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SEC v. BILZERIAN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


November 1, 1990

SECURITIES AND EXCHANGE COMMISSION, Plaintiff,
v.
PAUL A. BILZERIAN, et al., Defendants

Stanley S. Harris, United States District Judge.

The opinion of the court was delivered by: HARRIS

MEMORANDUM ORDER

STANLEY S. HARRIS, UNITED STATES DISTRICT JUDGE

 This action is now before the Court on defendants' motion to dismiss for lack of subject matter jurisdiction. For the reasons set forth below, defendants' motion is denied.

 Background

 On June 9, 1989, a jury in the United States District Court for the Southern District of New York found defendant Paul A. Bilzerian guilty on nine counts which charged violations of the federal securities laws. *fn1" Three weeks after the criminal verdicts, plaintiff Securities and Exchange Commission (SEC) brought this action against Bilzerian, and others, *fn2" for alleged violations of the federal securities laws in connection with the securities of seven different companies. *fn3" The SEC in this civil action seeks a permanent injunction prohibiting Bilzerian from committing further violations of the securities laws, and the disgorgement and return to injured shareholders of approximately $ 31 million.

 Discussion

 Defendants move to dismiss the SEC's complaint for lack of subject matter jurisdiction. Defendants note that Article II of the Constitution commands the President to take care that the laws be faithfully executed and vests the President with "executive Power." Under § 21(d) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78u(d) (1981), Congress vested the SEC, rather than the President, with civil enforcement authority for alleged violations of the federal securities laws. Defendants argue that this delegation of enforcement power to an independent agency, such as the SEC, is unconstitutional, as it allegedly violates the separation of powers doctrine.

 The creation, composition, and powers of the SEC are found in the Securities Exchange Act of 1934. Under the Act, the Commission consists of five members who are appointed by the President and confirmed by the Senate. The commissioners' five-year terms are staggered, and no more than three of the members may belong to the same political party. While the Act does not expressly give the President the power to remove a commissioner, it is generally accepted that the President may remove a commissioner for inefficiency, neglect of duty, or malfeasance in office. *fn4" See S.E.C. v. Blinder, Robinson & Co., 855 F.2d 677, 681 (10th Cir. 1988), cert. denied, 489 U.S. 1033, 109 S. Ct. 1172, 103 L. Ed. 2d 230 (1989).

 The Supreme Court has recognized that the powers assigned to the three branches are not "hermetically" sealed from each other. I.N.S. v. Chadha, 462 U.S. 919, 951, 77 L. Ed. 2d 317, 103 S. Ct. 2764, 2784 (1982). At the same time, however, the Court will invalidate statutes in which Congress retains the power of removal of an officer charged with the execution of the laws, except by impeachment and conviction. Bowsher v. Synar, 478 U.S. 714, 726, 92 L. Ed. 2d 583, 106 S. Ct. 3181, 3188 (1986). "To permit the execution of the laws to be vested in an officer answerable only to Congress would, in practical terms, reserve in Congress control over the execution of the laws." Id.

 In Bowsher, the Court held that Congress unconstitutionally delegated the authority to initiate spending reductions to the Comptroller General. Bowsher, 478 U.S. at 726-27, 106 S. Ct. at 3187-88, 92 L. Ed. 2d 583. *fn5" The Court concluded that by placing responsibility for execution of the Balanced Budget and Emergency Deficit Control Act in the hands of an officer who is subject to removal only by Congress, Congress in effect retained control over the execution of the Act and intruded into the executive function. Id. 478 U.S. at 734, 106 S. Ct. at 3191-92.

 Similarly, in Buckley v. Valeo, 424 U.S. 1, 46 L. Ed. 2d 659, 96 S. Ct. 612 (1976), the Court held that the civil enforcement authority of the Federal Election Commission (FEC) was unconstitutional as several members of the FEC were appointed by Congress, rather than by the President. It is important to note, however, that the Court did not render the delegation of enforcement authority to the Commission as unconstitutional per se. See S.E.C. v. Warner, 652 F. Supp. 647, 649 (S.D. Fla. 1987).

 Unlike the situation in Bowsher and Buckley, Congress has neither the power to appoint or remove, except for impeachable offenses, the commissioners of the SEC. Warner, 652 F. Supp. at 649. Furthermore, Congress may, without violating Article II, authorize an independent agency to bring civil law enforcement actions even though the President's removal power is restricted. *fn6" Blinder, 855 F.2d at 682 (citing Morrison v. Olson, 487 U.S. 654, 108 S. Ct. 2597, 101 L. Ed. 2d 569 (1988) and Humphrey's Executor, 295 U.S. 602, 79 L. Ed. 1611, 55 S. Ct. 869 (1935)). Morrison instructs that the real question to be answered is whether the removal restrictions impede the President's ability to perform his constitutional duty. 108 S. Ct. at 2597.

 With respect to the SEC, the President has the power to appoint the SEC commissioners, to choose the Commission's chairman who has broad powers concerning the operation and administration of the Commission, and to remove a commissioner for inefficiency, neglect of duty, or malfeasance in office. See Blinder, 855 F.2d at 682. These powers give the President sufficient control over the SEC to ensure that the securities laws are faithfully executed. Id. Moreover, the removal restrictions do not impede the President's ability to perform his constitutional duties. Id.

 In conclusion, it is clear that the SEC is within the Executive Branch, as Congress has no power or control over the enforcement activities of the SEC. *fn7" S.E.C. v. Davis, 689 F. Supp. 767, 771 (S.D. Ohio 1988). Since the SEC's exercise of civil enforcement responsibilities does not constitute an unconstitutional delegation of enforcement authority, the Commission is authorized to bring this action, and defendants' motion to dismiss for lack of subject matter jurisdiction is denied.

 SO ORDERED.


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