2 1

- 1342

- cv SEC v. Govender ( Fishoff )
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT ’ S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “ SUMMARY O RDER ” ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Second Circuit, 1 held at the Thurgood Marshall United States Courthouse, 40 Foley Square , in the 2 City of New York, on the 2 2 n d day of N o v e m b e r , two thousand twenty

- two

. 3 4 PRESENT: DENNIS JACOBS , 5 RICHARD C. WESLEY, 6 RAYMOND J. LOHIER, J R., 7 Circuit Judges

. 8

------------------------------------------------------------------ 9 SECURITIES AND EXCHANGE 10 COMMISSION , 11 12 Plaintiff

- Appell ee , 13 14

v. No. 2 1

- 1342

- cv 15 16 DESHAN GOVENDER , 17 18 Defendant

- Appell ant

. ∗ 19

------------------------------------------------------------------ 20 21

∗ The Clerk of Court is directed to amend the caption as set forth above.2 FOR PLAINTIFF

- APPELLEE: P AUL G. A LVAREZ , Senior 1 Litigation Counsel ( John J. 2 Avery , Deputy Solicitor , on the 3 brief ), for Dan M. Berkovitz , 4 General Counsel, U.S. 5 Securities and Exchange 6 Commission , Washington , DC 7 8 FOR DEFENDANT

- APPELLANT: Deshan Govender, pro se , 9 Albany, NY 10 11 12 Appeal from judgment s of the United States District Court for the 13

Southern District of New York ( Andrew L. Carter , Judge ). 14

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 15

AND DECREED that th e appeal is DISMISSED in part and the judgment of the 16

District Court is AFFIRMED in part

. 17
Deshan Govender, proceeding pro se , appeals from a June 4, 2019 partial 18
consent judgment entered in to with the Securities and Exchange Commission 19
(“SEC”) , and a September 30 , 2020 judgment of the District Court (Carter, J. ) 20
ordering him to pay a civil penalty of $445,576. Govender also moves to 21
supplement the record on appeal with additional documents regarding his 22

financial situation. We assume the parties’ familiarity with the underlying facts 23
and the record of prior proceedings, to which we refer only as necessary to 243 ex plain our decision. 1
Turning first to Govender’s appeal of the consent judgment , we agree with 2

the SEC that Govender is precluded from appeal ing the consent judgment here

. 3
“Appeal from a consent judgment is generally unavailable on the ground that the 4

par ties are deemed to have waived any objections to matters within the scope of 5
the judgment

. ” LaForest v. Honeywell Int’l Inc. , 569 F.3d 69, 73 (2d Cir. 2009)

. 6

W e have recognized exceptions to this rule “ where (i) the [appealing] party did 7

not actually consent

. . . or (ii) the court lacked subject matter jurisdiction to enter 8
the judgment ,” Priest v. C .I.R. , 173 F.3d 845 (2d Cir. 1999) (table) , or the 9
appealing party has “expressly p reserve [ d ] the right to appeal ” the judgment , see 10

LaForest , 569 F.3d at 73

. None of these exceptions apply here. First, G ovender 11
concedes that he entered into the partial consent judgment voluntarily

– and 12

with the assistance of counsel

– “so [he] could get on with [his] life and take 13

action to repair [his] reputation

. ” Pet. Br. 17

. Second, the District Court clearly 14

had subject matter jurisdiction over this proceeding

. S ee 28 U.S.C. § 1331; 15 15
U.S.C. § 78aa. Although Govender suggests otherwise and claims that the SEC 16
filed its complaint after the five

- year statute of limitations for SEC enforcement 17
actions expired, we have held that th e statute is not jurisdictional

. S ee SEC v. 184 Fowler , 6 F.4th 255, 26 0

– 6 1 (2d Cir. 2021)

. Lastly, Govender did not expressly 1
preserve any right to appeal the consent judgment. In summary, Govender is 2
precluded from appealing the partial consent judgment

. W e therefore dismiss 3
his appeal insofar as it seeks review of th at judgment

. See Priest , 173 F.3d 845 , 4

at *1 ; In re Refco , 505 F.3d 109, 120 (2d Cir. 2007)

. 5

Next, we consider whether the District Court abused its discretion when it 6
ordered Govender to pay $ 445,576 in civil penalties

. 1 See SEC v. Kern , 425 F.3d 7

143, 153

– 54 (2d Cir. 2005). Govender argues that the District Court based its 8

civil

- penalty determination on a flawed assessment of his ability to pay. We 9
disagree. When t he District Court lowered Govender’s civil penalty from the 10
SEC’s proposed amount of $668,364 to $445,576, it credited Govender’s assertions 11

about his financial situation , specifically acknowledging “the amount of debt 12
Govender faces as well as the extent to which this action has hindered his ability 13

1 We deny Govender’s motion to supplement the record with additional documents regarding his financial situation. We consider new evidence on appeal only in “extraordinary circumstan ces,” Int’l Bus. Machs. Corp. v. Edelstein , 526 F.2d 37, 45 (2d Cir. 1975), such as when the new material would “clarif[y] our understanding of the process by which the District Judge reached the decision challenged on appeal,” Salinger v. Random House, In c. , 818 F.2d 252, 253 (2d Cir. 1987). Here, the District Court has already mitigated Govender’s civil penalty on account of his assertions of financial hardship. The additional proffered documents about his financial situation would not aid our ability t o review the District Court’s civil

- penalty order.5 to find employment

. ” App’x 235. I n concluding that Govender should be 1
subject to a “substantial fine,” App’x 234

– 35, the District Court also properly 2
considered that Govender’s conduct was egregious, knowing, and central to a 3
larger fraudulent scheme

. The District Court ’s decision to impose a civil penalty 4
of $445,576 after weighing these factors and Govender’s financial hardship fell 5

within “ the range of permissible decisions , ” SEC v. Razmilovic , 738 F.3d 14, 25 6
(2d Cir. 2013) , and we therefore affirm the challenged judgment

. 7

We have considered Govender’s remaining arguments and conclude that 8
they are without merit. For the foregoing reasons, Govender’s appeal of the 9
partial consent judgment is DISMISSED, and the September 30 , 2020 judgment of 10

the District Court is AFFIRMED

. Govender’s motion to supplement the record 11
on appeal is DENIED. 12

FOR THE COURT: 13 Catherine O ’ Hagan Wolfe, Clerk of Court 14