good morning both of you each have fifteen minutes and is it do i pronounce her name is it if i can bomb ok i mr feigenbaum please let me know i know that you wanted to sit at counsel table we do require days and so i have to have you speak into the microphone otherwise it won't record our just so that i know i mean are you are all the is everything acceptable to you in terms of percent in your case yes ok i mean you are appearing pro se i you're representing cher master correct correct all right if you would start and up please state your name for the record and then having fifteen minutes each side if you could let me know if you want to reserve any time for rebuttal ok i'd like to reserve five minutes ok and please state your name for the record katie my name is howard i'm the owner sole proprietor and sole employee of a firm called share master i've been a member of finra the self regulatory organization for twenty seven years and also registered with the securities and exchange commission for that length of time my firm only deals with mutual funds and variable insurance but products by application only i hold no customer funds or securities  seven years ago i filed and you will report your statement and i relied on the us a section of the securities and exchange act of nine hundred thirty four section seventeen which grants my firm firms like mine an exemption from filing not to report i still have to file a report but at the not the audited i've been refused to accept the report because of question forgive me for interrupting the the well one of the arguments you made below was that you were seeking return of the thousand dollars that was in you on that and the issue here is when you know we're interpreted things to determine what's a final disciplinary disciplinary sanction and what is live at this time in term says and  that if that might be your best argument that that penalty or that fine the delay penalty a fine would be your best argument for having a live controversy well i'm disputing the but we generally if people don't bring stepped up in their opening brief then the first argument that we get from the other side is that you waived it so i think that's what we're asking you have  be able to look at what you said about it i got to be able to examine the other side's arguments back about it i didn't see any of that ok well for me the thousand dollars isn't the main issue  but the argument about the thousand dollars in the lower court yes yes i did but i'm here so hard it's hard to see how your adversary is prejudiced if you are maintaining dad that you didn't mean to waive  t and want to continue it here now so i guess i guess i appreciate the good judge's question but just tell me where in your brief you mentioned it i got a litigation i relied on sections nineteen the any of the securities exchange act which requires them to provide oversight and what they did instead of obeying the two things that the law requires one of which is that finra notify them of final disciplinary sanction and number two that i file a request within thirty days for a hearing which i did those are the only two things that are required to have them review my my case but they didn't do that instead during the course of the litigation they interpret the law and applied it retroactively so i have no right after they've made this i can't win because they've already changed the law after i relied on the law as it was and you i mean i understand your argument i want to ask you a couple questions and where in the statutes do i find any indication of what congress thought was alive controversy as relates to the s c c and as to this matter you don't find it and the  don't find it then the next thing i do is i look at this case called chevron i have to talk about chevron yes chevron says that if you don't find it and so therefore somebody has to determine whether it is really something in front of the f c c or not as long as the administrative agency gives a reasoned interpretation of the law as a relates to that we're bound i understand they have the right to interpret but the the right to interpret is limited by the clarity of the language and in this case the requirement for oversight and and using this interpretation they've been able to abandon the requirement for oversight in fact there interpret though you're saying if i interpret your language correctly here in saying that the language in the statute nineteen d that says they have an oversight in these matters is clear enough whether they have an oversight over this matter and therefore we don't give them any difference that's what i'm saying and the ninth circuit noted that in a footnote in the fenders of wild life it was footnote eleven must set aside such a fine if the commission finds that the fine was inappropriately levied by finra but the problem is we don't have that before us couldn't raise it in your brief ok well that's that's as to the fine correct well i mean what might make it a life controversy well there's another issue that makes it a lot of controversy and that's been there is to be applied my argument here is that that that's  stated that the suspension was to be lifted when i complied with the requirement of filing an audited report that happened on october sixth of two thousand and nine but they didn't lift the suspension until january twenty fourth of two thousand and ten there was a continuing injury and finra i tried to contact to resolve it and they didn't want to respond that's still open if they come in audit me tomorrow and they say did you do business between october sixth and january twenty fourth and they look at my records they have they according to fender they have the ability to find me so but did they not they've now corrected that they haven't corrected it if it's going to fail had to say if they could they could have none protonic put it back and not have the suspension that you're saying you still have the suspension