United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S
APPLICATION FOR ORDER ENFORCING COMPLIANCE WITH A COMMISSION
BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE
matter is presently before the Court on the application of
plaintiff Securities and Exchange Commission
(“SEC”) for an order enforcing compliance with
its order imposing sanctions on defendants [docket entry 1].
Defendant Ambassador Capital Management, LLC
(“ACM”) has not responded, and the time for it to
do so has expired. Defendant Oglesby has responded, and the
SEC has filed a reply. Pursuant to E.D. Mich. LR 7.1(f)(2),
the Court shall decide this matter without a hearing.
2014, SEC ALJ Cameron Elliot held an eight-day hearing on an
SEC Order Instituting Administrative and Cease-and-Desist
Proceedings against ACM and Oglesby. In September 2014, ALJ
Elliot issued an 81-page initial decision finding that from
2009 to 2012 both ACM and Oglesby violated various provisions
of the securities laws and assessing civil money penalties
against them in the amount of $695, 000 and $126, 000,
respectively. Pl.'s Appl. Ex. 2. In December 2014, after
neither ACM nor Oglesby sought review of this decision by the
SEC, the SEC issued a notice stating that ALJ Elliot's
decision had become final. Id. Ex. 3. An aggrieved
party may obtain review of a final SEC decision by filing a
petition within sixty days in the United States Court of
Appeals for the circuit in which the aggrieved party resides
or has his (or its) principal place of business, or for the
District of Columbia Circuit, and that court has exclusive
jurisdiction to affirm, modify, or set aside the order.
See 15 U.S.C. § 80a-42(a). Neither ACM nor
Oglesby sought such review. At that point, the SEC's
decision was not only final but also unreviewable.
now seeks enforcement of its final decision. The Court has
authority to grant the requested relief under 15 U.S.C.
§ 78u(e)(1). See S.E.C. v. Mohn, 465 F.3d 647,
651 (6th Cir. 2006) (noting that § 78u(e)
“implicates the entire Exchange Act, and permits the
SEC to apply to the district court for enforcement of orders
issued pursuant to any section in the Exchange Act”).
In an enforcement action of this nature,
[t]he merits of the ALJ's decision cannot be reviewed . .
. . This is so because “[f]inal orders of the
Commission are reviewable only in the United States Courts of
Appeals.” Pinchas, 421 F.Supp.2d at 783
(citations and internal quotation marks omitted); see
also 15 U.S.C. §§ 77i(a), 78y(a) (conferring
exclusive jurisdiction over appeals from SEC final orders
entered pursuant to the Securities Act and Exchange Act on
the United States Courts of Appeals); Altman v.
S.E.C., 768 F.Supp.2d 554, 558 (S.D.N.Y.2011)
(recognizing that Courts of Appeals have exclusive
jurisdiction over the appeals initiated by those aggrieved by
SEC orders) aff'd, Altman v. S.E.C., 687 F.3d 44
(2d Cir.2012) (per curiam).
S.E.C. v. Gerasimowicz, 9 F.Supp.3d 378, 381
Oglesby's request that the Court review the merits, the
Court has no authority to do so. As noted by the Ninth
Circuit, “[b]y the time a § 21(e) [enforcement]
application is filed by the Commission, the time and
opportunity for adjudicating the merits of the claim have
been exhausted; all that is left to do is enforce the
order.” S.E.C. v. McCarthy, 322 F.3d 650 (9th
Cir. 2003). As noted above, Oglesby neglected to seek review
of the ALJ's initial decision with the SEC, which caused
the decision to become final. He then neglected to seek
review of the final decision in the court of appeals, which
caused the decision to become unreviewable. Therefore, the
fairness or correctness of the SEC's decision are issues
Oglesby may not raise now.
Court will, however, comment on two of Oglesby's
arguments which do not relate directly to the merits of the
case. The first is that the case should be remanded under
Lucia v. S.E.C., 138 S.Ct. 2044 (2018), because ALJ
Elliot was not properly appointed. While it is true that the
Supreme Court held in that case that ALJ Elliot was not
properly appointed (because he was appointed by staff and not
by the SEC itself) and that it remanded that case “for
a new hearing before a properly appointed official, ”
it did so because the petitioner had made a “timely
challenge” to the ALJ's appointment both before the
SEC and in the court of appeals. Id. at 2055.
Oglesby does not contend that he ever raised this issue
before now, and now it is too late.
second argument is that the instant action is barred by the
five-year limitations period set forth in 28 U.S.C. §
2462. Oglesby has waived this argument by not
challenging the SEC's final decision in the court of
appeals. Moreover, he errs in arguing that the SEC initiated
the instant action after the five-year limitations period had
run. The limitations period begins to run “once the
underlying administrative action establishing liability
becomes final.” Mohn, 465 F.3d at 654. The
SEC's order in this matter became final on December 11,
2014, and it commenced the instant action less than five
years later, on October 11, 2018. Oglesby's statute of
limitations argument has no merit.
these reasons, the Court concludes that the SEC is entitled
to enforcement of its final order. Accordingly, IT IS ORDERED
that the SEC's application for an order enforcing
compliance with its final order is granted. The SEC must
submit a proposed order within seven days of the date of this
 Section 78u(e)(1) states:
Upon application of the Commission the district courts
of the United States and the United States courts of any
territory or other place subject to the jurisdiction of the
United States shall have jurisdiction to issue writs of
mandamus, injunctions, and orders commanding (1) any person
to comply with the provisions ...