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No. 11-55169
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ANDERSON et al.,
Plaintiffs-Appellants
v.
CHRISTOPHER COX, et al.,
Defendants-Appellees.
______________________________
)
)
)
)
)
)
)
)
)
)
DEFENDANTS-APPELLEES’ RENEWED MOTION FOR SUMMARY
AFFIRMANCE AND STAY OF BRIEFING SCHEDULE
APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Case No. SACV 10-00031 JVS (MLGx)
ANDRÉ BIROTTE JR.
United States Attorney
LEON W. WEIDMAN
Assistant United States Attorney
Chief, Civil Division
KEITH M. STAUB [SBN: 137909]
Assistant United States Attorney
Federal Building, Room 7516
300 North Los Angeles Street
Los Angeles, California 90012
Telephone: (213) 894-7423
Attorneys for Defendants-Appellees
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DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY AFFIRMANCE
AND STAY OF BRIEFING SCHEDULE1
I.
INTRODUCTION
Pursuant to Circuit Rule 3-6, Defendants-Appellees CHRISTOPHER COX,
MARY L. SCHAPIRO, CYNTHIA A. GLASSMAN, PAUL S. ATKINS, ROEL
C. CAMPOS, ANNETTE L. NAZARETH, TROY A. PAREDES, LUIS A.
AGUILAR, ELISSE B. WALTER, and KATHLEEN L. CASEY, all of whom are
current and former Chairmen and/or Commissioners of the Securities and
Exchange Commission (hereinafter referred to as “SEC”), hereby move the Court
to summarily affirm the district court’s dismissal of Plaintiffs-Appellants David
Anderson, Nelson L. Reynolds, Sheila Morris, Patrick Cluney, Robert Hollenegg,
Allan Treffry and Reece Hamilton’s (hereinafter referred to as “Appellants”) First
Amended Complaint and to stay the briefing schedule until the motion for
summary affirmance is resolved.
Appellants are shareholders in CMKM Diamonds, Inc. (“CMKM”). The
action arises out of the sale of stock from CMKM to Appellants, the corporation’s
On October 2 1 7, 2011, this Court denied the SEC’s motion for summary
affirmance, without prejudice to renewal following the filing of the opening brief.
Dkt. Entry 15.
1
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subsequent resolution to self-liquidate, and the alleged involvement of the SEC in
that process. Appellants contend that during the liquidation of CMKM’s assets,
the SEC repeatedly delayed distribution of money recovered and held in trust for
Appellants. Appellants’ First Amended Complaint asserts claims for declaratory
judgment and deprivation of their Fifth Amendment rights under the Takings
Clause and Due Process Clause.
On appeal, Appellants argue that the Fifth Amendment to the U.S.
Constitution protects their property interest in receiving distribution of assets that
were allegedly collected upon liquidation of CMKM’s assets, pursuant to Bivens
v. Six Unknown Agents of Fed. Bur. of Narc., 403 U.S. 388, 297 (1971). AOB 2.2
This Court should summarily affirm the district court’s dismissal of the
action for the following reasons: (1) Appellants’ Takings Claim is not cognizable
because they do not have a proprietary interest in the funds sought; Broad v.
Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996); (2) Appellants’ Due Process
Claim fails because they have no legitimate claim of entitlement to the funds
[Board of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972)] and because
they do not have a property interest in the funds when the SEC retains discretion
2 “AOB” refers to Appellant’s opening brief followed by the applicable page
number.
2
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to disburse those funds [Erickson v. United States, 67 F.3d 858, 862 (9th Cir.
1995)]; and (3) Appellants’ claims against the SEC Commissioners in their official
capacities are barred by sovereign immunity; Hodge v. Dalton, 107 F.3d 705, 707
(9th Cir. 1997).
Because this appeal is clearly controlled by precedent, this Court should
summarily affirm the district court’s dismissal. See United States v. Hooton, 693
F.2d 857, 858 (9th Cir. 1982)(per curiam).
II.