on your record i do are you still suspended pardon me are you still suspended or  about that they came out with their suspension and it wasn't a complete suspension it was only temporary and to you either so to say that a stay of the suspension or you filed if you didn't seek this day which you could have done the next thing you do is you file the application for review on october not twenty nine and the next thing you do is you comply on november first so from october sixth to november first it was suspended as a result of your actions wasn't right but i and i guess you didn't do anything well and finally they lift the suspension but on november first you comply finally you file a report as requested and then it takes them another month and a half to lift the suspension and if that month and a half year after well it was five when you took half it was almost up from october sixth of november wanting to do something about it that i'm i'm i'm not seeking for that month and a half i've been saying it's something that they should have reviewed it should be set subject to oversight or if you're not see if you are not seeking any  that what's there to me and them to order finra to lift the suspension as of the date that i complied but the but the issue is what why would that be of any practical significance because in in my case they publish it they publish notice to the rest of the thin remembers that i i made a violation and other firms may not do business with me here that is all past history my question is now that you're no longer under suspension right york your claim is that they should have lifted it a month and a half right but that is that's not the the reason why i'm here today the reason here i'm here today is under section seven zero two of the administrative procedure act i have the right to ultimately judicial review i can't get to judicial review because they will hear they won't review my case with with often rez they're required to do you understand you understand sir that people can file lawsuits but if they thereafter settled the lawsuits they can go forward their case is well i understand that a place where you stand that principle i do but isn't that exactly what happened here this is a regulatory issue it requires oversight this is different this is not a dispute between two civil parties i am regulated i would understand your argument i mean ask you one other thing you suggest that the twelve hundred dollar or the thousand dollars is a fine the finra said it well the f c c says it wasn't a fine and all it was a late fee well i can't argue against me because i didn't obey the regulation or that the requirement to have a file that well the reason i asked that is a pretty important because you also were assessed costs right and the costs are simply costs that are assessed in every action where they're not they're not sanctions what you're doing is you're trying to suggest which if i look at appendix b three of what the f c c put sanction but they still have an obligation to review the there's nothing on the record is there that shows what the basis was for a thousand dollar late fee other than as a sanction for bing in my view of that is that the sanction was the period of suspension and the possibility of expulsion that's why i didn't apply for a stay there was no time limit in the room in their rules of practice that gave me the security of knowing within a certain time they would rule on the state they don't have to grant the stay on what you were say their position was if you had requested a stay then you would have a live controversy right right  disputing that the life controversy has to be part of it and if it does i have a continuing injury from the fact and it was in in place at the time that finra wrongfully extended my suspension and i was subject to expulsion i think there was a six month time period during which if i had remained suspended i would be expelled basically we've used all of your fifteen minutes but i'll give you three minutes for re morning morning your honour's nichols bronnie on behalf of the respondent securities exchange commission all right i think maybe we can just jump right in since i think the court's all well aware of the factual predicate here  you know there's a troubling aspect to all of this in terms of that you're asking for chevron deference and i'm not sure that you're not entitled to it but then if there are but i'm not sure that the way that you've determined a life controversy is is is reasonable all right that may be you know i'm not i think that a live controversy i see why that might be that that you would want to limit that too but it's hard to not look at this case and wonder why the i c c is making a federal case out of this with all of this and obviously there's there's something more at stake and i'm just you know that the appellant isn't a person that's been a totally irresponsible person i mean he when this requirement came out he contacted someone and you know he's tried to comply and then it seems that and then it's like well if you requested to stay then you would have a li controversy but on the other hand if you requested to stay he wouldn't know when you would act and you really didn't act within the timeframe you know at every turn it's back sort of a bureaucracy if you'd only done this then you could have done and now and then if you'd only maintained that he was still contesting the thousand dollars then maybe you have a live controversy in front of this court and but then you've got waiver and you know what's going on here in a lot of ways you're right this is an unusual case this is a case where things have happened that future experiences sort of are unlikely to happen but the commission doesn't deal sort of strictly with the what you want the law but you but you obviously have some discretion you could have mediated you could have done a number of things to maybe straighten this out but now it's what you're