Jacob Keith Cooper v. Ussec

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2019
• Docket: 15-73193
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JACOB KEITH COOPER, No. 15-73193

Petitioner, SEC No. 3-15842

v. MEMORANDUM* U.S. SECURITIES & EXCHANGE COMMISSION,

Respondent.

On Petition for Review of an Order of the Securities & Exchange Commission

Submitted December 11, 2019**

Before: WALLACE, CANBY, and TASHIMA, Circuit Judges.

Jacob Keith Cooper petitions pro se for review of the Securities & Exchange

Commission Administrative Law Judge’s decision permanently barring him from

participation in the securities industry and ordering the payment of a civil penalty

and disgorgement of revenues and consulting fees. We have jurisdiction under 15

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). U.S.C. § 78y. We deny the petition.

The only issue Cooper raises in the opening brief is whether the ALJ was

properly appointed under the Appointments Clause. However, because Cooper did

not timely raise this issue before the Commission, he may not raise the issue on

appeal. See 15 U.S.C. § 78y(c)(1) (“No objection … may be considered by the

court unless it was urged before the Commission or there was reasonable ground

for failure to do so.”); Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018) (“[O]ne who

makes a timely challenge to the constitutional validity of the appointment of an

officer who adjudicates his case is entitled to relief.” (citation and internal

quotation marks omitted)); Inter-Tribal Council of Nevada v. United States Dept.

of Labor, 701 F.2d 770, 771 (9th Cir. 1983) (“All issues which a party contests on

appeal must be raised at the appropriate time under the agency practice.”); see also

Malouf v. SEC, 933 F.3d 1248, 1255-58 (10th Cir. 2019).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on reply.

See Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).

PETITION DENIED.

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