Securities and Exchange Commission v. Daniel Imperato, e al.

Case: 19-11062 Date Filed: 10/11/2019 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11062
Non-Argument Calendar
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D.C. Docket No. 9:12-cv-80021-RNS
SECURITIES AND EXCHANGE COMMISSION,
Plaintiff-Appellee,
versus
DANIEL IMPERATO,
IMPERIALI, INC.,
CHARLES FISCINA,
LAWRENCE A O'DONNELL,
Defendants-Appellants.
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Appeal from the United States District Court
for the Southern District of Florida
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(October 11, 2019)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
Daniel Imperato appeals the district court’s denial of three post-judgment
motions seeking to vacate an amended judgment granting summary judgment to the
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Securities and Exchange Commission (“SEC”) in favor of its civil enforcement
action and ordering disgorgement of profits. On appeal, Imperato argues that the
district court’s entry of summary judgment and its disgorgement order violated his
Fifth and Seventh Amendment rights. Imperato has moved for summary reversal.
The SEC has moved for summary affirmance and to stay the briefing schedule.
Summary disposition is appropriate either where time is of the essence, such
as “situations where important public policy issues are involved or those where
rights delayed are rights denied,” or where “the position of one of the parties is
clearly right as a matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the appeal is
frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969).
An appeal is frivolous if it is without arguable merit either in law or fact. See Napier
v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002).
Under the law-of-the-case doctrine, findings of fact and conclusions of law by
an appellate court are generally binding in all subsequent proceedings in the same
case in the trial court or on a later appeal unless there is new evidence, an intervening
change in controlling law dictates a different result, or the appellate decision would
cause manifest injustice because it is clearly erroneous. Stout by Stout v. Jefferson
Bd. of Educ., 882 F.3d 988, 1014 (11th Cir. 2018).
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A notice of appeal in a civil case must be filed within 30 days after the order
appealed from is entered. Fed. R. App. P. 4(a)(1). The timely filing of a notice of
appeal in civil cases is a mandatory prerequisite to the exercise of appellate
jurisdiction. Green v. Drug Enforcement Admin., 606 F.3d 1296, 1300-02 (11th Cir.
2010).
Imperato does not appear to challenge the district court’s denial of his motions
to vacate the judgment but, rather, appears to be challenging the district court’s grant
of summary judgment in favor of the SEC. Because that judgment has been fully
litigated and we affirmed it, his appeal is barred by the law-of-the-case doctrine. See
Stout, 882 F.3d at 1014. Imperato has not provided any new evidence or pointed to
any changes in intervening law that would dictate a different result, nor is our prior
decision clearly erroneous. See id. Further, we lack jurisdiction to consider
Imperato’s argument that Kokesh v. Sec. & Exch. Comm’n, 137 S. Ct. 1635 (2017),
should be applied retroactively because he failed to appeal when the district court
denied his motion raising that issue in 2017, and the 30-day deadline for him to
appeal that order has passed. See Fed. R. App. P. 4(a)(1); Green, 606 F.3d at 1300-
02.
Thus, Imperato’s appeal is frivolous and there is no substantial question as to
the outcome of the case. See Davis, 406 F.2d at 1162. Accordingly, Imperato’s
motion for summary reversal is DENIED, the SEC’s motion for summary affirmance
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is GRANTED, and the SEC’s motion to stay the briefing schedule is DENIED as
moot.
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