The opinion of the court was delivered by: Lewis A. Kaplan, District Judge.
The Securities and Exchange Commission ("SEC" or the "Commission") applies for enforcement of its order against Orlando Joseph Jett ("Jett"). Jett claims that the Commission's underlying administrative decision was wrong and that the Commission deprived him of due process of law by failing to notify him of the decision, resulting in his failure to file a timely petition for review in the Court of Appeals.
Jett was charged administratively with a variety of securities law violations and defended himself pro se before the Commission. Section 102(d)(1) of the Commission's Rules of Practice provided as follows:
"Representing oneself. When an individual first makes any filing or otherwise appears on his or her own behalf before the Commission or a hearing officer in a proceeding as defined in § 201.101(a), he or she shall file with the Commission, or otherwise state on the record, and keep current, an address at which any notice or other written communication required to be served upon him or her or furnished to him or her may be sent and a telephone number where he or she may be reached during business hours."*fn1 The address designated by Jett was 61 East Eighth Street, Suite 299, New York, New York 10003.*fn2 The official records of the Commission do not indicate that Jett ever informed the Commission that the 61 East Eighth Street location was not his address, or that Jett ever provided the Commission with another address.*fn3 Jett does not claim otherwise. In addition, in October 2003, Jett responded to a fax sent to him at 212-265-8886. His response stated that he subsequently could be reached by fax at 646-349-5208.*fn4
On March 5, 2004, the SEC rendered its Opinion and Order Imposing Remedial Sanctions on Jett.*fn5 The Order provided in pertinent part:
"On the basis of the Commission's opinion issued this day, it is: "ORDERED that Orlando Joseph Jett cease and desist from committing or causing any violations, or future violations, of Section 17(a) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder; and it is further "ORDERED that Orlando Joseph Jett cease and desist from causing any violations, or future violations, of Section 17(a) of the Securities Exchange Act of 1934 and Rule 17a-3 and Rule 17a-5 thereunder; and it is further "ORDERED that Orlando Joseph Jett be, and he hereby is, barred from association with any broker, dealer, member of a national securities exchange, or member of a registered securities association; and it is further "ORDERED that Orlando Joseph Jett disgorge the amount of $8.21 million; and it is further "ORDERED that Orlando Joseph Jett pay a civil money penalty in the amount of $200,000. "Jett's payment of disgorgement and the civil money penalty shall be: (i) made by United States postal money order, certified check, bank cashier's check, or bank money order made payable to the Securities and Exchange Commission, (ii) delivered by hand or courier to the Office of Financial Management, Securities and Exchange Commission, Operations Center, 6432 General Green Way, Stop 0-3, Alexandria, Virginia 22312, within thirty days of the date of this order; and (iii) submitted under cover letter which identifies Jett as the respondent in this proceeding and gives the file number of this proceeding. A copy of the cover letter and check shall be sent to Edwin H. Nordlinger, Deputy Regional Director, Northeast Regional Office, Division of Enforcement, Securities and Exchange Commission, The Woolworth Building, 233 Broadway, New York, New York 10279."
The Commission's Rules of Practice provide that the Secretary of the Commission is to make service of orders and decisions of the Commission.*fn6 With respect to orders or decisions other than orders instituting proceedings, 17 C.F.R. § 201.141(b) provides that service shall be made:
a. In the manner provided for the service of an order instituting proceedings as set forth in 17 C.F.R. § 201.141(a);*fn7
b. By facsimile if the party receiving such notice has agreed in writing to receive facsimile service;*fn8 or
c. In the manner provided for the service of papers by parties to proceedings before the Commission as set forth in 17 C.F.R. § 201.150(c)(1), (2), and (3).*fn9
The Office of the Secretary maintains a tracking system (the "Tracking System") to record the service of all orders and decisions of the Commission.*fn10 The Tracking System records indicate that on March 5, 2004, the Office of the Secretary sent the Opinion and Order to Jett by (1) certified mail, (2) facsimile, and (3) first class mail.*fn11 The mailed copies were sent to the East Eighth Street address and the fax to 646-349-5208.*fn12 If such items had been returned undelivered, that fact would have been noted in the Tracking System, and the returned items would have been placed in the Commission's official records.*fn13 The Tracking System record does not show that either the certified mail or the first class mail sent to Jett were returned by the United States Postal Service as undelivered.*fn14
The copy of the Opinion and Order served on Jett by facsimile was sent to 646-349-5208, and the records of the Commission show that the facsimile was received at that telephone number.*fn15
Although the Opinion and Order was a final order of the Commission, Jett did not petition for review. The Commission seeks enforcement, claiming that Jett has not complied in all respects with the Opinion and Order. Jett resists, arguing that he was deprived of his right to appeal from the Opinion and Order, and seeks ...