[00:00:08] Speaker 00: Case number 16, that's 1149, Bernard E. Young, Petitioner versus Securities and Exchange Commission. [00:00:15] Speaker 00: Gwen Dang, from the Lucas TRI, Mr. Young for petitioner and Ms. [00:00:18] Speaker 00: Mishra for respondent. [00:01:03] Speaker 01: Good morning. [00:01:05] Speaker 01: Good morning and may it please the court. [00:01:07] Speaker 01: I am Min Nguyen Dang for the court-appointed amicus. [00:01:11] Speaker 01: There are two fundamental errors in Mr. Young's SEC proceedings. [00:01:14] Speaker 01: There was a Lucia error. [00:01:16] Speaker 01: The ALJ was not constitutionally appointed. [00:01:19] Speaker 01: And there was a Kokesh error. [00:01:20] Speaker 01: The discourse on penalty exceeded the statute of limitations. [00:01:23] Speaker 01: This court has the jurisdiction to correct those errors, and it should. [00:01:29] Speaker 01: I'll start with the jurisdictional question. [00:01:31] Speaker 01: Mr. Young made a reasonable error that he fixed right away. [00:01:35] Speaker 01: This court has already held that the review provisions at issue here can be equitably told, and that was in the New York Republican State Committee case. [00:01:43] Speaker 06: Now. [00:01:44] Speaker 06: Well, that opinion didn't face Rule 26B as interpreted in a new pursuit of court. [00:01:52] Speaker 01: That's right, Your Honor, that case did not consider that. [00:01:55] Speaker 01: But in your Tresutical, what was important was that Rule 26B1 is very clear in not allowing any exceptions. [00:02:02] Speaker 01: Rule 26B2, which is an issue here, does allow exceptions. [00:02:06] Speaker 01: And so the two read together, Rule 26B2 and a statutory scheme where equitable tolling is presumed and has not been rebutted by a clear statement by Congress, [00:02:16] Speaker 01: It seems that in these circumstances, this court should allow what Congress intended. [00:02:21] Speaker 06: What are you doing with the language at the end, well, end of the opening paragraph of 26b, but the court may not extend the time to file and there are two [00:02:38] Speaker 01: Yes, Your Honor, and at the end of B2, it says that there can be exception if the statute so allows it. [00:02:45] Speaker 01: And so that simply instructs this court to look to the relevant statute. [00:02:48] Speaker 01: And the relevant statute here, as this court has decided in New York Republican State Committee, can be equitably told. [00:02:54] Speaker 01: So in the circumstances, reading the rule and the statute together, equitable tolling is allowed. [00:03:02] Speaker 01: And given that, echo-petrolling should be allowed here. [00:03:05] Speaker 01: In this case, Mr. Young actually filed a petition on time. [00:03:10] Speaker 01: He served the SEC on time. [00:03:11] Speaker 03: But he didn't file it in any court or competent jurisdiction on time. [00:03:16] Speaker 01: That's right, Your Honor. [00:03:17] Speaker 01: He was acting per se. [00:03:18] Speaker 01: He called the clerk to confirm, and he made a very understandable mistake. [00:03:22] Speaker 01: The two courts' names are very similar. [00:03:24] Speaker 01: In fact, the statutes at issue here don't even clearly [00:03:28] Speaker 01: refer to this court. [00:03:29] Speaker 01: If you look on page 1A of the Green Brief, the review provision for the Securities Act refers to this court as the United States Court of Appeals for the District of Columbia. [00:03:38] Speaker 01: It doesn't say DC Circuit. [00:03:40] Speaker 01: Instead, it gives a name that is very similar to the United States Court of Appeals. [00:03:43] Speaker 01: That's right, Your Honor. [00:03:44] Speaker 05: And where did he file his? [00:03:46] Speaker 01: I'm sorry? [00:03:47] Speaker 01: In the District of Columbia Court of Appeals, Your Honor. [00:03:49] Speaker 05: Right. [00:03:50] Speaker 05: Not the United States Court of Appeals. [00:03:51] Speaker 01: That's right, Your Honor. [00:03:52] Speaker 01: You and I and other lawyers understand that United States means a federal court. [00:03:55] Speaker 01: But Mr. Young was pro se. [00:03:57] Speaker 01: He did not know that. [00:03:58] Speaker 01: And it was a reasonable thing for a pro se person not to understand. [00:04:01] Speaker 03: But how does that comport with the long-standing rules of equitable tolling? [00:04:08] Speaker 03: This was not something that was external to Mr. Young. [00:04:13] Speaker 01: We believe, Your Honor, that there are three conditions under Holland v. Florida for equitable tolling. [00:04:17] Speaker 01: