Martin et al v. Schapiro et al

Filing 22

OPINION: For the foregoing reasons, Plaintiffs' Amended Complaint is dismissed. (Signed by Judge Robert W. Sweet on 6/22/2011) (jfe)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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ROBERT A. MARTIN and EMPIRE
PROGRAMS, INC.!
aintiffs,

11 Civ. 415

-against

OPINION

UNITED STATES SECURITIES AND EXCHANGE
COMMISSION! ET AL.,
Defendants.

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Sweet, D. J.

Plaintiffs filed their Amended Complaint on April 12,
2011, seeking a writ of mandamus under 28 U.S.C.

§

1361

compelling the United States Securities and Exchange Commission
("SEC") and certain officers of that agency to "enter an Order
approving a plan

distribution of the Remaining Funds within

thirty (30) days! or such other period of time as the Court
deems just and reasonable, together with an award to the
plaintif

of the costs and expenses of this proceeding./f

Compl. at 8.

1

I.

Am.

The SEC, by letters dated May 27 and June 3, 2011,
notified the Court that it had issued the sought-after order: In
the Matters of Bear Wagner Specialists, et al., SEC Release No.
34-65443, 2011 WL 2098098 (May 26, 2011).

Plaintiffs have

expressed objections to the substance of the order, but their
Amended Complaint seeks a writ compelling the non-discretionary
entry

an order, not dictating its contents.

Therefore, the

matter is now moot, and the Amended Complaint is dismissed. 1
Christ v. U.S.

. of Labor, 578 F. Supp. 405, 406

------~"------------~-------------

1984)

See

(S.D.N.Y.

("Because the decision which plaintiffs had sought to

compel by means of this action has now been rendered by the
Department of Labor, plaintif

'request for mandamus relief is

moot and is therefore denied.")

i

Hunter v. Colonial Park, 409

Fed. Appx. 411, 411 12 (2d Cir. 2011)
court's denial

(affirming the district

a petition for mandamus relief on the ground

that the petitioner had obtained the relief he sought and,
therefore, the case was moot.).

Plaintiffs' June 14, 2011 letter contends that the SEC's final order
violates its mandate to distribute the fund "for the benefit of investors"
and fails to satisfy the SEC's non-discretionary duties.
Plaintiffs contend
that the mandamus action is therefore not moot. However, Plaintiffs' letter
ultimately seeks review of the content of the order, not to compel its
issuance. As discussed below, judicial review of the SEC's final order is
the exclusive province of the Circuit Courts.
Furthermore, the Amended
Complaint demands the issuance of the order, not the modification of its
contents, and is properly dismissed as moot despite the arguments in
Plaintiffs' letter.
1

2

In their Amended Complaint, Plaintiffs indicate that
the SEC's order should payout the remaining monies in the
distribution fund to the indentified victims of the New York
Stock Exchange Spec
at

~ 22.

ist firms on a pro rata basis.

Am. Compl.

To the extent that Plaintiffs seek review of the

substance of the SECts order[ that review must be undertaken by
the United States Courts of Appeals.
Exchange Act[ 15 U.S.C.

§

Section 25(a) of the

78y(a) (1) and (3) [ provides the

following:

(1) A person aggrieved by a final order
the Commission entered pursuant to this
chapter may obtain review
the order
in the United States Court of Appeals
for the circuit in which he resides or
has his principal place of business[ or
for the District of Columbia Circuit[
by filing in such court [ within sixty
days after the entry of the order[ a
written pet ion requesting that the
order be modified or set aside in whole
or in part.

***
(3) On the filing of the petition[ the
court has jurisdiction[ which becomes
exclusive on the filing of the record[
to affirm or modify and enforce or to
set aside the order in whole or in
part.

3

See also Altman v. U.S. S.E.C., No. 10 Civ. 9141, 2011 WL
781918, at *3 (S.D.N.Y. Mar. 6, 2011)

("The Exchange Act allows

those aggrieved by SEC orders or rules to bring challenges in a
United States Court of Appeals. 15 U.S.C. § 78y(a) (1),

(b) (1) .

Those courts' jurisdiction is exclusive. 15 U.S.C. § 78y(a) (3),
(b) (3) ."); Williams v. New York Stock

, No. 81 Civ.

6605, 1982 WL 1334, at *2 (S.D.N.Y. Sept. 29, 1982)

("If the

person seeks judicial review, the exclusive remedy is with a
federal Court of Appeals following action by the SEC.")
15 U.S.C. § 78y(a)).

For the foregoing reasons, Plaintiffs' Amended
Complaint is dismissed.

It is so ordered.

New York, NY
June -z,. ~, 2011

ROBERT W. SWEET
U.S.D.J.

4

(citing