Before the

In the Matter of
CFTC Docket No. SD 97-3

On February 11, 2000, the Commission received respondent Eric Zuccarelli's motion for leave to file a reply brief.1 The motion includes both general and specific grounds for the relief Zuccarelli seeks. It notes, for example, that a recent amendment to the Commission's Part 10 Rules allows appealing parties to file a reply brief as a matter of right. It also argues that denying Zuccarelli an opportunity to file a reply brief in this case would amount to a denial of due process because the brief that the Division of Enforcement ("Division") filed includes so many "(un) factual" assertions and "(mis) citations" of law. On February 18, 2000, the Commission received an additional submission that Zuccarelli describes as "a document constituting substantially the reply brief he would file if he is permitted to do so as a matter of right, or if he not permitted to do so as of right, then pursuant to order."

The Division opposes respondent's request for relief. Its February 14, 2000 response to Zuccarelli's motion urges the Commission to follow its established practice of routinely denying requests to file reply briefs on appeal. The Division acknowledges that a recent amendment to the Commission's Part 10 Rules allows appealing parties to file a reply brief as a matter of right. It emphasizes, however, that this case was initiated in March 1997 and that the Commission previously concluded that the amended rules should only apply to proceedings initiated on or after November 18, 1998. 63 Fed. Reg. 55784, 55785 (Oct. 19, 1998). The Division also contends that treating Zuccarelli the same as any other respondent whose case began prior to the effective date of the recent amendments is fully consistent with due process. In a February 22, 2000 submission, the Division urges us to strike the brief Zuccarelli submitted on February 18.

We agree that respondent's reliance on due process principles is misplaced. It is notable that respondent's motion fails to cite any court decision holding that an opportunity to file a reply brief is a general requirement of due process. Moreover, none of the particular facts and circumstances of this case that Zuccarelli emphasizes justifies a conclusion that principles of due process mandate a grant of respondent's motion.2

Nevertheless, we are persuaded that, as a rule, the process of resolving appeals in enforcement matters is best served by permitting appealing parties to file reply briefs. The Division rightly points out that we previously concluded that the recently adopted amendments to Part 10 should only be effective for cases commenced on or after November 18, 1998. Because several of the amendments could be disruptive if applied retroactively, this was and is an appropriate policy in the context of the amendments as a whole. We see little potential for disruption, however, arising out of a more-immediate change in practice regarding reply briefs.

Consequently, we believe granting respondent's motion will best serve the public interest.

Zuccarelli's intent regarding the document the Commission received on February 18, 2000 is somewhat unclear. In order to avoid additional delay in this proceeding, we deem this document respondent's reply brief and accept it for filing in the record. No additional submissions on the issue of the reply brief, including "corrections" to the document received February 18, 2000 will be accepted.


By the Commission (Chairman RAINER and Commissioners HOLUM, SPEARS, NEWSOME and ERICKSON).

Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission

Dated: March 7, 2000

1 Zuccarelli filed an appeal from the Initial Decision on Remand in this matter in October 1999. He filed his appeal brief in December 1999. The Division of Enforcement ("Division") filed its answering brief in February 2000. In essence, Zuccarelli is seeking an opportunity to respond to the arguments the Division raised in its answering brief.

2 The type of hyperbolic attack on an opposing party's responsive brief included in Zuccarelli's motion is a tired tactic counsel too often employ to gain the apparent strategic advantage of being the last party to file its argument before a decisionmaker. This Commission views such attacks as inappropriate, as well as ineffective.