STATEMENT OF FACTS AND CASE
A. Appellants’ Factual Allegations
Appellants owned shares of CMKM stock. (ER 34.)3 In 2005, the SEC
imposed a temporary suspension of trading of CMKM stock based on concerns
over the adequacy of publicly available information, and then brought an
administrative proceeding alleging CMKM had failed to file required reports. (ER
39-40.)
In July 2005, an SEC administrative law judge found the facts to be as
alleged by the SEC in the administrative proceeding. (ER 41-42.) The SEC de-
3 “ER” refers to Appellant’s Excerpts of Record followed by the applicable
page number.
3
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registered the CMKM stock in October 2005. (ER 42.) CMKM then started to
wind up its affairs by selling its assets. (Id.)
Appellants allege that SEC Appellees Glassman, Atkins, Campos and the
United States Department of Justice (with alleged assistance from the Department
of Homeland Security) operated a “sting operation” and used CMKM to “trap[] a
number of widely-disbursed [sic] persons who were believed to be engaged in
naked short selling of CMKM Diamonds Inc. stock.”4 (ER 45-47.) In a settlement
between CMKM and the short sellers, the short sellers allegedly “promised to pay
negotiated amounts to a frozen trust for disbursal [sic] at a later time” in return for
a promise that the United States government would not prosecute them. (ER 48.)
Appellants further allege that money was “collected for the benefit of the
shareholders of CMKM... [and] have been placed in a trust, or are otherwise now
held in trust, by the Depository Trust & Clearing Corporation [“DTCC”], a
privately-owned clearing house for all secured financial transactions which take
place in the United States, and the United States Treasury, pursuant to a Trust
Agreement on behalf of the shareholders.” (Emphasis added) (ER 49.)
4 The FAC does not define or explain naked short selling, and resolution of
this motion does not require definition of that practice. However, some general
information on naked short selling is available at www.sec.gov/ spotlight/
keyregshoissues.htm.
4
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Appellants further allege that SEC Appellees “held and hold the sole and
absolute discretion to determine when moneys collected pursuant to the scheme
set forth above would and could be released for distribution.” (ER 49-50.)
Appellants allege that “[d]emand for release of said moneys has been repeatedly
presented to [SEC Appellees], and each of them, without result.” (ER 50.)
Appellants contend that the SEC’s repeated failure to distribute money
collected in the trust constitutes a taking of property under the Fifth Amendment
to the United States Constitution. (ER 54-55.) Based on these alleged events,
Appellants assert claims for deprivation of their civil rights against current and
former Chairmen and/or SEC Commissioners, in their individual and official
capacities, under Bivens.
B. Procedural Background
On August 2, 2010, the district court dismissed the original complaint, with
leave to amend, because Appellants failed to identify a viable property interest,
which is a necessary predicate to claims under the Takings Clause and Due
Process Clause.5 (ER 78; Clerk’s Record 15.)
On September 21, 2010, Appellants filed a First Amended Complaint
(“FAC”) for declaratory judgment and deprivation of their Fifth Amendment
5 See, e.g., Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir.
1996)(Takings Clause); Brewster v. Bd. of Educ. of the Lynwood Unified Sch.
Dist., 149 F.3d 971, 982 (9th Cir. 1998)(Due Process Clause).
5
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Rights under the Takings Clause and the Due Process Clause. (ER 24.) Pursuant
to the SEC’s motion to dismiss, on December 6, 2010, the district court dismissed
the FAC, with prejudice. (ER 3.)6
III.
ARGUMENT
A. The Court Should Grant Summary Affirmance
Summary affirmance of the district court’s dismissal is appropriate when “it
is clear from the face of the appellant’s pleadings that . . . the appeal is patently
insubstantial or clearly controlled by precedent . . . .” In re Keith, 508 F.3d 1225,
1227 (9th Cir. 2007); See also United States v. Hooton, 693 F.2d 857, 858 (9th Cir.
1982) (per curiam).
