UNITED STATES OF AMERICA
COMMODITIES FUTURES TRADING COMMISSION
In the Matter of :
STEPHEN REDDY, et al. CFTC Docket No. 92-19
Gary Bergamo seeks relief from the May 2, 1997 Commission order dismissing his unperfected appeal. Bergamo, through counsel, requests that he be given the opportunity to appeal the decision of the Administrative Law Judge ("ALJ"), which found that he and his co-respondents in the above-captioned matter violated various sections of the Commodity Exchange Act, 7 U.S.C. §§1, et seq., as amended (1994) ("Act"). Bergamo asks permission to file an out-of-time brief and to have the Commission review his appeal on the merits. The Division of Enforcement ("Division") opposes Bergamo's request. For reasons that follow, Bergamo's request is denied.
On November 2, 1995, the ALJ issued an initial decision in this matter. On November 20, 1995, Bergamo filed a timely notice of appeal, but never filed an appeal brief as required by Commission rule 10.102(b), 17 C.F.R.§ 10.102(b) (1998). On May 2, 1997, the Commission dismissed Bergamo's appeal as unperfected. On February 4, 1998, the Commission issued its final opinion and order resolving the appeals of the remaining respondents, thus terminating this matter.
Bergamo claims that it was his understanding that he did not need to file a brief because the arguments raised in appeal briefs filed by respondents Stephen F. Reddy, John W. Sorkvist and Nicholas DeSalvo would be applied to him. This claim is without merit. Commission rules clearly provide that an "appeal shall be perfected through the filing of an appeal brief" and that such a "brief shall be filed within 30 days after filing of the notice of appeal." See Rules 17 C.F.R. §10.102(b)(1) - (2). Nothing in the Commission's rules or precedent remotely suggests that a respondent may be excused from his or her duty to perfect an appeal or may rely on a co-respondent's compliance. Cf. In re Buckwalter, [1986-87 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 23,107 at 32,022 (CFTC June 10, 1986) (Commission struck respondent's appeal brief and dismissed his appeal as unperfected where respondent's brief purported to incorporate by reference all the arguments he had previously raised as well as "briefs, memoranda and appeal briefs" filed by his co-respondents).
Bergamo's plea for relief also is woefully out of time. It was filed two-and-a-half years after he filed his notice of appeal and 11 months after the Commission issued its order dismissing his appeal as unperfected for failure to file his brief. Moreover, it was filed more than two months after the Commission decided the appeals of Bergamo's co-respondents. Bergamo asserts that he never received the May 2, 1997 order dismissing his appeal. Bergamo was served by certified mail with that order at his last address of record, but the document was returned to the Commission unopened. Nevertheless, service was properly effected when the order was deposited in the mail to the address Bergamo had supplied to the Commission.1 Moreover, his apparent failure to receive the order dismissing his appeal in no way excuses his failure to perfect that appeal.
Bergamo also argues that the Commission erred in acting sua sponte to dismiss his appeal. He asserts that rule 10.102(b)(3) provides that a "party" must move for dismissal and that, in the absence of such a motion by the Division, his appeal should not have been dismissed. This argument is also without merit. Rule §10.102(b)(3) does not state that a party "must" move for dismissal. Its permissive language provides that a party "may" move for dismissal. In affording leeway to parties to move for dismissal, the Commission ceded no part of its own jurisdiction to hear and to decide--and when appropriate, to dismiss--cases before it.
Based on the foregoing, Bergamo's request for relief is denied.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners TULL, HOLUM and SPEARS).
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: June 22, 1998
1 The record in this matter reflects that, although Bergamo was initially represented by counsel in the hearing below, counsel filed a motion to withdraw in July 1994, citing difficulty communicating with Bergamo as a reason. The ALJ granted the motion, and both the motion and the ALJ's order indicate that henceforth service was to be effected at the following address:
Gary R. Bergamo
40 Tuckahoe Avenue
Staten Island, NY 10312
This is the same address to which the Commission mailed copies of its May 2, 1997 Order. If Bergamo's service address changed during the course of litigation, it was his responsibility to so notify the Commission.