Today (June 12, 2015), Timbervest, LLC filed a complaint in federal court in the Northern District of Georgia seeking a halt to its ongoing SEC administrative proceeding, In the Matter of Timbervest, LLC at al. We have previously discussed the Timbervest SEC proceeding, including recent developments involving Timbervest’s challenge to the constitutionality of the SEC administrative process and requests for discovery into possible systemic bias within the administrative court. See Briefing of ALJ Constitutionality Before SEC Leaves Resolution in Doubt, SEC Broadens Constitutional Inquiry into Its Own Administrative Judges in Timbervest Case, SEC “Invites” ALJ Cameron Elliot To Provide Affidavit on Conversations “Similar” to Those Described by Former ALJ, and SEC ALJ Cameron Elliot Declines To Submit Affidavit “Invited” by the Commission.
With its efforts to pursue the constitutional challenge before the SEC meeting obstacles before the Commission, Timbervest opted to seek federal court intervention, commencing an action for injunctive relief, and moving for a temporary restraining order. Those documents can be found here: Complaint in Timbervest v. SEC; Memorandum in Support of Motion for TRO in Timbervest v. SEC.
Because Timbervest is located in Atlanta, it filed its complaint in the federal district court for the Northern District of Georgia. That is the same court that days ago halted a different SEC administrative proceeding, In the Matter of Charles L. Hill, Jr., in the action Hill v. SEC. In that case, Judge Leigh Martin May found the appointment of ALJ James Grimes violated the appointments clause of Article II of the Constitution. See Court Issues Preliminary Injunction Halting Likely Unconstitutional SEC Proceeding. And another case filed in that same court by yet another SEC respondent, Gray Financial Group v. SEC, was just assigned to Judge May as a related case. See Ga. Judge Who Blocked SEC Admin Suit Gets Similar Case. The new Timbervest complaint, which is case number 1:15-cv-02106-LMM, was also assigned to Judge May.
Judge May. an Obama appointee who is only in her first year of service as a judge, was active in the Democratic party before her appointment. An article discussing her background can be read here: The Atlanta Judge Who Stuck A Thorn In The SEC’s Side.
In the Timbervest SEC proceeding, ALJ Cameron Elliot issued an Initial Decision as to which both the respondents and the SEC staff petitioned for Commission review, which was granted. After briefing of the issues before the Commission, and supplemental briefing addressing constitutional issues, Timbervest sought discovery after the Wall Street Journal revealed possible pressures on SEC administrative judges to favor the SEC staff. See Fairness Concerns About Proliferation of SEC Administrative Prosecutions Documented by Wall Street Journal. Only days ago, the Commission held oral argument on the petitions for review. But after Judge May”s decision in the Hill case, and ALJ Elliot’s refusal to provide information about possible pressures requested by the Commissioners, Timbervest felt it had to seek relief in federal court, saying: “Plaintiffs have appealed the ALJ’s Initial Decision to the Commission, but it has become clear that the Commission should not hear these arguments. First, the Commission itself did not properly appoint the ALJ. Second, the Commission has argued in other cases that its administrative forum is constitutional. Thus, Plaintiffs’ appeal to the Commission is nothing more than an exercise in futility.” Complaint ¶ 8.
The Timbervest complaint reveals an interesting issue about the handling of its case by the SEC’s ALJs. The case was originally assigned to Chief Administrative Law Judge Brenda Murray, but then handed over to ALJ Elliot. (ALJ Murray is the person identified by former ALJ Lillian McEwen as having told Ms. McEwen that she “questioned her loyalty to the SEC” because she did not treat the SEC staff sufficiently favorably.) ALJs Murray and Elliot allegedly made a critical decision preventing Timbervest from using Brady material (material tending to show the respondents were innocent):
Given the age of the case, the primary evidence presented in support of the Division’s alleged violations was the faded and inconsistent memories of two Division witnesses. As to one of those witnesses, Plaintiffs argued that the SEC had in its possession Brady material that the Commission’s staff disagreed with and argued was inadvertently produced. The Brady material consisted of notes of two interviews the Commission’s staff conducted with that witness. The Plaintiffs argued that the notes were exculpatory and, at the very least, were inconsistent statements that were required to be produced. Pursuant to the SEC’s own administrative proceeding rules, it is required to produce Brady material. Even though the SEC conducted an investigation that lasted over three years,speaking to numerous individuals over that time, the Commission’s staff did not produce any documents or information that it identified as Brady to the Plaintiffs. Ultimately, ALJ Elliot, as well as ALJ Murray, ruled in favor of the Commission’s staff that the notes were not Brady, even though the notes were clearly inconsistent and exculpatory.
Complaint ¶ 28.
The Timbervest complaint also revealed that the SEC staff acknowledged that “ALJ Elliot was not hired through a process involving the approval of the individual members of the Commission.” The staff could not state how ALJ Murray was appointed because “Chief ALJ Murray began work at the agency in 1988 and information regarding hiring practices at that time is not readily available.” Complaint ¶ 36. At a minimum, then, if Judge May retains her view that the SEC’s administrative law judges are “inferior officers” of the Executive Branch, a finding that ALJ Elliot was improperly appointed may come soon. The only thing that might prevent such a ruling is if Judge May concludes that because the Timbervest SEC proceeding has already gone through trial and is before the SEC on review of the Initial Decision — a different set of circumstances than she faced in the Hill case — a federal court should not take jurisdiction over the case.
The SEC’s pot is now boiling over in, of all places, Atlanta, Georgia.
June 12, 2105
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