Due diligence, which Mr. Young very clearly demonstrated. [00:04:21] Speaker 01: Lack of prejudice, which, again, the government does not contest. [00:04:23] Speaker 01: And as you say, extraordinary circumstances. [00:04:25] Speaker 01: And we believe that that factor is met here. [00:04:29] Speaker 01: The extraordinary circumstances is the conflation of a statute that is unclear and two courts whose names are very similar and, Mr. Young says, [00:04:40] Speaker 01: He contacted the clerk and whatever conversation we had with that clerk of the DC Court of Appeals did not correct his misimpression that the DC Court of Appeals was the correct court to file in. [00:04:50] Speaker 03: The decision that he got from the SEC, did it say anything about where to file? [00:04:56] Speaker 01: No, Your Honor, that is not in the decision itself. [00:05:00] Speaker 01: And as I said, if you look to the statute, the statute is somewhat unclear. [00:05:04] Speaker 01: It gives this court a name that this court has not had since 1948. [00:05:07] Speaker 01: So in these circumstances, it is very similar to the Burnett case. [00:05:11] Speaker 01: In that case, a petitioner filed in the wrong court, in a state court, which for very understandable reasons, ordinarily under the statute, state courts have jurisdiction over the claims. [00:05:23] Speaker 01: But in that particular case, there was an Ohio state statute that prevented those claims from being filed in that particular court. [00:05:30] Speaker 01: When eight days later, the plaintiff in that case filed in federal court, [00:05:34] Speaker 01: The United States Supreme Court said that that situation warranted equitable tolling. [00:05:38] Speaker 01: And again, the key thing was that there was no prejudice, the parties were diligent, and given the confusion, the understandable confusion that a represented party made, the Supreme Court held there's equitable tolling. [00:05:50] Speaker 01: That case is on all fours with this situation here, and we believe that that means that this court should exercise its discretion and equitably toll the statute by one day. [00:05:59] Speaker 03: But we haven't held that equitable tolling works differently for unrepresented parties than it does for represented parties. [00:06:06] Speaker 01: Not expressly no, Your Honor, but you have recognized that there is some latitude given to unrepresented parties. [00:06:12] Speaker 01: For example, in this Wahlberg case, this Court has indicated that being pro se by itself, with nothing more, could be a reasonable grounds not to have raised an issue before the SEC. [00:06:23] Speaker 01: That was dictum, though, right? [00:06:24] Speaker 01: That's right, Your Honor. [00:06:25] Speaker 01: The court did not reach it. [00:06:27] Speaker 01: But it reflects, Your Honor, the long-standing understanding that some procedural latitude should be given to parties who are not lawyers, who do not understand the way that lawyers understand the distinction between a United States court and not a United States court. [00:06:43] Speaker 01: The mistake that Mr. Yeung made was very understandable. [00:06:46] Speaker 01: And given that there was no prejudice, the government has not claimed prejudice, given that Mr. Yeung acted diligently, equitable tolling is warranted. [00:06:56] Speaker 01: Moving to the merits, on the Lucia issue, there is no question that the ALJ in this case was not constitutionally appointed. [00:07:04] Speaker 01: The government does not dispute this. [00:07:06] Speaker 01: So the only question is if this court can give Mr. Young relief. [00:07:09] Speaker 01: Now, a Lucia error is a structural and constitutional error that sounds in separation of powers. [00:07:15] Speaker 01: And the Supreme Court has said that that is the type of error that courts should correct. [00:07:20] Speaker 01: Further, it was reasonable for Mr. Young, who was acting pro se before the SEC, not to raise this novel constitutional argument in his petition to the SEC. [00:07:29] Speaker 01: At the time, it was two years away from the first SEC decision addressing the Lucia issue. [00:07:36] Speaker 01: It was not until the SEC decision in Lucia, actually, that it was even known how ALJs were appointed and that they, in fact, were not properly appointed. [00:07:44] Speaker 01: And it, of course, was many years from the Supreme Court's decision in Lucia itself. [00:07:48] Speaker 01: Further, [00:07:50] Speaker 01: Lucia represented a fundamental change in the law. [00:07:54] Speaker 01: Prior to Lucia, there were