asking for if you sort of strikes at the heart of judges you know want to think if there is some mechanism to have a live controversy it just seems that every corner what this guy you told him he didn't he did you know he's damned if he did damned if he didn't you know and it seems that you could have handled this differently that's probably true there could have been another way to handle this but one thing that i would point to your honor's if alternately if i understand what your master with things warning alternately what he wants is review not so much of the sanction that was imposed in this case but he wants review of the what the commission generally refers to as a really doesn't want to be turned told at every turn that he doesn't have a life controversy and then he doesn't want to be told well if you'd only requested a stay then you would have to live controversy but for him to request to stay this guy doesn't make very much money you know it's a really small business it's not that he's trying to be a scofflaw and then he did all timidly as i think is judge smith said ok so he ultimately decided i'll pay the penalty i'll pay that all of this because i need to be in business and then you didn't let the stay right away anyway so i'm just wondering when you know maybe you are entitled to due deference you know if step one but then i look at one thousand easy and it correctly labeled and paid off but everywhere he went everyone said i can't do anything i can't do anything and here we are sitting in the ninth circuit over yeah and i just wonder if the result would have been then different if it would have been microsoft and they would have had all their tourn on a case by case by the fifth by finra on a case by case basis what the statutory system itself is nine hundred eighty and one thousand ysaye any final disciplinary oh i know that i'm talking about though you are you've you there is this term that you've adopted as to what constitutes a quote life controversy yes yes helen how was that how did that come into being so there if we step back sort of to look at the overall statutory thing that congress in terms we mean well i'm not sure there chevron difference this is where why i'm asking these questions is it's clear that if the statute is silent and the f c c issues a regulation then it's entire the chevron deference of us it's totally unreasonable cetera there's some cases already for saying although it's not totally clear in my view for saying it that if here i think what you're asking is that the system as the commission designed it here is that entitled to deference the commission took the overall fach tory scheme one thousand nine hundred one thousand they don't clearly spell out whether there have to be instead of seeing a live sanction that's one way to say it i think remand or set aside the sanction now that the backdrop to that system is that when congress adopted one thousand nine hundred eighty the whole framework that we have today it allowed a private preexisting as thorough regulatory system to largely remain in place and provided for commission review pursuant to this very specific framework and what the commission is saying your honor is where there is no sanction in place that it can affirm modify remand or set aside there simply is there is no mechanism for the commission to exercise jurisdiction and a number of courts have held the commission is limited to doing those things in reviewing a final disciplinary thanks and that is in one thousand nine hundred for instance the commission lacks the authority to increase if interim highlights so on that interpretation the why was why is assuming he doesn't waive the thousand dollar point why isn't that a sanction whether you call it a late fee or whatever why isn't it a sanction well  it's not if the commission determined it's not fine it's the fee so much so so you know that alice in wonderland is good about calling things by various names but why why isn't it yes want i guess i'm trying to figure out what the commission said the commission said late fee is that a sanction or isn't that's his question in my book maybe he wants to ask it a little bit differently because he wants to lead a little bit but that's what i want your answer to but the commission determined that it wasn't a fine it was the late fee that's what was described as the part of the problem here is the sherman after attached a document to filing what he didn't from the commission and if you look at the commissions if they determine is that of late if they determine it to be a late fee and they just call it that just that then always evade review the commission has said it lacks the jurisdiction to review those types of fees again it's it's flipping back and looking at the overall scheme here congress opted to leave a largely private preexisting with them in place and only gave the commission the ability to do certain things and the commission have long said it lacks the ability to order the return of song administrative fee type things again part of the problem here sure master didn't organize brief he didn't clearly explain what it was when he filed it with the client and said that is part of the problem but part of the problem is the way that they handle it too and someone  just i mean anyone they start with they're everywhere you go well no you can't do that you can't do that and so it's isn't there if you're going to say something has to be live if we say things are moved generally along with that there are exceptions to mitt ness that allow you to say this but otherwise evade review and it's you know if you want total deference but then you want to totally evade to review it it makes it you know i mean we don't want to hear oh we don't want to you know we don't want to hear these cases but if people have if if something completely evades review and at every turn there really is no option for someone then it i mean you know you could have bought a