S.E.C. v. AMX, Intern., Inc. ( 1993 )


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  •              SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellant,
    v.
    AMX, INTERNATIONAL, INC., et al., Defendants,
    William B. Clark, Defendant-Appellee.
    No. 92-1376.
    United States Court of Appeals,
    Fifth Circuit.
    Nov. 12, 1993.
    Appeal from the United States District Court for the Northern District of Texas.
    Before REYNALDO G. GARZA, KING and DeMOSS, Circuit Judges.
    PER CURIAM:
    The instant case involves the enforcement of a disgorgement order entered by the district
    court on August 1, 1990. The Securities and Exchange Commission ("SEC") appeals an order from
    the district court denying certain requested relief the SEC claimed was necessary to obtain compliance
    with the disgorgement order. The SEC filed a Mo tion to Dispense With Oral Argument and
    Summarily Reverse the District Court's Decision, asserting that our recent holding in Sec. Exch.
    Comm'n v. Huffman, 
    996 F.2d 800
    (5th Cir.1993), is dispositive of the issue presented. We agree,
    and we reverse and remand the cause for further proceedings.
    I.
    Appellee, William B. Clark ("Clark"), was prosecuted by the SEC for alleged violations of the
    antifraud and other provisions of the federal securities laws. After negotiations, during which Clark
    was represented by independent counsel, Clark and the SEC on October 26, 1989, entered into a
    "Consent and Undertaking of William B. Clark" (the "consent agreement") in which Clark consented
    to the entry of an agreed judgment, including (i) a permanent injunction against future violations of
    the securities laws alleged to have been violated, and (ii) a disgorgement order. This agreement was
    filed with the district court on February 2, 1990, and a final judgment of permanent injunction and
    other equitable relief was entered against Clark on February 5, 1990.1
    Although Clark agreed to the entry of a disgorgement order, he did not stipulate to a certain
    amount. Rather, the SEC and Clark agreed to negotiate further a disgorgement sum with the
    understanding that they could submit the controversy to the court if no such agreement could be
    reached.2 When the parties failed to agree, the SEC motioned the district court to set a disgorgement
    amount, submitting documentation purportedly relating to Clark's unlawful profits in support of its
    request. On August 1, 1990, the district court entered an Order Setting Disgorgement Amount (the
    "Disgorgement Order"), requiring Clark t o pay $218,610, plus post-judgment interest, into the
    registry of the court within ten days of entry of the order.
    Clark allegedly failed to comply with the Disgorgement Order, and the SEC filed a motion
    to show cause why he should not be held in civil contempt. As neither Clark nor his attorney
    attended the October 31, 1990, show cause hearing, the district court placed Clark in civil contempt.
    The SEC then requested the court below to impose contempt sanctions upon Clark to coerce
    compliance with the Disgorgement Order, suggesting that Clark should be required to pay $125,000
    of the amount due within a ninety-day period. If he failed to do so, the SEC asked that he be
    incarcerated until the payment was made. Clark responded that he was indigent and did not have the
    financial means to comply with the Disgorgement Order. As evidence of his financial inability, Clark
    provided the SEC and the district court with a financial statement and personal tax returns for the
    past three years. Bo th Clark and his wife submitted to depositions taken by the SEC. Clark also
    furnished sworn affidavits of "Indigency" and of "Financial Condition," dated January 31, 1991, and
    December 20, 1991, respectively, as further support for his claim of indigence.
    The district court reviewed the various documents provided by Clark and found that "the only
    meaningful asset belonging to Clark that suggests an ability to comply with the disgorgement [order]
    1
    Clark contends on appeal that the consent agreement filed with the district court was altered,
    since it did not include certain handwritten changes. However, we note that the document filed
    with the court below contained the changes in typewritten form.
    2
    The consent agreement also provided that the SEC could "waive[ ] ... payment of any or all of
    such disgorgement amount ... based upon CLARK's demonstrated financial inability to make
    payment."
    is his home, valued at $250,000, which he owns jointly free and clear with his wife." The court
    determined that this asset was exempt from collection under the Federal Debt Collection Procedures
    Act of 1990, 28 U.S.C. § 3001 et seq. (the "Debt Collection Act"). It reasoned that Section
    3014(a)(2)(A) of the Debt Collection Act permitted a defendant in an equitable proceeding—such
    as the one at bar—to "elect to take his available exemptions under Texas state law." See 28 U.S.C.
    § 3014(a)(2)(A). Since Texas law provides an exemption from debt collection with respect to a
    defendant's homestead,3 and because Clark had no other demonstrable assets, the court concluded
    that Clark had satisfied his burden of showing financial inability to comply with the Disgorgement
    Order. In so holding, the court below intimated that it was unable to consider the value of the home
    in determining whether Clark had met his burden of showing financial inability.
