Post by seeking1 on Aug 22, 2011 17:28:03 GMT -5
Thank You Sweetsp7
Summary affirmance of the district court’s dismissal is appropriate when “it is clear from the face of the appellant’s pleadings that . . .
the appeal is patently insubstantial or clearly controlled by precedent . . . .â€Â
In re Keith, 508 F.3d 1225, 1227 (9th Cir. 2007); See also United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam).
1. The district court properly dismissed Appellants’ Takings Claim As the district court noted
Appellants’ takings claim fails because such a claim is not cognizable under the present facts. Broad, 85 F.3d at 430. In Broad, this Court considered the takings claim of a number of shareholders who challenged the creation of a trust that favored one group of shareholders over another. Id. at 425-426. In rejecting the takings claim, this Court noted that, “almost universally,†takings claims involve rights to real property, and plaintiffs cited no cases suggesting that the Takings Clause applied to their personal property. Id. at 430. This Court further noted that shareholders did not “directly own any part of a corporation’s property or assets,†and that shareholders merely held a “proportionate interest in the corporate equity remaining after a corporation 6 Case: 11-55169 08/22/2011 ID: 7866111 DktEntry: 13-1 Page: 7 of 10 (8 of 12) meets all its other debts and obligations.†Id. Accordingly, this Court concluded that “the plaintiff shareholders have no proprietary interest that could have been taken.†Id.
Here, Appellants claim they are entitled to recover their interest in CMKM stock that was placed in a trust. As in Broad, Appellants do not have a proprietary interest in the funds that could have been taken under the Takings Clause. Thus, the district court properly held that Appellants’ takings claim fails to state a claim, and this Court should summarily affirm dismissal of that claim.
2. The district court properly dismissed Appellant’s Due Process Claim
The district court properly dismissed Appellants’ due process claim as well. In asserting a procedural due process claim, Appellants must establish: (1) the deprivation of a constitutionally protected liberty or property interest; and (2) a denial of adequate procedural protection. Brewster v. Bd. of Educ. of the Lynwood Unified School Dist., 149 F.3d at 982. Property rights are not created by the Constitution, but are defined by independent sources such as state law, statutes,ordinances, regulations or express and implied contracts. Board of Regents of State Coll. v. Roth, 408 U.S. at 577 (“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim 7 Case: 11-55169 08/22/2011 ID: 7866111 DktEntry: 13-1 Page: 8 of 10 (9 of 12) of entitlement to it.â€Â). As the district court stated, Appellants have asserted nothing more than a “unilateral expectation†of receiving funds but have not demonstrated a “legitimate claim of entitlement†to such funds. (Exhibit B). Moreover, to the extent Appellants’ claim that the SEC, in its discretion, wrongfully denied release of the alleged trust funds, such a claim does not lie. An individual has no property interest in a particular benefit where a government agency retains discretion to grant or deny the benefit. See, e.g., Erickson v. United States, 67 F.3d 858, 862 (9th Cir. 1995); Greenwood v. FAA, 28 F.3d 971, 976 (9th Cir. 1994); Swanson v. Babbit, 3 F.3d 1348, 1353-54 (9th Cir. 1993).
Therefore, this Court should summarily affirm the district court’s decision to dismiss Appellants’ due process claim because they have failed to establish a legitimate claim of entitlement to, or a property interest in, the funds at issue.
3. The district court lacked subject matter jurisdiction for other reasons
Appellants improperly asserted claims against the SEC Commissioners in their official capacities, which are barred by sovereign immunity. Hodge v. Dalton, 107 F.3d at 707. ////// 8 Case: 11-55169 08/22/2011 ID: 7866111 DktEntry: 13-1 Page: 9 of 10 (10 of 12) B. This Court Should Grant A Stay Appellees seek a stay in the briefing schedule until this motion is decided.
Appellants’ brief is due August 24, 2011 and Appellees’ brief is due September 23, 2011.
Dated: August 22, 2011
Respectfully submitted,
ANDRÉ BIROTTE JR.
