Daniel C. Masters v. U.s. Securities & Exchange Commission

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL C. MASTERS,
Petitioner,
v.
U.S. SECURITIES & EXCHANGE
COMMISSION,
Respondent.
No. 22-70131
SEC No. 3-20051
MEMORANDUM*
On Petition for Review of an Order of the
Securities & Exchange Commission
Argued and Submitted March 31, 2023
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and SELNA,** District Judge.
Daniel C. Masters seeks review of a May 20, 2022 order of the United States
Securities and Exchange Commission (SEC) denying his motion to vacate a
September 23, 2020 order (the “2020 Consent Order”) and denying his motion to
FILED
APR 13 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable James V. Selna, United States District Judge for the
Central District of California, sitting by designation.

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be reinstated to appear or practice before the SEC. We have jurisdiction under 15
U.S.C. § 78y(a)(1), and we deny his petition.
Because Masters knowingly and voluntarily entered the 2020 Consent
Order, which included a waiver of all post-hearing procedures, see 17 C.F.R.
§ 201.240(a), (c)(4), the SEC did not err in concluding that Masters waived his
right to challenge the order. Nor did the SEC abuse its discretion in concluding
that, because Masters failed to show newly discovered evidence, fraud or
misconduct, an intervening change in law, or any other unforeseeable
circumstance, he failed to demonstrate that there were compelling circumstances to
support vacating the 2020 Consent Order. Bolan, S.E.C. Release No. 10640, 2019
WL 2324336, at *3 (May 30, 2019) (citation omitted); Feldman, S.E.C. Release
No. 10078, 2016 WL 2643450, at *2 (May 10, 2016).
Although it was not necessary for the SEC to reach Masters’s further
arguments, the SEC did not err in concluding that his arguments lacked merit.
Contrary to Masters’s assertions, the SEC had statutory jurisdiction over Masters’s
misconduct. See 15 U.S.C. §§ 77h-1(a), (f), (g)(1), 78d-3, 78o(b)(6), 78u(a)(1),
2

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78u-2, 78u-3(a), (f); 17 C.F.R. § 201.102(e)(1)(iii).1 Nor did the SEC err in
determining that regardless whether Masters’s conduct complied with the Federal
Rules of Civil Procedure or the Federal Rules of Bankruptcy Procedure, the SEC
had full authority to institute proceedings and impose sanctions under the
applicable securities laws.
Finally, the SEC did not abuse its discretion in concluding that Masters
failed to establish good cause to be reinstated to appear and practice before the
SEC due to the seriousness of his misconduct and the absence of other favorable
circumstances. 17 C.F.R. § 201.102(e)(5)(i). We do not have authority to address
Masters’s remaining contentions because he failed to raise them to the SEC. See
15 U.S.C. § 78y(c)(1).
PETITION DENIED.
1 Because administrative agencies like the SEC exercise executive power
under Article I, not judicial power under Article III, see Am. Ins. Co. v. 356 Bales
of Cotton, 26 U.S. 511, 512 (1828), see also Seila L. LLC v. CFPB, 140 S. Ct.
2183, 2234 n.7 (2020) (Kagan, J., concurring in part), Masters’s argument that the
SEC lacked Article III subject matter jurisdiction is inapplicable here.
3

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