    II.
    We note, as a preliminary matter, that financial inability is a defense for failure to comply with
    a court-ordered disgorgement. Donovan v. Sovereign Sec., Ltd., 
    726 F.2d 55
    , 59 (2d Cir.1984).
    Since Clark invoked the defense of indigency, he had the burden of establishing his inability to pay.
    
    Huffman, 996 F.2d at 803
    . As discussed above, Clark and his wife provided numerous documents
    and deposition testimony in support of his position. The district court concluded that the assets other
    than Clark's home were insubstantial and that he had met his burden of demonstrating a lack of
    pecuniary means to comply with the disgorgement order. The integrity of that evidence and the trial
    court's conclusion about the non-homestead assets is not at issue on this appeal. Rather, the SEC
    challenges the district court's failure to consider Clark's residence as an asset in making its
    determinations as to whether Clark demonstrated financial inability.
    A. Standard of Review
    Normally, we review a district court's decision whether to grant equitable relief with respect
    to a disgorgement order for an abuse of discretion. E.g., Commodities Futures Trading Comm'n v.
    American Metals Exch. Corp., 
    991 F.2d 71
    , 76 (3d Cir.1993). However, we read the district court's
    order to decline to exercise any discretion, believing that it had no authority to consider the home.
    3
    See TEX.PROP.CODE ANN. § 41.002 (Vernon Supp.1993).
    Its ruling in this regard is therefore purely a question of law, which we review de novo, applying the
    same standards as did the district court. E.g., King Fisher Marine Serv., Inc. v. 21st Phoenix Corp.,
    
    893 F.2d 1155
    , 1158 (10th Cir.) (holding that district court's determination as to whether subject
    matter jurisdiction exists is question of law, thus subject to plenary review, while decision whether
    to exercise that jurisdiction—if existent—is considered under abuse of discretion standard), cert.
    denied, 
    496 U.S. 912
    , 
    110 S. Ct. 2603
    , 
    110 L. Ed. 2d 283
    (1990); cf. A.C. Aukerman Co. v. R.L.
    Chaides Constr. Co., 
    960 F.2d 1020
    , 1039 (Fed.Cir.1992) (The "appellate court ... may set aside a
    discretionary decision if the decision rests on an erroneous interpretation of the law....").
    B. Treatment of The Disgorgement Order
    The only issue raised in this appeal by the SEC is whether a standing disgorgement order
    constitutes a "debt," thus subject to the provisions of the Debt Collection Act.4 The district court
    implicitly held that it was when it concluded that the proceeding was subject to the Debt Collection
    Act. In an almost identical fact-setting, this court held that a disgorgement order does not amount
    to a "debt" for purposes of the Debt Collection Act. See 
    Huffman, 996 F.2d at 803
    . Thus, we are
    bound by the prior panel's holding. We write this opinion separately, however, to address a question
    left unanswered by Huffman.
    As this court notes in Huffman, the Debt Collection Act specifically excludes its application
    to the collection of any monies owed which are not debts. 28 U.S.C. § 3001(c). "Debt" is defined
    as:
    (A) an amount that is owing to the United States on account of a direct loan, or loan insured
    or guaranteed by the United States; or
    4
    The appellee, Clark, attempts to enlarge the scope of the appeal by arguing that there is no
    evidence or insufficient evidence of any wrongdoing on his part to warrant the entry of the
    disgorgement order. Notwithstanding the fact that he did not file a cross-appeal to assert this
    point of error—see, e.g., Ayers v. United States, 
    750 F.2d 449
    , 457 (5th Cir.1985) (appellee must
    cross-appeal to preserve its challenge to error in lower court's opinion); Robicheaux v. Radcliff
    Material, Inc., 
    697 F.2d 662
    , 668 (5th Cir.1983) (same)—Clark never challenged the order when
    it was entered. In fact, the order was entered as a consent decree as a result of a settlement
    between the parties and was signed by Clark's trial counsel on his behalf. Moreover, Clark's trial
    counsel filed several papers with the court after entry of the consent decree, asserting only his
    inability to pay—not raising any direct attack upon the disgorgement order as Clark argues here.
    For these reasons, the additional issues Clark attempts to advance are not properly before this
    Court.
    (B) an amount that is owing to the United States on account of a fee, duty, lease, rent,
    service, sale of real or personal property, overpayment, fine, assessment, penalty, restitution,
    damages, interest, tax, bail bond forfeiture, reimbursement, recovery of a cost incurred by the
    United States, or other source of indebtedness to the United States, but that is not owing
    under the terms of a contract originally entered into by only persons other than the United
    States; and includes any amount owing to the United States for the benefit of an Indian tribe
    or individual Indian, but excludes any amount to which the United States is entitled under
    Section 3011(a).[5]
    28 U.S.C. § 3002(3)(A) and (B). Clark has not contended that Section 3002(3)(A) is relevant to this
    case, and there would be no basis for concluding that the provision has any application here.
