Daniels v. Securities and Exchange Commission

Filing 4

ORDER denying 3 motion for temporary restraining order. Signed by Judge Steven D. Merryday on 6/30/2017. (AJS)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MICHAEL J. DANIELS,
Plaintiff,
v.

CASE NO. 8:17-cv-1513-T-23AEP

SECURITIES AND EXCHANGE
COMMISSION,
Defendant.
____________________________________/
ORDER
Alleging that a Securities and Exchange Commission administrative
proceeding violates Article II and the Fifth and Seventh Amendments, Michael J.
Daniels sues (Doc. 1) the SEC for declaratory and injunctive relief. Daniels moves
(Doc. 3) for a temporary restraining order to “[enjoin] the Commission from carrying
out an administrative proceeding against the Plaintiff including but not limited to any
subpoena requiring the Plaintiff to testify in Miami, Florida on July 3, 2017.”
(Doc. 3 at 2) Daniels states that “the Commission has deposed all other individuals
that are friends and family of the Plaintiff in Tampa, Florida or by telephonic
means.” (Doc. 1 at 3).
The SEC’s Rules of Practice permit subpoenaing a person and establish the
procedure through which the person can request quashing or modifying the
subpoena. Under Section 201.232(e)(1), the person must request within fifteen days
of service of the subpoena that an SEC administrative law judge quash or modify the

subpoena.* If an administrative law judge denies the requested relief, the person
must appeal to the SEC. If the SEC affirms the administrative law judge’s denial,
15 U.S.C. § 78y(a)(1) permits appealing only to a United States Court of Appeals. In
the Securities Exchange Act, “Congress sought to foreclose district court review of
administrative proceedings.” Hill v. Securities and Exchange Commission, 825 F.3d
1236, 1242 (11th Cir. 2016). Because Daniels fails to allege the exhaustion of an
administrative remedy, because a district court cannot quash or modify an SEC
subpoena issued under the SEC’s Rules of Practice, and because Daniels fails to
comply with Local Rule 4.05,** the motion (Doc. 3) for a temporary restraining order
is DENIED.
ORDERED in Tampa, Florida, on June 30, 2017.

Section 201.233(i)(1) states that “[a]n objection to an error or irregularity in a deposition
notice is waived unless promptly served in writing on the party giving the notice.” Neither Daniels’s
complaint nor his motion for a temporary restraining order allege or argue that Daniels timely
objected to the deposition notice.
*

Local Rule 4.05(b)(2) states that a motion for a temporary restraining order “must be
supported by allegations of specific facts shown in the verified complaint or accompanying affidavits
. . . not only that the moving party is threatened with irreparable injury, but that such injury is so
imminent that notice and a hearing on the application for preliminary injunction is impractical if not
impossible.” Under Local Rule 4.05(b)(4), a motion for a temporary restraining order must address
the likelihood of success on the merits and “the irreparable nature of the threatened injury and the
reason that notice cannot be given.” Daniels fails to allege facts demonstrating that the purported
irreparable injury is “so imminent” that providing the SEC with notice and a hearing is “impractical,
if not impossible.”
**

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