UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
______________________________ : BARRY WEISS : : CFTC Docket No. 89-R280 v. : : ORDER MONEX INTERNATIONAL, LTD., : et al. : ______________________________:
On June 1, 1989, complainant brought a reparations complaint pursuant to Section 14 of the Commodity Exchange Act ("CEA"), 7 U.S.C. § 18 (1994), seeking recovery for financial injury sustained as a result of a leverage contract transaction entered into with respondents. After proceedings before two administrative law judges ("ALJs") caused by our remand, on June 1, 1994, we affirmed the second ALJ decision awarding complainant $296,874.46. (Weiss v. Monex Int'l Ltd., [1992-1994 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,094 (CFTC June 1, 1994).) Respondent Monex appealed this decision to the United States Court of Appeals for the Ninth Circuit, which affirmed our order. (Monex Int'l, Ltd. v. CFTC, 83 F.3d 1130 (9th Cir. 1996).) On or about May 24, 1996, complainant filed an application in the court of appeals for attorney's fees of $12,400, the amount of expenses incurred for legal work performed at the federal appellate stage of these proceedings. Complainant relied on Section 14(e), which provides that, "[i]f the appellee prevails, he shall be allowed a reasonable attorney's fee to be taxed and collected as part of his costs." (§ 14(e), 7 U.S.C. § 18(e)(1994).) The court of appeals denied complainant's application for failure to comply with Ninth Circuit Rule 28-2.3. (Monex Int'l, Ltd. v. CFTC, No. 94-70330 (9th Cir. Aug. 9, 1996).)
On October 29, 1996, complainant filed a motion with this Commission pursuant to Section 14(e) of the Commodity Exchange Act, asking for an award of the same attorney's fees requested from the court of appeals. Respondents oppose this request, arguing that (1) we lack jurisdiction to review the decision of the court of appeals; and (2) even if complainant's motion were properly before us, we lack the authority to award attorney's fees.
Section 14(e) explains the procedure for seeking review of a Commission decision from courts of appeals. As such, its provision for allowing "reasonable attorney's fee[s]" authorizes only courts of appeals--not the Commission--to make such an award. The decision of the court of appeals is binding and conclusive on us. A request for attorney's fees under Section 14(e) "must comply with the procedures established for the submission of costs," which include local procedures. (Dohmen-Ramirez v. CFTC, 846 F.2d 1200, 1202 (9th Cir. 1988).)
The request for attorney's fees is DENIED.
IT IS SO ORDERED.
By the Commission (Chairperson BORN, and Commissioners DIAL, TULL, HOLUM, and SPEARS).
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: April 25, 1997