    Accordingly, the proper focus is upon whether a disgorgement order falls within one of the terms
    defined in Section 3002(3)(B).
    As the Huffman court previously decided, "disgorgement" does not really approximate any
    of the language used in Section 3002(3)(B). It comes closest to "restitution," but it is important to
    note that there are several significant differences for our purposes. In Pierce v. Vision Invs., Inc., this
    court held that court-ordered "disgorgement" payments were in essence "an injunction in the public
    interest" rather than "a mere money judgment or debt." 
    779 F.2d 302
    , 307 (5th Cir.1986). 6
    "Restitution" on the other hand, has the goal of making the aggrieved party whole. First Penn Corp.
    v. Fed. Dep. Ins. Corp., 
    793 F.2d 270
    , 272 (10th Cir.1986) (The object of restitution is "to return
    the parties to the position that existed before the transaction occurred."). "The purpose of
    disgorgement is not to compensate the victims of the fraud, but to deprive the wrongdoer of his
    ill-gotten gain." Sec. Exch. Comm'n v. Blatt, 
    583 F.2d 1325
    , 1335 (5th Cir.1978). See also Sec.
    Exch. Comm'n v. Commonwealth Chem. Sec., Inc., 
    574 F.2d 90
    , 102 (2d Cir.1978). Since
    disgorgement is not similar to those obligations specifically defined as "debts" under the Debt
    Collection Act, it is appropriate to conclude that a court order compelling disgorgement does not
    5
    Section 3011(a) relates to surcharges for collection expenses incurred by the United States.
    28 U.S.C. § 3011(a).
    6
    Pierce involved the issue of whether a contempt sanction enforcing disgorgement of unlawful
    gains under the Interstate Land Sales Full Disclosure Act, 15 U.S.C. §§ 1701-1720, violated
    federal and state prohibitions on imprisonment for debt. Pierce v. Vision Invs., Inc., 
    779 F.2d 302
    , 307 (5th Cir.1986). This Circuit concluded that disgorgement was not a "debt" because it is
    not a remedy at law; rather disgorgement is equitable in nature, constituting "an injunction in the
    public interest." 
    Id. Thus, enforcement
    of the disgorgement order through contempt sanctions
    was permissible.
    constitute a debt. 
    Huffman, 996 F.2d at 803
    .
    Although the facts presented here are virtually identical to those presented in Huffman, this
    court implied in Huffman that the result might have been different if the case had been decided on
    contract principles, noting that the "defendants made no admission of securities violations" and that
    "both sides assume that the amount ordered to be repaid here are a form of "disgorgement' rather than
    the simple settlement of a lawsuit." See 
    Huffman, 996 F.2d at 801
    n. 1. However, the court
    concluded that the parties failed to raise this issue. Since the argument was not properly before the
    court, it expressed no opinion about the merits. 
    Id. C. Effect
    of the Consent Agreement on the Disgorgement Order
    In the instant case, however, t he "contract principles" argument was arguably preserved.
    Since Clark is pro se, we must construe his allegations and briefs more permissively. McCabe v.
    Arave, 
    827 F.2d 634
    , 640 n. 6 (9th Cir.1987) (Courts are permitted to make allowances for pro se
    litigants and to read their papers carefully); Ortiz v. Cornetta, 
    867 F.2d 146
    , 148 (2d Cir.1989) (pro
    se litigant subject to less stringent standards than one represented by counsel). Cf. Hughes v. Rowe,
    
    449 U.S. 5
    , 9, 
    101 S. Ct. 173
    , 175, 
    66 L. Ed. 2d 163
    (1980) (allegations in pro se complaint are to be
    construed liberally). Consequently, we address in this case the question left open in Huffman, namely,
    whether a disgorgement order entered as a result of a settlement between the parties, in which no
    liability is admitted or determined, operates as a "debt" for purposes of the Debt Collection Act.
