Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1987)

MEMORANDUM^**

The New York Stock Exchange (NYSE) sanctioned Wallace E. Lin for misconduct while he was employed at Prudential-Bache Securities, Inc. and for refusing to comply with NYSE requests for information. The Securities and Exchange Commission affirmed the NYSE sanctions, and Lin now appeals the SEC order. We affirm.

Lin first argues that the SEC Order requires reversal because the evidence shows that the two affidavits which formed the basis of the charges were false. When this court reviews an order of the SEC, " [t]he findings of the Commission as to the facts, if supported by substantial evidence, are conclusive." 15 U.S.C. § 78y(a) (4) (1988). Lin's only basis for claiming that the affidavits were false is his own assertion to that effect. The Commission compared Lin's version of the facts with that of the Leungs and chose to accept the Leungs' version. The Commission's findings of fact are supported by substantial evidence, and we will not reverse them.

Lin argues that he was denied the right to confront the evidence against him in the New York Stock Exchange proceeding and so was denied due process. He asserts that a California court order, which stayed arbitration in a proceeding between Lin and Prudential, also stayed the NYSE's investigation and excused him from participating in the hearing. The California stay order was directed solely at an arbitration proceeding involving Lin and Prudential; the NYSE was not a party to that proceeding before the California court and so was not affected by the stay order. The NYSE informed Lin of this fact. Lin was notified of the NYSE hearing and was given a full opportunity to attend and confront the evidence presented against him. Where Lin chose to rely on his own interpretation of the stay order and refused to avail himself of the opportunity to confront the evidence against him, he cannot now complain that he was denied due process.

Lin next argues that the NYSE withheld evidence from him and released the evidence to him only one day before the NYSE Committee for Review met to hear his appeal. On October 7, 1987, the NYSE notified Lin that his request for rehearing would be considered on November 19, 1987. The record shows that on October 20, 1987, Lin's attorney forwarded to the NYSE a copy of a letter from Lin which included a request for a copy of the evidence used at the hearing. On November 13, 1987, knowing that the hearing on his request was scheduled for November 19, Lin sent a second request for the evidence, via regular mail. The NYSE received that letter on November 17, 1987 and immediately sent the requested evidence to Lin via overnight mail.

While the NYSE did not respond promptly to Lin's October 20 request, this failure did not constitute a denial of due process. Lin was notified of the Hearing Panel decision on September 8, 1987. His attorney responded with a request for rehearing on September 23, 1987, but did not request documents. On October 7, the NYSE notified Lin of the November 19 hearing date. Lin waited until October 20 to send a request for documents, and then did not follow up on that request until November 13, knowing that the hearing was scheduled for November 19. Further, had Lin chosen to attend the September 3 hearing or participate in the investigation, he would have seen the evidence presented. The NYSE's delay in responding to his request for the evidence did not deny him due process.

Lin claims that he was denied an impartial forum because the SEC was acting on behalf of Merrill Lynch and Prudential to harass him. Lin provides no evidence for this assertion and it merits no further discussion. Lin asserts that the SEC was disqualified to adjudicate his appeal because it was a defendant in a civil suit filed by Lin. The SEC was not disqualified because of Lin's suit against it. See United States v. Studley, 783 F.2d 934, 940 (9th Cir. 1986) ("A judge is not disqualified by a litigant's suit or threatened suit against him.").

Lin argues that the SEC willfully removed "crucial documents" and evidence from the record. Lin asserts that the SEC removed from the record exhibits filed in support of his December 31, 1987 affidavit. Lin has provided no evidence that these exhibits were ever submitted with the December 31, 1987 affidavit. The affidavit itself makes no mention of supporting exhibits. In the Motion submitted with the December 31, 1987 affidavit, Lin states that he is attaching his affidavit, a copy of his November 13, 1987 Memorandum with attachments, and a transcript of the meeting of the Committee for Review. The November 13 Memorandum states that the attachments are Lin's letters of October 5, 1987 and May 20, 1987, all of which were included in the record. Lin has thus provided no evidence that any additional exhibits were ever submitted with the December 31, 1987 affidavit. Moreover, we have considered these documents, and even assuming their existence as part of the record, they do not show that the Commission's findings were unsupported by substantial evidence.

Other claims were briefed but none merit discussion.

AFFIRMED.