United States Attorney
LEON W. WEIDMAN
Assistant United States Attorney
Chief, Civil Division
Summary affirmance of the district court’s dismissal is appropriate when “it is clear from the face of the appellant’s pleadings that . . .
the appeal is patently insubstantial or clearly controlled by precedent . . . .â€Â
In re Keith, 508 F.3d 1225, 1227 (9th Cir. 2007); See also United States v. Hooton, 693 F.2d 857, 858 (9th Cir.1982) (per curiam).
1. The district court properly dismissed Appellants’ Takings Claim As the district court noted
Appellants’ takings claim fails because such a claim is not cognizable under the present facts. Broad, 85 F.3d at 430. In Broad, this Court considered the takings claim of a number of shareholders who challenged the creation of a trust that favored one group of shareholders over another. Id. at 425-426. In rejecting the takings claim, this Court noted that, “almost universally,†takings claims involve rights to real property, and plaintiffs cited no cases suggesting that the Takings Clause applied to their personal property. Id. at 430. This Court further noted that shareholders did not “directly own any part of a corporation’s property or assets,†and that shareholders merely held a “proportionate interest in the corporate equity remaining after a corporation 6 Case: 11-55169 08/22/2011 ID: 7866111 DktEntry: 13-1 Page: 7 of 10 (8 of 12) meets all its other debts and obligations.†Id. Accordingly, this Court concluded that “the plaintiff shareholders have no proprietary interest that could have been taken.†Id.
Here, Appellants claim they are entitled to recover their interest in CMKM stock that was placed in a trust. As in Broad, Appellants do not have a proprietary interest in the funds that could have been taken under the Takings Clause. Thus, the district court properly held that Appellants’ takings claim fails to state a claim, and this Court should summarily affirm dismissal of that claim.
2. The district court properly dismissed Appellant’s Due Process Claim
The district court properly dismissed Appellants’ due process claim as well. In asserting a procedural due process claim, Appellants must establish: (1) the deprivation of a constitutionally protected liberty or property interest; and (2) a denial of adequate procedural protection. Brewster v. Bd. of Educ. of the Lynwood Unified School Dist., 149 F.3d at 982. Property rights are not created by the Constitution, but are defined by independent sources such as state law, statutes,ordinances, regulations or express and implied contracts. Board of Regents of State Coll. v. Roth, 408 U.S. at 577 (“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim 7 Case: 11-55169 08/22/2011 ID: 7866111 DktEntry: 13-1 Page: 8 of 10 (9 of 12) of entitlement to it.â€Â). As the district court stated, Appellants have asserted nothing more than a “unilateral expectation†of receiving funds but have not demonstrated a “legitimate claim of entitlement†to such funds. (Exhibit B). Moreover, to the extent Appellants’ claim that the SEC, in its discretion, wrongfully denied release of the alleged trust funds, such a claim does not lie. An individual has no property interest in a particular benefit where a government agency retains discretion to grant or deny the benefit. See, e.g., Erickson v. United States, 67 F.3d 858, 862 (9th Cir. 1995); Greenwood v. FAA, 28 F.3d 971, 976 (9th Cir. 1994); Swanson v. Babbit, 3 F.3d 1348, 1353-54 (9th Cir. 1993).
Therefore, this Court should summarily affirm the district court’s decision to dismiss Appellants’ due process claim because they have failed to establish a legitimate claim of entitlement to, or a property interest in, the funds at issue.
3. The district court lacked subject matter jurisdiction for other reasons
Appellants improperly asserted claims against the SEC Commissioners in their official capacities, which are barred by sovereign immunity. Hodge v. Dalton, 107 F.3d at 707. ////// 8 Case: 11-55169 08/22/2011 ID: 7866111 DktEntry: 13-1 Page: 9 of 10 (10 of 12) B. This Court Should Grant A Stay Appellees seek a stay in the briefing schedule until this motion is decided.
Appellants’ brief is due August 24, 2011 and Appellees’ brief is due September 23, 2011.
Dated: August 22, 2011
Respectfully submitted,
ANDRÉ BIROTTE JR.
United States Attorney
LEON W. WEIDMAN
Assistant United States Attorney
Chief, Civil Division