1. The district court properly dismissed Appellants’ Takings
Claim
As the district court noted, Appellants’ Takings Claim fails because such a
claim is not cognizable under the alleged facts. Broad, 85 F.3d at 430. In Broad,
this Court considered the Takings Claim of a number of shareholders who
challenged the creation of a trust that favored one group of shareholders over
6 In light of the district court’s disposition of the Takings Clause and Due
Process Clause claims, the court did not consider SEC Appellees’ argument that
their conduct was protected by qualified immunity. Saucier v. Katz, 533 U.S. 194,
200 (2001). (ER 3.)
6
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another. Id. at 425-426. In rejecting the Takings Claim, this Court noted that,
“almost universally,” Takings Claims involve rights to real property, and plaintiffs
cited no cases suggesting that the Takings Clause applied to their personal
property. Id. at 430. This Court further noted that shareholders did not “directly
own any part of a corporation’s property or assets,” and that shareholders merely
held a “proportionate interest in the corporate equity remaining after a corporation
meets all its other debts and obligations.” Id. Accordingly, this Court concluded
that “the plaintiff shareholders have no proprietary interest that could have been
taken.” Id.
Here, Appellants claim they are entitled to recover their interest in CMKM
stock that was placed in a trust. As in Broad, Appellants do not have a proprietary
interest in the funds that could have been taken under the Takings Clause. Thus,
the district court properly held that Appellants’ Takings Claim fails to state a
claim, and this Court should summarily affirm dismissal of that claim.
2. The district court properly dismissed Appellant’s Due Process
Claim
The district court properly dismissed Appellants’ Due Process Claim as
well. In asserting a procedural Due Process Claim, Appellants must establish:
(1) the deprivation of a constitutionally protected liberty or property interest; and
(2) a denial of adequate procedural protection. Brewster v. Bd. of Educ. of the
7
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Lynwood Unified School Dist., 149 F.3d at 982. Property rights are not created by
the Constitution, but are defined by independent sources such as state law,
statutes, ordinances, regulations or express and implied contracts. Board of
Regents of State Coll. v. Roth, 408 U.S. at 577 (“To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.”).
Indeed, Appellants concede that they have found no case authority
supporting the notion that a shareholder’s property right is Constitutionally
protected. AOB 32-33. Moreover, as the district court stated, Appellants have
asserted nothing more than a “unilateral expectation” of receiving funds but have
not demonstrated a “legitimate claim of entitlement” to such funds. (ER 3.)
Finally, to the extent Appellants claim that the SEC, in its discretion, wrongfully
denied release of the alleged trust funds, such a claim does not lie. An individual
has no property interest in a particular benefit where a government agency retains
discretion to grant or deny the benefit. See, e.g., Erickson v. United States, 67
F.3d 858, 862 (9th Cir. 1995); Greenwood v. FAA, 28 F.3d 971, 976 (9th Cir.
1994); Swanson v. Babbit, 3 F.3d 1348, 1353-54 (9th Cir. 1993).
8
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Therefore, this Court should summarily affirm the district court’s decision
to dismiss Appellants’ Due Process Claim because they have failed to establish a
legitimate claim of entitlement to, or a property interest in, the funds at issue.
3. The district court lacked subject matter jurisdiction for other
reasons
Appellants asserted claims against the SEC Commissioners in their official
capacities; such claims are barred by sovereign immunity. Hodge v. Dalton, 107
F.3d at 707. Accordingly, there is no jurisdiction over those claims.
B. Request to Stay Briefing
SEC Appellees seek a stay in the briefing schedule until this motion is
decided. Appellants’ brief was filed on December 5, 2011 and SEC Appellees’
answering brief is due January 4, 2012.
Dated: January 3, 2012 Respectfully submitted,
ANDRÉ BIROTTE JR.
United States Attorney
/s/ Keith M. Staub
KEITH M. STAUB
Assistant United States Attorney
Attorneys for Defendants-SEC Appellees
9
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Signature (use "s/" format)
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
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*********************************************************************************
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No. 11-55169
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ANDERSON et al.,
Plaintiffs-Appellants
v.
CHRISTOPHER COX, et al.,
Defendants-Appellees.
