# Zipper v. Securities and Exchange Commission

> District Court, S.D. Florida · March 28, 2024

URL: https://www.frixlaw.com/law-library/cases/10123170

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** March 28, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

SUONUITTEHDE RSTNA DTIESTS RDIICSTTR OIFC TF LCOORUIRDTA

CASE NO. 24-CV-21060-RAR

BRUCE ZIPPER,

Plaintiff,

v.

SECURITIES AND EXCHANGE COMMISSION,

Defendant.
________________________________/

ORDER OF DISMISSAL
THIS CAUSE comes before the Court upon an initial screening pursuant to 28 U.S.C. §
1915. On March 19, 2024, Plaintiff Bruce Zipper, acting pro se, filed his Complaint, [ECF No.
1]. Plaintiff’s Complaint seeks a Writ of Mandamus from the Court ordering the Securities and
Exchange Commission (“SEC”) to render a decision on Plaintiff’s appeal of Financial Industry
Regulatory Authority (“FINRA”) sanctions entered several years ago against Plaintiff and his
securities firm. See Compl. at 8. But upon initial screening, the Court finds that it lacks subject-
matter jurisdiction over Plaintiff’s action. Accordingly, it is hereby
ORDERED AND ADJUDGED that Plaintiff’s Complaint is DISMISSED without
prejudice to Plaintiff refiling his Complaint in the proper United States Court of Appeals, as
explained herein.
ANALYSIS
“[A] court sua sponte can raise a jurisdictional defect at any time, leading to dismissal of
the relevant action.” Taliaferro v. United States, 677 F. App’x 536, 537 (11th Cir. 2017) (quoting
Barnett v. Bailey, 956 F.2d 1036, 1039 (11th Cir. 1992)); see also FED. R. CIV. P. 12(h)(3) (“If the
court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the
jurisdiction. Plaintiff is “seeking the Court to grant this Writ of Mandamus and force the [SEC]
to render a decision in [Plaintiff’s] appeal with the exchange to overturn FINRA Sanctions of
disbarring Mr. Zipper and his firm, Dakota Securities International, from securities industry.”
Compl. at 8. Plaintiff further claims that his case has been pending for over 6 years without the
SEC making a determination on his appeal. Id. But mandamus actions like this one—which seek
relief on the basis of unreasonable federal agency delay—are committed to the exclusive
jurisdiction of the United States Courts of Appeal. Accordingly, the Court lacks subject-matter
jurisdiction over this action, and it must be dismissed.
“The FINRA Code of Procedure sets forth a multi-layered hearing and appeals process that
governs disciplinary actions against FINRA-affiliated brokers and dealers.” Turbeville v. Fin.

Indus. Regul. Auth., 874 F.3d 1268, 1271 (11th Cir. 2017). “Once FINRA formally charges a
broker with a violation by filing a complaint, a FINRA hearing panel conducts a full hearing to
determine whether the individual violated FINRA regulations, and, if so, imposes sanctions.” Id.
(citing FINRA Rule 9200 setting forth FINRA’s disciplinary procedures). “The individual may
then appeal the hearing panel’s finding and punishment to FINRA’s appeals board, the National
Adjudicatory Council (“NAC”).” Id. (citing FINRA Rule 9311(a)). “After that, a broker may, as
of right, seek de novo review of the NAC’s decisions in the SEC.” Id. (citing 15 U.S.C. §
78s(d)(2)). “Finally, the broker may appeal the SEC’s decision to a federal court of appeals—
again, as of right.” Id. (citing 15 U.S.C. § 78y(a)(1)).