two plausible interpretations of the Freytag case. [00:07:59] Speaker 01: And the interpretation that this court endorsed in the Landry case was that ALJs, FDIC ALJs in that case, but similar to SEC ALJs, were not inferior officers and therefore were not subject to the appointments clause. [00:08:13] Speaker 01: Lucia made the resolution of the question beyond doubt. [00:08:16] Speaker 01: So there is, at this stage, nothing for the court to consider, because the Supreme Court has already said that the SECALJ who presided over Mr. Young's hearing was unconstitutionally appointed. [00:08:29] Speaker 01: Third, or second, on the Kokesh issue, the disgorgement here, the disgorgement sanction imposed against Mr. Young, exceeds, or reaches conduct that exceeds the five year statute of limitations. [00:08:41] Speaker 01: Now, Mr. Young did not raise this issue before the SEC either, but the SEC expressly ruled on this question. [00:08:48] Speaker 01: If you look at page 198 of the Joint Appendix, the SEC said that Section 2462 of the Statute of Limitations does not apply to discourse when it orders. [00:08:59] Speaker 01: So it decided it and is now teed up for this court to decide. [00:09:03] Speaker 01: Given that it is clear that the statute of limitations applies in this case, and it is clear that the discretion order reaches conduct that is outside the statute of limitations, at the very least, this court should remand so that that section can be properly calculated. [00:09:22] Speaker 01: For these reasons, we ask that the court grant Mr. Young's petition, vacate, and remand the SEC's decision. [00:09:28] Speaker 03: All right. [00:09:29] Speaker 03: We'll give you a couple minutes on the book. [00:09:30] Speaker 01: Thank you. [00:09:41] Speaker 04: May it please the Court, my name is Bernard Young, the Appellant Pro Sec. [00:09:45] Speaker 04: Forgive my nervousness, I haven't done this before, as you can probably imagine. [00:09:49] Speaker 04: Over the course of 14 years, Alan Stanford and four other executives perpetrated one of the worst financial crimes in history. [00:09:56] Speaker 04: It's undisputed that there was a well-hidden pattern of lies, active concealment of the activities, and outright theft. [00:10:02] Speaker 04: At the heart of this crime was fraud, deception, and the falsification of records. [00:10:07] Speaker 04: For two years at the end of Stanford's scheme, I served as the chief compliance officer for the North American Group of Companies, and was one of the many people who was lied to and manipulated. [00:10:18] Speaker 04: During this time, I asked for and received information from the perpetrators, but was repeatedly misled and deceived, as were others, including the SEC and FINRA. [00:10:28] Speaker 04: Three and a half years after the unraveling of the scheme, I was charged by the NCC with various violations of various security rules. [00:10:36] Speaker 04: For example, they misquoted or mischaracterized the roadshow and stated that I was reckless in conducting the roadshow because the purpose in their mind was for me to promote the soundness, quote unquote, of the bank. [00:10:53] Speaker 04: A clear review of the record shows that I never used those words and a clear review of the record shows what the intention of the brochure was. [00:11:02] Speaker 04: They also stated that I was negligent and reckless in approving the marketing materials, although they know and the record shows I had no ability to approve any document issued by the bank. [00:11:13] Speaker 04: My purpose in approving that was for use, approving the material based on my understanding of the facts. [00:11:20] Speaker 04: They also stated that I was negligent and reckless in the training of financial advisors, but two things are important here. [00:11:25] Speaker 04: They said I was reckless and negligent in training the advisors because I failed to inform them that I did not know the contents of the underlying portfolio or did not verify the portfolio. [00:11:35] Speaker 04: Two facts arise here as a result of reviewing the record. [00:11:38] Speaker 04: Number one, they didn't have any witness that testified that I actually trained a financial advisor. [00:11:43] Speaker 04: No financial advisor testified that I trained him. [00:11:46] Speaker 04: And number two, the verification of the underlying portfolio is not required under current statutes, laws, and regulations. [00:11:55] Speaker 04: And as a reminder to this court, the bank that we're talking about was an offshore bank that was regulated by a