______________________________
)
)
)
)
)
)
)
)
)
)
DEFENDANTS-APPELLEES’ RENEWED MOTION FOR SUMMARY
AFFIRMANCE AND STAY OF BRIEFING SCHEDULE
APPEAL FROM
THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
Case No. SACV 10-00031 JVS (MLGx)
ANDRÉ BIROTTE JR.
United States Attorney
LEON W. WEIDMAN
Assistant United States Attorney
Chief, Civil Division
KEITH M. STAUB [SBN: 137909]
Assistant United States Attorney
Federal Building, Room 7516
300 North Los Angeles Street
Los Angeles, California 90012
Telephone: (213) 894-7423
Attorneys for Defendants-Appellees
Case: 11-55169 01/03/2012 ID: 8017505 DktEntry: 20-1 Page: 1 of 10 (1 of 11)
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DEFENDANTS-APPELLEES’ MOTION FOR SUMMARY AFFIRMANCE
AND STAY OF BRIEFING SCHEDULE1
I.
INTRODUCTION
Pursuant to Circuit Rule 3-6, Defendants-Appellees CHRISTOPHER COX,
MARY L. SCHAPIRO, CYNTHIA A. GLASSMAN, PAUL S. ATKINS, ROEL
C. CAMPOS, ANNETTE L. NAZARETH, TROY A. PAREDES, LUIS A.
AGUILAR, ELISSE B. WALTER, and KATHLEEN L. CASEY, all of whom are
current and former Chairmen and/or Commissioners of the Securities and
Exchange Commission (hereinafter referred to as “SEC”), hereby move the Court
to summarily affirm the district court’s dismissal of Plaintiffs-Appellants David
Anderson, Nelson L. Reynolds, Sheila Morris, Patrick Cluney, Robert Hollenegg,
Allan Treffry and Reece Hamilton’s (hereinafter referred to as “Appellants”) First
Amended Complaint and to stay the briefing schedule until the motion for
summary affirmance is resolved.
Appellants are shareholders in CMKM Diamonds, Inc. (“CMKM”). The
action arises out of the sale of stock from CMKM to Appellants, the corporation’s
On October 2 1 7, 2011, this Court denied the SEC’s motion for summary
affirmance, without prejudice to renewal following the filing of the opening brief.
Dkt. Entry 15.
1
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subsequent resolution to self-liquidate, and the alleged involvement of the SEC in
that process. Appellants contend that during the liquidation of CMKM’s assets,
the SEC repeatedly delayed distribution of money recovered and held in trust for
Appellants. Appellants’ First Amended Complaint asserts claims for declaratory
judgment and deprivation of their Fifth Amendment rights under the Takings
Clause and Due Process Clause.
On appeal, Appellants argue that the Fifth Amendment to the U.S.
Constitution protects their property interest in receiving distribution of assets that
were allegedly collected upon liquidation of CMKM’s assets, pursuant to Bivens
v. Six Unknown Agents of Fed. Bur. of Narc., 403 U.S. 388, 297 (1971). AOB 2.2
This Court should summarily affirm the district court’s dismissal of the
action for the following reasons: (1) Appellants’ Takings Claim is not cognizable
because they do not have a proprietary interest in the funds sought; Broad v.
Sealaska Corp., 85 F.3d 422, 430 (9th Cir. 1996); (2) Appellants’ Due Process
Claim fails because they have no legitimate claim of entitlement to the funds
[Board of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972)] and because
they do not have a property interest in the funds when the SEC retains discretion
2 “AOB” refers to Appellant’s opening brief followed by the applicable page
number.
2
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to disburse those funds [Erickson v. United States, 67 F.3d 858, 862 (9th Cir.
1995)]; and (3) Appellants’ claims against the SEC Commissioners in their official
capacities are barred by sovereign immunity; Hodge v. Dalton, 107 F.3d 705, 707
(9th Cir. 1997).
Because this appeal is clearly controlled by precedent, this Court should
summarily affirm the district court’s dismissal. See United States v. Hooton, 693
F.2d 857, 858 (9th Cir. 1982)(per curiam).
II.
