805 F. 2d 1037 - Van Alen v. L Seith

This matter is before the Court for consideration of petitioner Van Alen's motions to proceed in forma pauperis, to waive the bond required of the Commodity Futures Trading Commission and to dismiss the Commission as a respondent. The Commission has responded in opposition to the motion to waive bond and further moves this Court to dismiss the appeal.

Petitioner seeks review of the Commission's order of July 26, 1986, which upheld the administrative law judge's determination that, in violation of 7 U.S.C. Secs. 6(b) and 6(o), she fraudulently induced Seith and Mott not to close their discretionary commodity account with Van Alen. The Commission further concluded that Van Alen's employer, Chicago Grain and Financial Futures Company violated certain sections of the Commodity Exchange Act. Joint and several liability was imposed on Van Alen and Chicago Grain in the amount of $7,926.45 plus interest.

Pursuant to 7 U.S.C. Sec. 18(e), any order of the Commission shall be reviewable on petition of any party aggrieved thereby. An appeal shall not be effective unless within 30 days from and after the date of the order the appellant files with the clerk a bond in double the amount of the reparation awarded against the appellant conditioned upon the payment of the judgment entered by the court. Id. The respondent has moved to dismiss this appeal because Van Alen has not posted the statutory bond and there is no provision for the waiver thereof. Failure to post the statutory bond deprives this Court of jurisdiction. Kesserich v. Commodities Futures Trading Commission, 684 F.2d 88 (D.C.Cir.1982); Myron v. Martin, 670 F.2d 49 (5th Cir.1982); but see Sarahoff v. Stone, 638 F.2d 90, 92-93 (9th Cir.1980).

It is ORDERED that petitioner's motion to proceed in forma pauperis, for waiver of bond and to dismiss the Commodity Futures Trading Commission as respondents are denied and the respondent's motion to dismiss is granted.

The appeal is hereby dismissed.