sovereign regulator [00:12:02] Speaker 04: and had audited financials by a duly vetted and approved accounting firm. [00:12:08] Speaker 04: Another allegation they make is they talk about Madoff. [00:12:10] Speaker 04: They bring up Madoff. [00:12:11] Speaker 04: And as you're aware, the timing of the SEC's raid against Stanford coincided very closely with that of Madoff. [00:12:18] Speaker 04: One of the things that I approved in December of 2008 was Madoff talking points that were authored by the president of the bank and approved by the Stanford legal department. [00:12:29] Speaker 04: Those talking points talked about the exposure that the bank did not have and compared the bank's exposure to what Madoff had. [00:12:37] Speaker 04: This was authored, like I said, by the president of the bank. [00:12:41] Speaker 04: And this confirmed all of the representations made to me during my conversation with the Antiguan regulator less than two weeks prior to this communication. [00:12:54] Speaker 04: I spent 19 years as a regulator. [00:12:57] Speaker 04: I know how to do my job. [00:12:58] Speaker 04: I know how to do due diligence. [00:13:01] Speaker 04: I know how to do compliance. [00:13:04] Speaker 04: I was responsible for oversight of FINRA's examinations and firms in the state of Texas. [00:13:13] Speaker 04: As a result of this experience, one of the things they taught you was to document everything that you did. [00:13:19] Speaker 04: and I documented my files. [00:13:21] Speaker 04: But it just seems interesting that of the only three files missing on the SEC's CAIT file index are my three due diligence files. [00:13:29] Speaker 04: To this day, I have not seen those files. [00:13:32] Speaker 04: I was not allowed to see those files. [00:13:33] Speaker 04: I have not seen those files in preparation to my defense. [00:13:37] Speaker 04: These were critical exculpatory files that were preserved as part of the record. [00:13:44] Speaker 04: The record reflects I did exactly what I was trained to do [00:13:47] Speaker 04: and exactly what I would have done as a regulator, including, but not limited to, talking to the actual regulator face-to-face in a meeting like would be like me going to marriage apparel and asking about Stanford International Bank. [00:14:01] Speaker 04: In summary, the SEC is attempting to hold me accountable for the sophisticated criminal activities of Alan Stanford and his accomplices. [00:14:08] Speaker 04: These are the same individuals who concealed their activity for 14 years from the SEC, FINRA, and others. [00:14:15] Speaker 04: Five of the perpetrators have faced criminal prosecution and have been found guilty or pled guilty. [00:14:21] Speaker 04: The final participant, the Antigua regulator, is in U.S. [00:14:24] Speaker 04: custody in Houston away in trial. [00:14:27] Speaker 04: I urge you to read the entire transcript of the trial. [00:14:30] Speaker 04: It will become clear that the flawed SEC decision is wholly unsupported by the evidence in the record and not based on facts. [00:14:37] Speaker 04: Like the SEC and FINRA, I did my job as best I could when confronted with obstruction, lies, and willful concealment. [00:14:44] Speaker 04: As the FBI testified on my behalf at trial, the nature of the fraud, including collusion by the Antigua regulator and the accounting firm, was so carefully orchestrated that it was undetectable. [00:14:57] Speaker 04: Finally, it's an inconvenient truth for the SEC that I was in no better position to uncover the fraud than they. [00:15:03] Speaker 04: I respectfully request this court use its wisdom and discernment and vacate the SEC's decision as it is unsupported by the record or evidence in this case. [00:15:14] Speaker 04: Or at the very least, we're going to have a proceeding before the U.S. [00:15:17] Speaker 04: District Court or a validly appointed DOJ. [00:15:21] Speaker 03: Thank you. [00:15:43] Speaker 02: May it please the court, Dina Mishra for the Securities and Exchange Commission. [00:15:47] Speaker 02: Mr. Young was the chief compliance officer of the main U.S. [00:15:49] Speaker 02: sales arm for the multi-billion dollar Stanford Ponzi scheme fraud. [00:15:53] Speaker 02: The record from 26 witnesses and well over 300 exhibits shows he exploited his regulatory background for pay to instill false trust in American investors to their great loss, all while deflecting scrutiny despite mounting red flags and knowing he didn't know what he claimed to you about the fraudulent bank. [00:16:08] Speaker 05: Could you speak up a