 16
The Commission did not abuse its discretion by dismissing review proceedings. The 17
Commission alerted White that failure to file a brief in support of his petition could result in the 18
dismissal of his review proceeding, it directed White to the relevant Rules of Practice, and it 19
provided White two extensions of time in which to file a compliant brief. White failed to do so. 20
We cannot say the Commission’s subsequent decision to dismiss review proceedings constitutes 21
an abuse of discretion. See MFS Sec. Corp., 380 F.3d at 617; see also 17 C.F.R. § 201.180(c) 22

3
(providing that the Commission may dismiss proceedings where respondent has failed “[t]o cure 1
a deficient filing within the time specified”). 2
White argues that the Commission acted arbitrarily and capriciously by failing to consider 3
a filing that it received on June 19, 2017. In the filing, denoted a “Reply to the Division’s 4
Respondent’s Motion For Reconsideration and to Extend Time to Re-File Brief,” White requested 5
“at least seven(7) weeks” to re-write his overlength brief. Supp. App’x 63, 64. But this filing 6
made no new arguments beyond those already made in his motion requesting reconsideration or 7
an extension of time, and the Commission had already granted White a five-week extension 8
pursuant to his original motion, which requested an extension of five to seven weeks to write and 9
submit a brief that complied with the agency’s word limits. The Commission did not abuse its 10
discretion by declining to revisit its earlier ruling granting White a five-week extension as he 11
originally requested. 12
We have considered all of White’s remaining arguments and find them to be without merit. 13
Because we conclude that the Commission did not abuse its discretion by dismissing review 14
proceedings, we need not decide whether the ALJ’s appointment violated the Appointments 15
Clause, whether 15 U.S.C. § 78y(c) places jurisdictional limitations on this court’s review, or 16
whether White properly preserved his objections to the ALJ proceedings by “urg[ing]” them before 17
the Commission, as required by the Securities Exchange Act, 15 U.S.C. § 78y(c), and the 18
Investment Advisers Act, 15 U.S.C. § 80b-13(a). 19
Accordingly, we AFFIRM the judgment of the Commission. 20
FOR THE COURT: 21
Catherine O=Hagan Wolfe, Clerk of Court
22