S.E.C. v. Suter, s. 86-3028
| Decision Date | 22 October 1987 |
| Docket Number | 87-1509,Nos. 86-3028,s. 86-3028 |
| Citation | 832 F.2d 988 |
| Parties | Fed. Sec. L. Rep. P 93,513 SECURITIES AND EXCHANGE COMMISSION, Plaintiff-Appellee, and R.D. McCullough, II, Intervening Plaintiff-Appellee, v. Richard W. SUTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Gordon James Arnett, Chicago, Ill., for defendant-appellant. Arnold H. Landis (Intervenor) Law Office of Arnold H. Landis, Chicago, Ill., for intervening-appellee.
Elizabeth Stein, S.E.C., Office of General Counsel Washington, D.C., for plaintiff-appellee.
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
Richard Suter appeals from two orders by the district court in a suit brought against him by the SEC for fraud and other misconduct in the sale of securities, in violation of the Securities Act of 1933, 15 U.S.C. Secs. 77a et seq. Suter has a long history of committing frauds. See, e.g., SEC v. Suter, 732 F.2d 1294 (7th Cir.1984); United States v. Suter, 755 F.2d 523 (7th Cir.1985); McCullough v. Suter, 757 F.2d 142 (7th Cir.1985). In this latest caper, Suter by a nationwide mailing solicited funds to invest in limited partnerships that would buy commodities futures. He did not register the offering, as required by the Securities Act, and having received the funds he failed to invest them, never having created the partnerships. On February 6, 1986, the district court entered a permanent injunction against Suter and at the same time ordered him to account for his receipts from the illegal offering. Suter did not appeal from the February 6 order, nor file within 10 days a motion to alter or amend the judgment under Rule 59(e), which would have tolled the time for appeal. Instead he filed three successive motions to vacate the injunction, all of which were denied, the last on November 7, 1986, and he filed a notice of appeal from the last denial. With that appeal we have consolidated his appeal from a later order, authorizing the SEC to disburse some $33,000 in funds formerly controlled by Suter to the investors in his illegal scheme.
We have no jurisdiction of the first appeal. Ordinarily, the denial of a motion to vacate an injunction would be appealable under section 1292(a)(1) by the express terms of that statute, which authorizes the appeal among other things of interlocutory orders that "refus[e] to dissolve ... injunctions." If, however, the only purpose of the motion was to take a belated appeal from the order entering the injunction, we penetrate through form to substance and treat the appeal from the denial of the motion to vacate as an untimely appeal from the injunction, and dismiss the appeal for lack of jurisdiction. See, e.g., Buckhanon v. Percy, 708 F.2d 1209, 1212 (7th Cir.1983); Charles v. Daley, 799 F.2d 343, 347-48 (7th Cir.1986). This is such a case. Suter's briefs in this court, as well as his filings in the district court, reveal that his only ground for vacating the injunction is that it should never have been entered in the first place. Neither his motions nor his briefs suggest that, even if the injunction was properly entered in the first place, it should now be vacated because of changes in fact or law since its entry.
If the permanent injunction was not a final decision within the meaning of section 1291, then even if Suter forfeited his right to appeal under section 1292(a)(1) from the denial of his last motion to vacate the injunction, maybe he can appeal on the ground that the denial was a final decision appealable under section 1291. We need not decide whether such an argument would have any merit. The entry of the permanent injunction was a final decision; the retention of jurisdiction to provide such further relief as might be necessary to make the injunction effective--further relief illustrated by the disbursement order--did not deprive the permanent injunction of finality. University Life Ins. Co. v. Unimarc Ltd., 699 F.2d 846, 848-49 (7th Cir.1983). The motions to vacate the injunction were efforts to create appellate jurisdiction over the injunction long after the deadline for an appeal had passed.
If, after a final judgment is entered, post-judgment proceedings ensue in the district court, those proceedings are treated for purposes of appeal under section 1291 as a separate lawsuit, and orders entered in them may be appealed if but only if final. King v. Ionization Int'l, Inc., 825 F.2d...
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