little? [00:16:09] Speaker 02: Sure, I'm sorry, Your Honor. [00:16:10] Speaker 05: And slow down just a little bit. [00:16:12] Speaker 02: Absolutely, Your Honor. [00:16:13] Speaker 02: This Court should adhere to the statutes and precedent that require rejecting this petition. [00:16:18] Speaker 02: Turning to the jurisdiction issue this Court ordered briefed, we're happy to answer any questions with respect to that. [00:16:24] Speaker 06: Well, you assert nutraceutical and 24B, but it seems to me the key language of 24B [00:16:35] Speaker 06: the key language you rely on is the court may not extend the time to file than the various things, which include a petition for review. [00:16:45] Speaker 06: But as some courts have observed, rather obviously, there's a difference between extending the time to file and applying equitable tolling. [00:17:00] Speaker 06: 26B does not seem to apply to equitable tolling, and that's clearly the case in nutraceutical. [00:17:08] Speaker 02: In nutraceutical, the part of the nutraceutical that's most, excuse me, the part of nutraceutical that is most dispositive here is when it talks about how rules in the mandatory camp are not susceptible of equitable tolling, and in nutraceutical there was only a rule, but here there is a statute. [00:17:23] Speaker 06: It didn't have an equitable tolling issue in front of it. [00:17:27] Speaker 06: All it had was a request [00:17:30] Speaker 06: for a petition to extend the time to filing, which is different. [00:17:36] Speaker 02: I believe Nutraceutical said the quotas rules in the mandatory camp are not susceptible of the approach here, and it described that approach as equitable tolling elsewhere in the opinion, but regardless. [00:17:48] Speaker 06: There's one passage where there's a reference to equitable tolling. [00:17:53] Speaker 06: That's completely unnecessary to the decision of a court. [00:17:58] Speaker 02: We would understand a lot of the Supreme Court's case law to talk about statutes in particular, because nutraceutical involved a rule, not a statute. [00:18:06] Speaker 02: And here we have statutes that, by their express terms, make the filing in such court within 60 days mandatory. [00:18:12] Speaker 06: Well, that takes you back to New York Republican State Party. [00:18:17] Speaker 02: Well, the portion of New York State Republican Party that talks about whether equitable toning would be available in appropriate circumstances was not part of the holding as expressly stated in New York State Republican Party. [00:18:28] Speaker 06: Well, how do you say that? [00:18:29] Speaker 06: I mean, the court went out of its way to [00:18:32] Speaker 06: find that equitable tolling could apply. [00:18:35] Speaker 06: Sure. [00:18:35] Speaker 06: Then it said when there was an unexcued four-year delay, it didn't apply. [00:18:40] Speaker 06: Hardly a great surprise. [00:18:42] Speaker 02: So our understanding is based in part on the court's statement, we also hold that such challenges must be brought in this court within 60 days, and there are no grounds for exception in this case, which stated what the court understood. [00:18:54] Speaker 06: Isn't the operative phrase there, in this case, four years? [00:18:58] Speaker 02: But because it's not necessary to the result to reject on the equitable tolling standard whether it actually met the equitable tolling standard. [00:19:05] Speaker 06: Well, your claim is a war of jurisdiction. [00:19:08] Speaker 06: And can the court under Steele Company even get to the question of the particular facts until it has decided that some set of facts might be relevant? [00:19:21] Speaker 02: So this court has some case law that actually goes both ways on this. [00:19:26] Speaker 02: There is opinion, actually I believe it's Kramer and Shalabi, that is some of the older cases that suggest that this court actually could dispose of this issue. [00:19:36] Speaker 06: Patients before Steele Company? [00:19:37] Speaker 02: No, they're after Steel Company. [00:19:39] Speaker 02: I believe they are also even after Sinochem. [00:19:41] Speaker 02: That said, Your Honor, we don't believe that that's necessary here, because we believe that even if the statute is not jurisdictional, it is at least mandatory, because there is a statute which is even greater than what there was in nutraceutical, and nutraceutical emphasized that a statute would be much more likely to be found jurisdictional. [00:19:58] Speaker 02: And the terms of this statute are expressly mandatory. [00:20:02] Speaker 06: We have the language of