Turning to 15 U.S.C § 78y(a)(1)—the specific statutory provision at issue—the statute’s
text makes clear that appeals of SEC decisions like this one are committed to the jurisdiction of
the Courts of Appeal: “A person aggrieved by a final order of the Commission entered pursuant
to this chapter may obtain review of the order in the United States Court of Appeals for the circuit
in which he resides or has his principal place of business, or for the District of Columbia Circuit,
by filing in such court, within sixty days after the entry of the order, a written petition requesting
that the order be modified or set aside in whole or in part.” 15 U.S.C. § 78y(a)(1); see, e.g.,
Busacca v. S.E.C., 449 F. App’x 886, 889 (11th Cir. 2011). While § 78y(a)(1) ordinarily
establishes circuit court jurisdiction over final agency orders only, the Eleventh Circuit’s so-called
Busey1 exception to this rule carves out a narrow exception establishing circuit court jurisdiction
even when no order has been issued, in those circumstances where the absence of such an order
“might affect the future adjudicative power of the circuit court.” Ass’n Of Citizens To Protect And
Pres. The Env’t Of The Oak Grove Cmty. v. F.A.A., 287 F. App’x 764, 766 (11th Cir. 2008)
(quoting Busey, 999 F.2d at 1422).
Put differently, the Busey exception applies when an agency’s failure to act results in a

final order having yet to be issued, thereby indefinitely depriving the circuit courts of
jurisdiction. Ass’n Of Citizens, 287 F. App’x at 766 (citing Busey, 999 F.2d at 1422). And as to
whether that jurisdiction is vested exclusively in the circuit court or concurrently in both the district
court and the circuit court, Busey further confirms that it is vested exclusively in the circuit court.
Busey, 999 F.2d at 1421–23 (holding that, where a statute specifically vests the circuit courts with
jurisdiction to review agency actions, judicial review of a federal agency’s failure to issue a final
order is vested exclusively in the circuit courts; finding the district court lacked subject-matter
jurisdiction to render judgment on the propriety of mandamus in this context; and affirming district
court’s dismissal for lack of subject-matter jurisdiction).

Finally, as to whether dismissal without prejudice or transfer to the proper Court of Appeals
is the more appropriate disposition, the Court finds that dismissal without prejudice is more
appropriate here. In Busey, the Eleventh Circuit explained that “the appropriate procedure for a

1 Kabeller, Inc. v. Busey, 999 F.2d 1417 (11th Cir. 1993).
district court to follow when it determines that it lacks jurisdiction is to transfer the case to a court
with jurisdiction, rather than dismiss the case, providing such action is in the interest of justice.”
Busey, 999 F.2d at 1423 (cleaned up) (quoting Federal Trade Comm’n v. Standard Oil Co., 449
U.S. 232, 246 (1980)). To be clear, the delay alleged by Plaintiff here is extraordinary. But given
that the SEC’s review of FINRA sanctions entered against Plaintiff and his securities firm still
appears to be ongoing, disruption of such agency review by way of transfer will not serve the
interests of justice. /d. (finding agency delay in issuing final order was “not so unreasonable as to
warrant mandamus” and explaining that “[g]iven that appellant’s complaint is still under review,
transfer is not in the interest of justice.”); see also Telecommunications Research and Action
Center v. F.C.C., 750 F.2d 70, 80-81 (D.C. Cir. 1984) (finding agency delays of two and five years
did not warrant mandamus).
CONCLUSION
In sum, because exclusive jurisdiction over mandamus actions of this kind is vested in the
circuit courts, this Court is left without subject-matter jurisdiction over Plaintiff's Complaint.
Accordingly, this action must be dismissed sua sponte. Plaintiff can seek mandamus relief directly
in the appropriate United States Court of Appeal. It is thus ORDERED AND ADJUDGED that
Plaintiffs Complaint, [ECF No. 1], is DISMISSED without prejudice.’ The Clerk is directed to
CLOSE this case. Any pending motions are DENIED AS MOOT.
DONE AND ORDERED in Miami, Florida, this 28th day of March, 2024.

UNITED STATES DISTRICT JUDGE

* A dismissal for lack of subject-matter jurisdiction is “entered without prejudice.” Yeh Ho v. Sabocik, 775
F. App’x 551, 555 (11th Cir. 2019) (citing Stalley ex rel. United States v. Orlando Reg’! Healthcare Sys.,
Inc., 524 F.3d 1229, 1232 (11th Cir. 2008)).
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10123170. Public record. Not legal advice.