STATEMENT OF FACTS AND CASE
A. Appellants’ Factual Allegations
Appellants owned shares of CMKM stock. (ER 34.)3 In 2005, the SEC
imposed a temporary suspension of trading of CMKM stock based on concerns
over the adequacy of publicly available information, and then brought an
administrative proceeding alleging CMKM had failed to file required reports. (ER
39-40.)
In July 2005, an SEC administrative law judge found the facts to be as
alleged by the SEC in the administrative proceeding. (ER 41-42.) The SEC de-
3 “ER” refers to Appellant’s Excerpts of Record followed by the applicable
page number.
3
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registered the CMKM stock in October 2005. (ER 42.) CMKM then started to
wind up its affairs by selling its assets. (Id.)
Appellants allege that SEC Appellees Glassman, Atkins, Campos and the
United States Department of Justice (with alleged assistance from the Department
of Homeland Security) operated a “sting operation” and used CMKM to “trap[] a
number of widely-disbursed [sic] persons who were believed to be engaged in
naked short selling of CMKM Diamonds Inc. stock.”4 (ER 45-47.) In a settlement
between CMKM and the short sellers, the short sellers allegedly “promised to pay
negotiated amounts to a frozen trust for disbursal [sic] at a later time” in return for
a promise that the United States government would not prosecute them. (ER 48.)
Appellants further allege that money was “collected for the benefit of the
shareholders of CMKM... [and] have been placed in a trust, or are otherwise now
held in trust, by the Depository Trust & Clearing Corporation [“DTCC”], a
privately-owned clearing house for all secured financial transactions which take
place in the United States, and the United States Treasury, pursuant to a Trust
Agreement on behalf of the shareholders.” (Emphasis added) (ER 49.)
4 The FAC does not define or explain naked short selling, and resolution of
this motion does not require definition of that practice. However, some general
information on naked short selling is available at www.sec.gov/ spotlight/
keyregshoissues.htm.
4
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Appellants further allege that SEC Appellees “held and hold the sole and
absolute discretion to determine when moneys collected pursuant to the scheme
set forth above would and could be released for distribution.” (ER 49-50.)
Appellants allege that “[d]emand for release of said moneys has been repeatedly
presented to [SEC Appellees], and each of them, without result.” (ER 50.)
Appellants contend that the SEC’s repeated failure to distribute money
collected in the trust constitutes a taking of property under the Fifth Amendment
to the United States Constitution. (ER 54-55.) Based on these alleged events,
Appellants assert claims for deprivation of their civil rights against current and
former Chairmen and/or SEC Commissioners, in their individual and official
capacities, under Bivens.
B. Procedural Background
On August 2, 2010, the district court dismissed the original complaint, with
leave to amend, because Appellants failed to identify a viable property interest,
which is a necessary predicate to claims under the Takings Clause and Due
Process Clause.5 (ER 78; Clerk’s Record 15.)
On September 21, 2010, Appellants filed a First Amended Complaint
(“FAC”) for declaratory judgment and deprivation of their Fifth Amendment
5 See, e.g., Broad v. Sealaska Corp., 85 F.3d 422, 430 (9th Cir.
1996)(Takings Clause); Brewster v. Bd. of Educ. of the Lynwood Unified Sch.
Dist., 149 F.3d 971, 982 (9th Cir. 1998)(Due Process Clause).
5
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Rights under the Takings Clause and the Due Process Clause. (ER 24.) Pursuant
to the SEC’s motion to dismiss, on December 6, 2010, the district court dismissed
the FAC, with prejudice. (ER 3.)6
III.
ARGUMENT
A. The Court Should Grant Summary Affirmance
Summary affirmance of the district court’s dismissal is appropriate when “it
is clear from the face of the appellant’s pleadings that . . . the appeal is patently
insubstantial or clearly controlled by precedent . . . .” In re Keith, 508 F.3d 1225,
1227 (9th Cir. 2007); See also United States v. Hooton, 693 F.2d 857, 858 (9th Cir.
1982) (per curiam).