New York Republican State Committee. [00:20:07] Speaker 02: Yes, Your Honor, but there is also the express holding of this court in domestic securities with respect to the exact same, essentially the exact same statutory language in domestic securities in Judge Santel's opinion from much earlier. [00:20:19] Speaker 02: So it was actually held that failure to file a timely petition deprives this court of subject matter jurisdiction. [00:20:25] Speaker 02: And we understand that reasoning to survive Arbaugh because it is exactly the kind of reasoning Arbaugh talked about as being something that goes to the court's power to hear the case. [00:20:35] Speaker 02: In addition, Your Honor, we would point out that this, the Supreme Court has said in Benrique and in Nutraceutical and a number of others, that if the rule is at least mandatory, then it would foreclose equitable tolling. [00:20:49] Speaker 02: We understand, or at least equitable exceptions, et cetera. [00:20:52] Speaker 02: And we think that regardless of all of that, here there was no basis for equitable tolling because it did not meet the requirements. [00:21:01] Speaker 05: Are you saying it makes no difference whether the statute is jurisdictional as opposed to simply a mandatory case management? [00:21:08] Speaker 02: What we're saying is that after Arbaugh and after the more recent Supreme Court cases like New Jersey DeGaul, if the statute is at least mandatory, it should be understood to foreclose equitable tolling. [00:21:19] Speaker 02: But regardless, we think that this Court already held this Exchange Act provision to be jurisdictional in domestic securities. [00:21:26] Speaker 05: Let's go back to the question I asked you. [00:21:28] Speaker 05: If it's not jurisdictional, but it is mandatory, that is no different result than if it is jurisdictional. [00:21:34] Speaker 05: Is that your position? [00:21:35] Speaker 02: Our understanding of the Supreme Court case law is that, Your Honor. [00:21:43] Speaker 02: I'd also like to clarify just one consideration with respect to the equitable tolling standard. [00:21:49] Speaker 02: The statement was made by Amicus that lack of prejudice is a factor. [00:21:52] Speaker 02: It's not one of the two factors under the Supreme Court's approach. [00:21:55] Speaker 02: And in the nominee, it clarified that lack of prejudice does not supplant the two factors. [00:22:01] Speaker 02: It might be a consideration if the court were to decide whether it was going to exercise its equitable discretion, but it's not actually a factor. [00:22:09] Speaker 02: If this court has no further questions, we'll rest. [00:22:11] Speaker 05: Talk about the statute of limitations question that the amicus raised, please. [00:22:20] Speaker 02: Talk about it generally? [00:22:21] Speaker 05: Well, determine what the government's position is with respect to that at this point. [00:22:26] Speaker 02: Sure. [00:22:26] Speaker 02: So our understanding, and to clarify a misconception there as well, is that this was not only not raised, but the Commission did not pass on it. [00:22:34] Speaker 02: And specifically the portion of the Commission's opinion that is pointed to, we explained in our brief, actually refers to a different non-Section 2462 issue that was raised by Mr. Young in his reply brief. [00:22:45] Speaker 02: At least that's how we understand it. [00:22:47] Speaker 05: The position on the argument of amicus is something not before, is that correct? [00:22:52] Speaker 02: Correct, we think it's foreclosed by this, what's holding in KPMG, etc. [00:22:59] Speaker 06: Yeah, but the cases where when the agency addresses an issue as it did here, the court forgives the court [00:23:11] Speaker 06: petitioner from having failed to raise it. [00:23:15] Speaker 02: We understand that, Your Honor. [00:23:17] Speaker 02: We're not actually discussing that. [00:23:19] Speaker 02: We're talking about how this wasn't actually the issue passed upon by the Commission. [00:23:23] Speaker 06: Yeah, but the Commission actually addressed this issue. [00:23:28] Speaker 02: Our understanding, Your Honor, is that if the Commission's opinion refers to it as being something Mr. Young argued, the point that he argued was not this one. [00:23:36] Speaker 06: Did not the language of the Commission [00:23:41] Speaker 06: cover this issue. [00:23:43] Speaker 02: To be clear, Your Honor, we understand this Court's opinion in Zacharias to foreclose understanding the Commission's analysis on broader issues, the other statute of limitations issues that