UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PT PUKUAFU INDAH, PT LEBONG

TANDAI, PT TANJUNG SERA PUNG,

GIDEON MINERALS U.S.A., INC.,

and DR. LEONARD L.J. YOUNG,

Plaintiffs,

v. Case No. 09-10943

Honorable Patrick J. Duggan

UNITED STATES SECURITIES &

EXCHANGE COMMISSION, MARY

J. SCHAPIRO, THE EXPORT IMPORT

BANK OF THE UNITED STATES, JAMES H.

LAMBRIGHT, JP MORGAN CHASE & CO.,

NEWMONT MINING CORP., GOLDMAN 

SACHS GROUP, INC., 

PRICEWATERHOUSECOOPERS, LLC,

JAMES NELSON LANE, DEVONWOOD

CAPITAL PARTNERS, LLC, and

NEW CANAAN SOCIETY,

Defendants.

____________________________/

OPINION AND ORDER DENYING PLAINTIFFS’

EMERGENCY MOTION FOR RECONSIDERATION

At a session of said Court, held in the U.S.

District Courthouse, Eastern District

of Michigan, on_September 10, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

 U.S. DISTRICT COURT JUDGE

On August 12, 2009, Plaintiffs filed an “Emergency Motion for Preliminary

Injunction” in which they sought a preliminary injunction ordering the Securities and

Exchange Commission (“SEC”), SEC Chair Mary Schapiro, and

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PriceWaterhouseCoopers LLC (“PriceWaterhouse”) “to cease and desist from certifying

certain reports of Newmont Mining Corporation (‘Newmon’).” On August 19, 2009, this

Court entered an opinion and order denying Plaintiffs’ motion. Plaintiffs now have filed

an “Emergency Motion for Reconsideration.”

Eastern District of Michigan Local Rule 7.1(g) provides that a motion for

reconsideration only should be granted if the movant demonstrates that the court and the

parties have been misled by a palpable defect and that a different disposition of the case

must result from a correction of such a palpable defect. E.D. Mich. LR 7.1(g). Plaintiffs

fail to demonstrate such a defect in the Court’s decision.

First, Plaintiffs fail to demonstrate that the SEC does not exercise discretion in its

decisions with respect to Newmont’s filings and that, therefore, relief is available

pursuant to 5 U.S.C. § 702. The cases cited by Plaintiffs in their motion for

reconsideration support this Court’s holding that “§ 702 does not apply ‘to the extent that

. . . agency action is committed to agency discretion by law.’” (Doc. 87 (quoting 5 U.S.C.

§ 701(a); Heckler v. Chaney, 470 U.S. 821, 828, 105 S. Ct. 1649, 1654 (1985)).) 

Plaintiffs fail to suggest how the Fifth Amendment applies to the circumstances alleged in

their complaint as there is no indication that the SEC has appropriated their property for

public use. See Peters v. Fair, 427 F.3d 1035, 1037 (6th Cir. 2005) (citing U.S. CONST.

amend. V) (“The Fifth Amendment’s Takings Clause prohibits appropriation of private

property for public use only where just compensation is not paid.”) Notably, Plaintiffs

have not presented evidence to demonstrate that the claimed property in fact belongs to

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them. Moreover, such a claim would not be cognizable as to PriceWaterhouse which is

not a governmental entity and where there are no allegations indicating that its actions are

“fairly attributable” to the government. See Flagg v. Yonkers Savings & Loan Ass’n, FA.,

396 F.3d 178 (2d Cir. 2005) (quoting United States v. Int’l Bhd. of Teamsters, 941 F.2d

1292, 1295 (2d Cir. 1991) (“Because the United States Constitution regulates only the

Government, not private parties, a litigant claiming that his constitutional rights have

been violated must first establish that the challenged conduct constitutes ‘state action’”);

Bajwa v. Sunoco, Inc., 320 F. Supp. 2d 454, 459 (E.D. Va. 2004) (“[t]he takings clause

does not provide for a cause of action against a private party.”)

Second, Plaintiffs never moved to have Judge Murphy’s previous denial of their

motion seeking identical relief vacated and thus that ruling stands; nor have Plaintiffs

demonstrated that Judge Murphy’s decision should be vacated. Because the Court finds

that Plaintiffs do not set forth a legal basis for an injunction against PriceWaterhouse, it is

irrelevant that PriceWaterhouse was not a party when the prior motion was heard. 

Finally, regardless of whether Plaintiffs have stated numerous times that they have lost

business opportunities as a result of Defendants’ alleged misconduct, they have failed to

present any evidence or even specific details to substantiate their assertions.

For these reasons,

IT IS ORDERED, that Plaintiffs’ Emergency Motion for Reconsideration is

DENIED. 

s/PATRICK J. DUGGAN

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UNITED STATES DISTRICT JUDGE

Copies to:

Dr. Leonard L.J. Young

Counsel of Record

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