Securities and Exchange Commission v Behrens, et al

Filing 352

MEMORANDUM AND ORDER denying 350 Motion for Sanctions and Contempt; denying 351 Motion for Copies. Ordered by Judge John M. Gerrard. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SECURITIES AND EXCHANGE
COMMISSION,
8:08-CV-13
Plaintiff,
vs.

MEMORANDUM AND ORDER

BRYAN S. BEHRENS, et al.,
Defendants.
This matter is before the Court on two filings from pro se defendant
Bryan S. Behrens. The first is a "Motion for Sanctions and Contempt" (filing
350). The second is correspondence (filing 351) that the Court interprets to be
a motion for copies. Both motions will be denied.
Behrens' Motion for Sanctions and Contempt (filing 350) is based on
the same premise as his earlier motion for injunctive relief: that his criminal
prosecution was allegedly in violation of a receivership stay previously
entered by the Court in this civil proceeding, which, according to Behrens,
deprived the Court of jurisdiction over the criminal proceeding. But instead of
seeking injunctive relief, Behrens now seeks to have the United States
Attorney held in contempt of court. See filing 350.
Behrens' motion suffers from a number of defects. To begin with, the
Court questions whether Behrens' motion is timely; he is complaining about
an alleged contempt that took place over 4 years ago. Cf., Smith v. City of
Chicago, 769 F.2d 408, 411-13 (7th Cir. 1985); Nat'l Labor Relations Bd. v.
Am. Potash & Chem. Corp., 113 F.2d 232, 235-36 (9th Cir. 1940). Nor is the
Court persuaded by Behrens' underlying premise; the Court is aware of no
authority holding that actions taken in violation of a court-ordered injunction
are void ab initio.1 And to the extent that Behrens claims that the parties
and the United States Attorney denied him "his 5th & 14th Amendment
Behrens relies on authority relating to bankruptcy stays, which are creatures of statute
and entirely different. Judgments taken in violation of a bankruptcy stay are void because
Congress has said so. See 11 U.S.C. § 524(a)(1); see also, 11 U.S.C. § 326; Kalb v. Feuerstein,
308 U.S. 433, 339-44 (1940); In re Gruntz, 202 F.3d 1074, 1082-83 (9th Cir. 2000). The
Court is aware of no similar proposition with respect to the Court's own injunctions. And
that makes sense, particularly in this instance—it is difficult to see how the Court's power
to issue an injunction could be used to divest itself of jurisdiction.
1

rights" by cooperating on prosecution, see filing 350 at 3, the Court notes that
Behrens' guilty plea forecloses independent claims relating to the deprivation
of constitutional rights that occurred prior to the entry of the guilty plea.
United States v. Woodard, 675 F.3d 1147, 1150 (8th Cir. 2012).
But primarily, the Court finds that it lacks jurisdiction to grant
Behrens the relief he requests. Behrens claims that the remedy for this
alleged contempt "could include the 'voiding' of the indictment" and "order of
immediate release" or "awarding damages." Filing 350 at 5. As the Court has
already explained to Behrens, the exclusive remedy for a federal prisoner
seeking to challenge the legality of his confinement is a motion to vacate, set
aside, or correct the sentence pursuant to 28 U.S.C. § 2255, to be filed in the
criminal case that resulted in the conviction. Filing 320. So the Court cannot,
in this proceeding, void the indictment or order Behrens' release. Nor does
the Court have jurisdiction to award Behrens damages from the United
States Attorney: money damages cannot be imposed on the United States in a
contempt proceeding because they are barred by the doctrine of sovereign
immunity. Coleman v. Espy, 986 F.2d 1184, 1191-92 (8th Cir. 1993); see also
Fed. Deposit Ins. Co. v. Meyer, 510 U.S. 471, 475 (1994). Therefore, Behrens'
Motion for Sanctions and Contempt (filing 350) will be denied.
Behrens' motion for copies (filing 351) will also be denied, for the
reasons stated in the Court's Memorandum and Order of July 11, 2013 (filing
348). And to prevent Behrens from pursuing any (more) unnecessary
litigation, the Court notes that unlike the Court's order on his previous
motion for injunctive relief, a court's refusal to hold a party in civil contempt
of court is not an appealable final order when other parts of the litigation
remain unresolved. In re M & S Grading, 526 F.3d 363, 369 (8th Cir. 2008).
IT IS ORDERED:
1.

Behrens' motion for contempt (filing 350) is denied.

2.

Behrens' motion for copies (filing 351) is denied.

Dated this 17th day of July, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge
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