mercedes but if you don't have any money to buy a mercedes then you know it's so just step back there with gordon what will the point there well i mean you want you want this rule i think because you're looking big but he's the guy that sitting here who small so i so if if if agencies want deference to we don't really want to hear these we need to sort of on some level there needs to be it can't be arbitrary and capricious it needs to be reasonable and if you set up a system that looks like for this guy that at every turn it you paid to review it doesn't it really doesn't but i understand why the mechanism why we don't really want to be here in all these cases too and i understand but your honor again this is mean they did tell me that they don't have the authority for something like this that that's really that doesn't help your case step back to your honor it's the system the congress created congress gave the commission again we've you know thoros largely independent gave the commission specific powers and things that it could do the commission can't go beyond the powers in reviewing a file disciplinary sanction now the commission can do other things again if he wants an interpretation of what he really cares about it you can ask for an interpretive relief you could file an e p a action there are other things that he could have done he opted not to do those things generous a different question where what you're describing and leave the the the panel didn't describe it difficulty but nevertheless i don't see in the record from what i've looked at any place where finra described it as a late fit do you have anything in the country again i'm not sure five dollars which includes an administrative fee of seven hundred fifty dollars and the cost of the hearing transcript and it seems to be conceded that the cost of the hearing transcript was not one thousand and thirty five dollars but rather was if he had mentioned it in his brief here would we have a live controversy if you had mentioned that if he had and it's open for a few risks if he was if he had said he was contesting the thousand dollar late penalty as a fine would we have a live controversy here would be discussing whether or not the commission's finding on that point that it was a fear not a fine with supported by substantial evidence but again because he didn't make that argument i don't think he'd read it but let's say but i want you to answer this hypothetically if he had raised that in his brief is it a life controversy i think that the commission's determination that if the fee is supported by the record given what's in the record and therefore what you said you said on the record you can't tell what it was the commission's determination was that the only thing in the record the only document l you know and and that's why when you have bad facts that's not necessarily the best time to determine the law but what you know what we have to follow the law but when you want chapter and deference and you know you want all of these things it could just as easily be one hundred thousand dollars and that really wouldn't be different than his under the law but you're saying it would they're like we pay close attention if it's one hundred thousand but a thousand no i think again what the commission would do with the commission i can't speak  like controversy needs to have it would need to have standards and it should be the same whether it's a thousand or a hundred thousand or a million there are other mechanisms this is where you are there are other mechanisms that the commission thousand or a hundred thousand we really i mean if we're dealing with legal principle is to call frankly frankly i'm wondering why your answer is and it's depends on whether it's a cost or a sanction i would say to me that's to be it seems to me that's the answer to this to these continual leading questions it's either a cost or it's a sanction and in this case the commission determined based on everything here it was a late fee it was a cost the same cost estab i kind of needed to hear his answer though so i'm sorry that i took you into overtime if that if my colleague didn't want me to but i it is a matter of not wanting to i think that he is answer here it's either a sanction or a cost if it were a sanction  right thank you for your time is and over time that we took it there that's not your paul all right i'm giving you three minutes for rebutt had the law when i started and then when i finished i didn't i had an interpretation of the law and i had to an interpretation of the law that lacked fairness and the fairness it lacked is one which you raised and that is it was in gives me some hope of having fairness that's what that's what i i see in it and i'm not a lawyer and i can't debate the the fine points but what i do see is that i can i can read a statute and i can see that the statute says i have a right to review with two things happened and those two things happen and then an interpretation comes comes along which deprived me of that and it happens after i've relied on the law it becomes retroactive so i'm at a distinct disadvantage i'm up against a very powerful administrative agency and i'm powerless against it unless i can rely on the law and when they can ha the ability to change the law after i've relied on it that's where i think fairness suffers and where when people rely on the law and its plain language and then to have somebody come along afterwards and rip it out you know makes you the spare about the possibilities of fairness and in conducting your life and conducting your business and that's why i'm here because they can do what they want and they're owed deference in a lot of situations but i don't think they're owed deference when it takes away my right s for appeal that's a very important right to an individual and they're stripping it away you may have arguments why they can do it but for me there's no there's no choice i have to submit and i've