    We first examine the nature of a consent judgment. It is true that the underlying agreement
    between the SEC and Clark is in the nature of a settlement and has the elements of a contract. See
    Local 93, Int'l Firefighters v. City of Cleveland, 
    478 U.S. 501
    , 519, 
    106 S. Ct. 3063
    , 3073, 
    92 L. Ed. 2d 405
    (1986). When an agreement between litigants is entered as a judgment of the court,
    however, it takes on an added significance. Kaspar Wire Works, Inc. v. Leco Eng'g and Mach., Inc.,
    
    575 F.2d 530
    , 538-39 (5th Cir.1978). Thus, consent decrees "have attributes both of contracts and
    of judicial decrees." United States v. ITT Continental Baking Co., 
    420 U.S. 223
    , 236-37 n. 10, 
    95 S. Ct. 926
    , 934 n. 10, 
    43 L. Ed. 2d 148
    (1975). As Professor Moore aptly described:
    The [consent] judgment is not, like the settlement agreement out of which it arose, a mere
    contract inter partes. The court is not properly a recorder of contracts; it is an organ of
    government constituted to make judicial decisions, and when it has rendered a consent
    judgment it has made an adjudication.
    1B JAMES W. MOORE, MOORE'S FEDERAL PRACTICE, ¶ 0.409[5], at III-151 (2d ed. 1993). Accord
    Kaspar Wire Works, 
    Inc., 575 F.2d at 538
    .
    Although a consent decree is sometimes "construed for enforcement purposes as a contract,"
    ITT 
    Continental, 420 U.S. at 238
    , 95 S.Ct. at 935, where the consent judgment involves an injunction
    or similar equitable relief, "the injunction ... will be enforced as any injunction is enforced." 1B
    MOORE'S FEDERAL PRACTICE, ¶ 0.409[5], at III-149. This court, in Pierce, held that a consent order
    directing, inter alia, the payment of money as a means of enforcing the federal Interstate Land Sales
    Full Disclosure Act, 15 U.S.C. §§ 1701-1720 (the "Interstate Land Act"), is an equitable decree and
    an injunction in the public 
    interest. 779 F.2d at 307
    . Thus, we concluded that the consent order was
    properly enforceable by the court's contempt powers, including incarceration until the court-ordered
    payments were made. Id.;7 cf. Usery v. Fisher, 
    565 F.2d 137
    , 139 (10th Cir.1977) (holding that a
    consent judgment requiring payment of unpaid wages in a suit under the Fair Labor Standards Act
    was not a "debt" and was thus enforceable through criminal contempt). This court has not seen fit
    to distinguish between disgorgement orders which are entered as the result of a consent decree and
    those resulting from a full adversary proceeding. Nor do we in the case at bar.8
    It should also be noted in the instant case that the district court determined the amount of
    disgorgement based upon proof presented by the SEC. Although Clark agreed to disgorge certain
    gains alleged to have been procured as the result of fraudulent conduct, he did not stipulate as to the
    7
    Specifically, we held that the enforcement of the order through the court's contempt powers
    was not in violation of prohibitions against placing debtors in prison. See supra note 6. Although
    Pierce involved construction of the Interstate Land Act, this court noted that the consent
    agreement calling for the disgorgement of ill-gotten profits under that Act was similar to the
    disgorgement remedy available to enforce federal securities laws. 
    Pierce, 779 F.2d at 308
    .
    8
    This reasoning is consistent with the enforcement purposes of the equitable remedy of
    disgorgement. As noted above, disgorgement is designed as a remedial measure for violations of
    the securities laws. Its purpose is to "depriv[e] the wrongdoer of his ill-gotten gains and deter[ ]
    violations of the law." Sec. Exch. Comm'n v. Blatt, 
    583 F.2d 1325
    , 1335 (5th Cir.1978); see also
    Commodities Futures Trading Comm'n v. British American Commodity Options Corp., 
    788 F.2d 92
    , 94 (2d Cir.), cert. denied, 
    479 U.S. 853
    , 
    107 S. Ct. 186
    , 
    93 L. Ed. 2d 120
    (1986). For that
    reason, a disgorgement order is considered to be in the form of a continuing injunction in the
    public interest. Sec. Exch. Comm'n v. Huffman, 
    996 F.2d 800
    , 803 (5th Cir.1993).
    amount of such profits. Thus, the amount of the disgorgement order was arrived at by adjudication
    rather than by agreement. For these reasons, we hold that the underlying agreement supporting the
    disgorgement order did not transform the obligation into a "debt" for purposes of the Debt Collection
    Act.
    III.
    Accordingly, we reverse the judgment of the district court and remand for further
    proceedings consistent with this opinion and with Huffman. In doing so, we acknowledge that the
    district court has discretion to refuse to subject Clark's home to the disgorgement order; it is not
    required to compel disgorgement of the residence to meet his obligation to the SEC. See, e.g.,
    
    Huffman, 996 F.2d at 803
    . Rather, the only error is in the court's conclusion that it was precluded
    from considering the homestead in determining whether Clark had met his burden of establishing
    financial inability. Each party shall bear its own costs of this appeal.
    REVERSED and REMANDED.