Arthur Lipper Corp. v. S.E.C.

• Citation: 551 F.2d 915
• Decision Date: 27 December 1976
• Docket Number: D,No. 165,165
• Parties: Fed. Sec. L. Rep. P 96,001 ARTHUR LIPPER CORPORATION and Arthur Lipper, III, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent. ocket 76-4067. . Petition for Rehearing
• Court: U.S. Court of Appeals — Second Circuit

Page 915

551 F.2d 915

Fed. Sec. L. Rep. P 96,001

ARTHUR LIPPER CORPORATION and Arthur Lipper, III, Petitioners, v. SECURITIES AND EXCHANGE COMMISSION, Respondent.

No. 165, Docket 76-4067.

United States Court of Appeals Second Circuit.

Petition for Rehearing Dec. 27, 1976.

Order Denying Petition for Rehearing March 22, 1977.

Dissenting Opinion April 1, 1977.

A petition for rehearing of 547 F.2d 171 containing a suggestion that the action be reheard en banc having been filed herein by counsel for the respondent, and a poll of the judges in regular active service having been taken and there being no majority in favor thereof,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is DENIED.

OAKES, Circuit Judge (with whom Judge MESKILL concurs):

I dissent from the denial of rehearing en banc. Expressing no opinion on the merits, it seems to me that this case raises sufficiently important questions of administrative law and the role of the courts therein, of general applicability, to warrant our careful consideration sitting en banc. Even assuming, as the panel opinion persuasively argues, that American Power & Light Co. v. SEC, 329 U.S. 90, 112, 67 S.Ct. 133, 91 L.Ed. 103 (1946), and Butz v. Glover Livestock Commission Co., 411 U.S. 182, 93 S.Ct. 1455, 36 L.Ed.2d 142 (1973), permit the reviewing court to vacate an administrative sanction, which is " 'peculiarly a matter for administrative competence,' " 329 U.S. at 112, 67 S.Ct. at 146, it is difficult to see how the reviewing court may properly substitute its judgment for that of the agency on such a matter. O'Leary v. SEC, 137 U.S.App.D.C. 420, 424 F.2d 908, 911-12, (1970); see K. C. Davis, Administrative Law Treatise § 30.10, at 250-52 (1958). Underlying precepts of administrative law would seem to require a remand for further agency consideration of the sanction if it has previously abused its discretion. I am as intolerant of the agency's delays in this case, and other agencies' in other cases, as the distinguished author of the majority opinion, but I question seriously whether those delays justify taking a leap which has, except for one "sport," Beck v. SEC, 430 F.2d 673 (6th Cir. 1970) (entire sanction set aside), not heretofore been taken, that is, the reviewing court's substituting its own judgment of what the sanction should be for that of the agency. See, e. g. Hanly v. SEC, 415 F.2d 589, 598 (2d Cir. 1969); Marketlines, Inc. v. SEC, 384 F.2d 264, 267 (2d Cir. 1...