Case Information
‐ ag Cerny v. SEC
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER
R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION SUMMARY ORDER ʺ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
At stated term United States Court Appeals Second Circuit, held at Thurgood Marshall United States Courthouse, Foley Square, City New York, th day September, two thousand seventeen. PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
Circuit Judges. [*]
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CHARLES M. CERNY, CLIFF BUXBAUM, , ag
v.
U.S. SECURITIES AND EXCHANGE COMMISSION,
Respondent .
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York, Cliff Buxbaum, pro se Thousand Oaks, California.
RESPONDENT: STEPHEN G. YODER, Senior Litigation Counsel, Anne K. Small, General Counsel, Sanket J. Bulsara, Deputy General Counsel, Michael A. Conley, Solicitor, Catherine A. Broderick, Securities and Exchange Commission, Washington, D.C. Appeal a final order Securities and Exchange Commission.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that petition for review DENIED
. Charles M. Cerny and Cliff Buxbaum, proceeding pro se seek
review a March 14, final order Securities and Exchange (the ʺ ) denying as untimely claims for whistleblower awards. assume parties ʹ familiarity underlying facts, procedural history, and issues on appeal.
After discovering on website advising case resolution, development made them potentially eligible awards on securities fraud judgments obtained Commission, petitioners filed claims seeking such awards. The listed deadline file claim as June 3, 2012, and petitioners submitted separate claims 2014. The denied claims, concluding were untimely and petitioners not demonstrated extraordinary circumstances warranting relief from the time bar. timely petitioned review. review ʹ s whistleblower award determinations ʺ in accordance with section 706 of Title 5. ʺ 15 U.S.C. § 78u 6(f). will set aside an agency only if it is ʺ arbitrary, capricious, an of discretion, or otherwise in accordance law, ʺ or if it is ʺ unsupported substantial evidence. ʺ U.S.C. § 706(2)(A), (E). A who wishes to apply an award must submit an application within ninety days publication of ʺ Notice of Covered Action ʺ website, ʺ or will barred. ʺ C.F.R. § 240.21F ‐ 10(a). Nevertheless, ʺ may, in its sole discretion, waive any the[] procedures [described § 240.21F 10] upon showing extraordinary circumstances. ʺ Id. § 240.21F 8(a). acknowledge they failed to meet deadline, but argue quality information provided alleged properly catalogue submissions constituted
extraordinary circumstances warranting relief filing deadline. An agency interpretation regulations, ʺ regardless formality procedures used formulate it, ʹ controlling unless plainly erroneous inconsistent regulation[s]. ʹʺ Encarnacion ex rel. George v. Astrue F.3d (2d Cir. (alteration original) (quoting Auer v. Robbins U.S. (1997)). The has consistently interpreted extraordinary circumstances ʺ require *4 claimant demonstrate ʺ that reason for the to timely file was beyond the claimant ʹ s control. ʺ Special App ʹ x at 3; see also Claim for Awards in Connection with Redacted & Redacted , Exchange Act Release No. 72,659, 2014 WL 3613224, at *3 (July 23, 2014); Claim Awards in Connection Redacted Notice Covered Action Redacted , Exchange Act Release No. 72,178, 2014 WL 1998521, at *2 (May 16, 2014); cf. Application PennMont Secs. , Exchange Act Release No. 61,967, WL at *4 (Apr. 23, (comparing extraordinary circumstances ʺ another Commission rule to doctrine equitable tolling), pet. denied F. App ʹ x (3d Cir. 2011). fail demonstrate how Commission interpretation is plainly erroneous inconsistent regulations. conclude that interpretation is controlling, see Encarnacion F.3d at and, therefore, did not discretion determining not established extraordinary circumstances warranting relief from filing deadline. argue untimeliness their applications should
have been excused because never received actual potential eligibility award. Under relevant regulation, however, required provide actual potential claimants. It provides simply: ʺ Whenever results monetary sanctions totaling more than $1,000,000, Office Whistleblower will cause published Web site ʹ Notice Covered Action. ʹʺ C.F.R. *5 § 240.21F 10(a); see Securities Whistleblower Incentives and Protections Fed. Reg. 34,300, 34,342 (June (rejecting commenters ʹ request Office Whistleblower required contact whistleblowers directly inform them [of] covered ). Accordingly, did discretion declining excuse untimeliness petitioners ʹ claims receive actual Commission. To extent petitioners challenge rule itself as arbitrary capricious, adopting such rule within scope discretion, U.S.C. § 78u 6(j), and therefore lies beyond scope our current review. have considered remaining arguments conclude
are without merit. DENY petition review. THE COURT:
Catherine O Hagan Wolfe, Clerk
[*] Because Judge Ralph K. Winter, originally assigned this panel, recused himself this case, remaining two judges issue this order accordance Second Circuit Internal Operating Procedure E(b).
[1] motion compel Securities and Exchange complete administrative record, and motions non parties Denise Warren and Ahmed Amr leave file pro se amicus briefs support are denied.
[2] Buxbaum filed his March claim on behalf himself three other individuals, including Cerny. Cerny, who signed Buxbaum claim, subsequently submitted his own July 2014.