1. The district court properly dismissed Appellants’ Takings
Claim
As the district court noted, Appellants’ Takings Claim fails because such a
claim is not cognizable under the alleged facts. Broad, 85 F.3d at 430. In Broad,
this Court considered the Takings Claim of a number of shareholders who
challenged the creation of a trust that favored one group of shareholders over
6 In light of the district court’s disposition of the Takings Clause and Due
Process Clause claims, the court did not consider SEC Appellees’ argument that
their conduct was protected by qualified immunity. Saucier v. Katz, 533 U.S. 194,
200 (2001). (ER 3.)
6
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another. Id. at 425-426. In rejecting the Takings Claim, this Court noted that,
“almost universally,” Takings Claims involve rights to real property, and plaintiffs
cited no cases suggesting that the Takings Clause applied to their personal
property. Id. at 430. This Court further noted that shareholders did not “directly
own any part of a corporation’s property or assets,” and that shareholders merely
held a “proportionate interest in the corporate equity remaining after a corporation
meets all its other debts and obligations.” Id. Accordingly, this Court concluded
that “the plaintiff shareholders have no proprietary interest that could have been
taken.” Id.
Here, Appellants claim they are entitled to recover their interest in CMKM
stock that was placed in a trust. As in Broad, Appellants do not have a proprietary
interest in the funds that could have been taken under the Takings Clause. Thus,
the district court properly held that Appellants’ Takings Claim fails to state a
claim, and this Court should summarily affirm dismissal of that claim.
2. The district court properly dismissed Appellant’s Due Process
Claim
The district court properly dismissed Appellants’ Due Process Claim as
well. In asserting a procedural Due Process Claim, Appellants must establish:
(1) the deprivation of a constitutionally protected liberty or property interest; and
(2) a denial of adequate procedural protection. Brewster v. Bd. of Educ. of the
7
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Lynwood Unified School Dist., 149 F.3d at 982. Property rights are not created by
the Constitution, but are defined by independent sources such as state law,
statutes, ordinances, regulations or express and implied contracts. Board of
Regents of State Coll. v. Roth, 408 U.S. at 577 (“To have a property interest in a
benefit, a person clearly must have more than an abstract need or desire for it. He
must have more than a unilateral expectation of it. He must, instead, have a
legitimate claim of entitlement to it.”).
Indeed, Appellants concede that they have found no case authority
supporting the notion that a shareholder’s property right is Constitutionally
protected. AOB 32-33. Moreover, as the district court stated, Appellants have
asserted nothing more than a “unilateral expectation” of receiving funds but have
not demonstrated a “legitimate claim of entitlement” to such funds. (ER 3.)
Finally, to the extent Appellants claim that the SEC, in its discretion, wrongfully
denied release of the alleged trust funds, such a claim does not lie. An individual
has no property interest in a particular benefit where a government agency retains
discretion to grant or deny the benefit. See, e.g., Erickson v. United States, 67
F.3d 858, 862 (9th Cir. 1995); Greenwood v. FAA, 28 F.3d 971, 976 (9th Cir.
1994); Swanson v. Babbit, 3 F.3d 1348, 1353-54 (9th Cir. 1993).
8
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Therefore, this Court should summarily affirm the district court’s decision
to dismiss Appellants’ Due Process Claim because they have failed to establish a
legitimate claim of entitlement to, or a property interest in, the funds at issue.
3. The district court lacked subject matter jurisdiction for other
reasons
Appellants asserted claims against the SEC Commissioners in their official
capacities; such claims are barred by sovereign immunity. Hodge v. Dalton, 107
F.3d at 707. Accordingly, there is no jurisdiction over those claims.
B. Request to Stay Briefing
SEC Appellees seek a stay in the briefing schedule until this motion is
decided. Appellants’ brief was filed on December 5, 2011 and SEC Appellees’
answering brief is due January 4, 2012.
Dated: January 3, 2012 Respectfully submitted,
ANDRÉ BIROTTE JR.
United States Attorney
/s/ Keith M. Staub
KEITH M. STAUB
Assistant United States Attorney
Attorneys for Defendants-SEC Appellees
9
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I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the
United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date) .
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Signature (use "s/" format)
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
9th Circuit Case Number(s)
*********************************************************************************
Signature (use "s/" format)
NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
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