16‐934‐ag Cerny v. SEC UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 7th day of September, two thousand seventeen.

PRESENT: DENNY CHIN, SUSAN L. CARNEY, Circuit Judges.* ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

CHARLES M. CERNY, CLIFF BUXBAUM, Petitioners, 16‐934‐ag v.

U.S. SECURITIES AND EXCHANGE COMMISSION, Respondent.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PETITIONERS: CHARLES M. CERNY, pro se, Brooklyn, New York, and Cliff Buxbaum, pro se, Thousand Oaks, California.

* Because Judge Ralph K. Winter, originally assigned to this panel, recused himself from this case, the remaining two judges issue this order in accordance with Second Circuit Internal Operating Procedure E(b). FOR 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 from a final order of the Securities and Exchange Commission.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the petition for review is DENIED.1

Petitioners Charles M. Cerny and Cliff Buxbaum, proceeding pro se, seek

review of a March 14, 2016 final order of the Securities and Exchange Commission (the

ʺCommissionʺ) denying as untimely their claims for whistleblower awards. We assume

the partiesʹ familiarity with the underlying facts, procedural history, and issues on

appeal.

After discovering a notice on the Commissionʹs website advising of the

caseʹs resolution, a development that made them potentially eligible for whistleblower

awards based on securities fraud judgments obtained by the Commission, petitioners

filed claims with the Commission seeking such awards. The notice listed the deadline

to file a claim as June 3, 2012, and petitioners submitted separate claims in 2014.2 The

Commission denied the claims, concluding that they were untimely and that petitioners

1 Petitionersʹ motion to compel the Securities and Exchange Commission to complete the administrative record, and the motions of non‐parties Denise Warren and Ahmed Amr for leave to file pro se amicus briefs in support of petitioners are also denied. 2 Buxbaum filed his March 30, 2014 claim on behalf of himself and three other individuals, including Cerny. Cerny, who had not signed Buxbaumʹs claim, subsequently submitted his own claim on July 14, 2014. 2 had not demonstrated extraordinary circumstances warranting relief from the time bar.

Petitioners timely petitioned for review.

We review the Commissionʹs whistleblower award determinations ʺin

accordance with section 706 of Title 5.ʺ 15 U.S.C. § 78u‐6(f). Accordingly, we will set

aside an agency action only if it is ʺarbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law,ʺ or if it is ʺunsupported by substantial evidence.ʺ

(2)(A), (E). A whistleblower who wishes to apply for an award must

submit an application within ninety days of the publication of a ʺNotice of Covered

Actionʺ on the Commissionʹs website, ʺor the claim will be barred.ʺ

.21F‐

10(a). Nevertheless, ʺthe Commission may, in its sole discretion, waive any of the[]

procedures [described in § 240.21F‐10] based upon a showing of extraordinary

circumstances.ʺ Id. § 240.21F‐8(a).

Petitioners acknowledge that they failed to meet the deadline, but argue

that the quality of the information they provided to the Commission and the

Commissionʹs alleged failure to properly catalogue petitionersʹ submissions constituted

extraordinary circumstances warranting relief from the filing deadline. An agencyʹs

interpretation of its regulations, ʺregardless of the formality of the procedures used to

formulate it, is ʹcontrolling unless plainly erroneous or inconsistent with the

regulation[s].ʹʺ Encarnacion ex rel. George v. Astrue,

(2d Cir. 2009)

(alteration in original) (quoting Auer v. Robbins,

(1997)). The

Commission has consistently interpreted ʺextraordinary circumstancesʺ to require that a

3 claimant demonstrate ʺthat the reason for the failure to timely file was beyond the

claimantʹs control.ʺ Special Appʹx at 3; see also Claim for Awards in Connection with

Redacted & Redacted, Exchange Act Release No. 72,659,

, at *3 (July 23,

2014); Claim for Awards in Connection with Redacted Notice of Covered Action Redacted,

Exchange Act Release No. 72,178,

, at *2 (May 16, 2014); cf. Application

of PennMont Secs., Exchange Act Release No. 61,967,

, at *4‐5 (Apr. 23,

2010) (comparing ʺextraordinary circumstancesʺ in another Commission rule to the

doctrine of equitable tolling), pet. denied, 414 F. Appʹx 465 (3d Cir. 2011). Petitioners fail

to demonstrate how the Commissionʹs interpretation is plainly erroneous or

inconsistent with the regulations. Accordingly, we conclude that the Commissionʹs

interpretation is controlling, see Encarnacion,

, and, therefore, that the

Commission did not abuse its discretion by determining that petitioners had not

established extraordinary circumstances warranting relief from the claim filing

deadline.

Petitioners also argue that the untimeliness of their applications should

have been excused because they never received actual notice from the Commission of

their potential eligibility for a whistleblower award. Under the relevant regulation,

however, the Commission is not required to provide actual notice to potential

claimants. It provides simply: ʺWhenever a Commission action results in monetary

sanctions totaling more than $1,000,000, the Office of the Whistleblower will cause to be

published on the Commissionʹs Web site a ʹNotice of Covered Action.ʹʺ 17 C.F.R.

4 § 240.21F‐10(a); see also Securities Whistleblower Incentives and Protections,

, 34,342‐43 (June 13, 2011) (rejecting commentersʹ request that the Office of the

Whistleblower be ʺrequired to contact whistleblowers directly to inform them [of] a

covered actionʺ). Accordingly, the Commission did not abuse its discretion by

declining to excuse the untimeliness of petitionersʹ claims based on their failure to

receive actual notice from the Commission. To the extent petitioners challenge the

notice rule itself as arbitrary or capricious, adopting such a rule is within the scope of

the Commissionʹs discretion, 15 U.S.C. § 78u‐6(j), and therefore lies beyond the scope of

our current review.

We have considered petitionersʹ remaining arguments and conclude they

are without merit. Accordingly, we DENY the petition for review.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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