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 t ion to Dispense With Oral Argument and

Summarily Reverse the Di st rict Co urt 's Decision, asserting that our recent holding in S ec. 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 and1 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." 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 agre ement 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 C lark 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 contem pt. As neither Cl ark nor hi s 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 Cla rk 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 st a tement and personal tax returns for the

past three years. Bo t h 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 abilit y to comply with the disgorgement [order]3 See T EX .P ROP .C ODE A NN . § 41.002 (Vernon Supp.1993).

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 1 990, 28 U.S.C. § 3001 e t 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." S ee 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 inabi lit y 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 inabilit y is a defense for failure to comply with

a court-ordered disgorgement. D onovan v. Sovereig n 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 dem onstrating a l ack 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 reside n ce 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.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. 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), c ert.

denied, 496 U.S. 912, 110 S.Ct. 2603, 110 L.Ed.2d 283 (1990); c f. 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 t his 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

implicit ly 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; or5 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. (B) an amount that i s 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 in debt edness to the United States, but that is not owing

under the terms of a contract originally entered into by only persons other t han the United

States; and includes any amount owing to the United States for the benefit of an Indian tribe

or ind ividual 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 ha s any application here.

Accordingly, the proper focus is upon whet her 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 P ierce v. Vision Invs., Inc., this

court held that court-ordered "disgorgement" payments were in essence "an injunction in the public

i nterest" 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. F irst 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

disgor gement is not to compensate the victims of the fraud, but to deprive the wrongdoer of his

ill-gotten gain." S ec. Exch. Comm'n v. Blatt, 583 F.2d 13 25, 1335 (5th Ci r.1978). S ee also Sec.

Exch. Comm'n v. Commo nwealth Chem. Sec., Inc., 574 F.2d 90, 102 (2d Cir.1978). Since

disgorgement is not s imilar t o those obligations specifically defined as "debts" under the Debt

Collection Act, it is appropriate to conclude that a court order co mpelling disgorgement does notconstitute 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 lawsu it." S ee 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, h o wever, t he "contract principles" argument was arguably preserved.

Sinc e Clark is p ro se, we must construe his allegations and briefs more permissively. M cCabe 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); O rtiz v. Cornetta, 867 F.2d 146, 148 (2d Cir.1989) ( pro

se litigant subject to less stringent standards than one represented by counsel). C f. 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 H uffman, namely,

wheth er 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. S ee

Loca l 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 o f the court,

however, it takes on an added significance. K aspar 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 i nter partes. The court is not properly a recorder of contracts; it is an organ o f7 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). government constitute d t o make judicial decisions, and when it has rendered a consent

judgment it has made an adjudication.

1B J AMES W. M OORE

, M OORE ' S F EDERAL P RACTICE

, ¶ 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 in junction is enforced." 1B

M OORE ' S F EDERAL P RACTICE

, ¶ 0.409[5], at III-149. This court, in P ierce, 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 c f. 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 theamount of such profits. Thus, the a mount 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 disc ret io n t o refuse to subject Clark's home to the disgorgement order; it is not

required to co mpel disgorgement of the residence to meet his obligation to the SEC. S ee, 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 dete rmining whether Clark had met his burden of establishing

financial inability. Each party shall bear its own costs of this appeal.

REVERSED and REMANDED.