Mr. Young did preserve, to actually extend to this new disgorgement amount statute of limitations issue that Amicus has presented. [00:24:01] Speaker 02: And we would say in Zacharias, a distinction was made between that kind of amount versus overall eligibility for disgorgement, Section 2462. [00:24:13] Speaker 02: And so we would understand this court in Zacharias to already determine that that kind of thing would not be sufficient to preserve it. [00:24:22] Speaker 02: And so the commission's addressing a non-section 2462 argument about his total salary amount for purposes of measuring disgorgement would not actually preserve some question about under section 2462 how much should be taken out because of the statute of limitations. [00:24:43] Speaker ?: Any other questions? [00:24:46] Speaker 03: All right. [00:24:47] Speaker 03: I don't believe we have any other questions. [00:24:49] Speaker 03: Do you have any concluding remarks? [00:24:52] Speaker 02: Well, I'd first just ask the Court, if it's possible, I'd just make just a few clarifications on some of the statements that were made that were slightly inaccurate. [00:25:02] Speaker 02: With respect, or a little bit to clarify some things for the Court, on Mr. Young's presentation, I would just note that Mr. Young's description of, with respect to whether he promoted the soundness of the bank, [00:25:15] Speaker 02: That's something that our brief addresses, but especially when there's testimony that Mr. Young invoked his 19-year regulatory experience in order to convince the advisors that he had, in fact, done due diligence that would lead to that result, and the express statement that was testified to by one [00:25:35] Speaker 02: individual was also that he would stake his 19-year reputation on what he knew about the bank, including about its soundness. [00:25:43] Speaker 02: There's also an email in the record that goes to how financial advisors understood it. [00:25:48] Speaker 02: And so we've cited to those things in our brief. [00:25:51] Speaker 02: We don't think there's much else necessary to clarify in that point that I would just like to make there. [00:25:55] Speaker 02: Thank you. [00:25:56] Speaker 03: Thank you. [00:25:59] Speaker 03: I think Council for Amicus had [00:26:04] Speaker 03: A couple minutes left. [00:26:06] Speaker 03: We'll give you two minutes. [00:26:07] Speaker 01: Thank you, Your Honor. [00:26:11] Speaker 01: Just two points, Your Honors. [00:26:13] Speaker 01: First, equitable tolling exists to prevent injustices. [00:26:17] Speaker 01: Although Congress can foreclose equitable tolling, it is presumed that it does not, and it must say so clearly when it chooses to. [00:26:23] Speaker 01: This court correctly held in New York Republican State Committee [00:26:27] Speaker 01: that the review provisions at issue here can be equitably told. [00:26:30] Speaker 01: And domestic securities, the case that the government cites, is not to the contrary. [00:26:34] Speaker 01: Because even though that court does say something about jurisdictional, it then goes on to consider whether or not there might be an exception in that case for lack of notice. [00:26:41] Speaker 01: That is an equitable exception. [00:26:43] Speaker 01: It does not appear in the statute. [00:26:44] Speaker 01: So if that was available, which domestic security says was available, it must mean that when domestic securities use the term jurisdictional, it did not use it in the strict sense that the government is advocating for here. [00:26:58] Speaker 01: Second, on the Kokesh issue, the government presents a very strange reading of the decision. [00:27:04] Speaker 01: The decision says, the statute of limitations does not apply to the imposition of equitable remedial sanctions [00:27:11] Speaker 01: such as orders of disgorgement. [00:27:13] Speaker 01: And then it cites for that proposition timber vest. [00:27:15] Speaker 01: And the parenthetical to that says, explaining that industry bars, cease and desist orders, and disgorgement are equitable remedies that are not subject to section 2462. [00:27:23] Speaker 01: So as Your Honor recognized, even though, yes, Mr. Young did not press this issue before the SEC, the SEC clearly passed on it. [00:27:32] Speaker 01: And so this court can reach it. [00:27:33] Speaker 01: Thank you, Your Honor. [00:27:36] Speaker 03: Thank you. [00:27:37] Speaker 03: And Mr. Windang, you were appointed by the court to present our arguments as amicus curata, and we appreciate your service. [00:27:46] Speaker 01: Thank you, Your Honor.