Deuce Everhart; Brian Boll; Howard Dal Monte v. United States Securities and Exchange Commission

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEUCE EVERHART; BRIAN
BOLL; HOWARD DAL MONTE,
Petitioners,
v.
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION,
Respondent.
No. 22-2049
Securities and Exchange
Commission
MEMORANDUM*
On Petition for Review of an Order of the
Securities and Exchange Commission
Argued and Submitted October 6, 2023
Honolulu, Hawaii
Before: BERZON, MILLER, and VANDYKE, Circuit Judges.
Deuce Everhart, Brian Boll, and Howard Dal Monte (collectively, Everhart)
petition for review of a decision of the Securities and Exchange Commission
denying their whistleblower award claim. We have jurisdiction under 15 U.S.C.
§ 78u-6(f), and we may set aside the agency’s decision if it was “arbitrary,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
OCT 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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capricious, an abuse of discretion,” “not in accordance with law,” or “unsupported
by substantial evidence.” Id.; 5 U.S.C. § 706(2)(A), (E). We deny the petition.
Under 15 U.S.C. § 78u-6(b)(1), whistleblowers are entitled to an award if
they provide the Commission with “original information . . . that led to the
successful enforcement” of federal securities law. Despite some suggestion to the
contrary in his briefs, Everhart made clear at oral argument that he does not
challenge the Commission’s factual findings that it (1) opened its investigation
because of the Wells Fargo companies’ decision to self-report and (2) did not rely
on Everhart’s tip. In any event, substantial evidence supports the Commission’s
findings: The declaration of a lead attorney involved in the matter that Everhart’s
tip had no bearing on the investigation is “relevant evidence [that] a reasonable
mind might accept as adequate to support a conclusion.” Western Truck
Manpower, Inc. v. United States Dep’t of Lab., 12 F.3d 151, 153 (9th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
In his briefs, Everhart principally argued that the Commission applied the
wrong legal standard and that the relevant question is whether his tip was of the
kind that should have caused the Commission to open an investigation, regardless
of whether the tip in fact had that effect. At oral argument, however, he expressly
disclaimed that theory. Given that concession, we accept the Commission’s
interpretation of the statute—which provides for the grant of awards to

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whistleblowers who offered information “that led to the successful enforcement”
action—as requiring that the information have caused or contributed to the
investigation. 15 U.S.C. § 78u-6(b)(1).
At oral argument, Everhart argued that even though the Commission’s staff
did not directly rely on his tip, the tip still led to the successful enforcement action
by triggering the Wells Fargo companies’ self-reporting. As Everhart
acknowledged, that theory was not raised before the agency or in his opening brief.
Because the argument was not raised until Everhart’s reply brief, it is forfeited.
Vasquez v. Rackauckas, 734 F.3d 1025, 1054 (9th Cir. 2013) (“Because we do not
consider issues raised for the first time in reply briefs, we deem this late-raised
argument forfeited.”).
PETITION DENIED.

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