Case: 22-11226 Document: 77-1 Page: 1 Date Filed: 08/03/2023
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`NO. 22-11226
`__________________________________
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`United States Court of Appeals for
`the Fifth Circuit
`__________________________________
`SECURITIES AND EXCHANGE COMMISSION,
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`Plaintiff-Appellee,
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`versus
`TIMOTHY BARTON,
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`Defendant-Appellant,
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`
`____________________________
`Appeal from the United States District Court
`for the Northern District of Texas
`USDC No. 3:22-CV-2118
`___________________________
`PETITION FOR PANEL REHEARING
`Date of Decision: June 19, 2023
`Panel: Wiener, Elrod, and Engelhardt
`___________________________
`Michael J. Edney
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue NW
`Washington, DC 20037
`(202) 955-1500
`medney@huntonak.com
`
`
`
`
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`
`
`
`
`NO. 22-11226
`__________________________________
`
`United States Court of Appeals for
`the Fifth Circuit
`__________________________________
`SECURITIES AND EXCHANGE COMMISSION,
`
`Plaintiff-Appellee,
`
`versus
`TIMOTHY BARTON,
`
`Defendant-Appellant,
`
`
`____________________________
`Appeal from the United States District Court
`for the Northern District of Texas
`USDC No. 3:22-CV-2118
`___________________________
`PETITION FOR PANEL REHEARING
`Date of Decision: June 19, 2023
`Panel: Wiener, Elrod, and Engelhardt
`___________________________
`Michael J. Edney
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue NW
`Washington, DC 20037
`(202) 955-1500
`medney@huntonak.com
`
`
`
`
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`Case: 22-11226 Document: 77-1 Page: 2 Date Filed: 08/03/2023
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`TABLE OF CONTENTS
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`TABLE OF CONTENTS ............................................................................ ii
`TABLE OF AUTHORITIES ..................................................................... iii
`INTRODUCTION ....................................................................................... 1
`STATEMENT OF THE ISSUES ................................................................ 5
`STATEMENT OF THE COURSE OF PROCEEDINGS AND
`DISPOSITION OF THE CASE .................................................................. 5
`ARGUMENT AND AUTHORITIES .......................................................... 9
`I. The Panel Decision Conflicts with this Court’s Precedents Holding
`That Orders Authorizing a Receiver to Sell Property Are
`Immediately Appealable. ................................................................ 10
`II. The Panel Decision Also Conflicts with this Court’s Precedent
`Holding That One Panel Cannot Overrule Another. ..................... 15
`CONCLUSION ......................................................................................... 17
`Certificate of Filing and Service .............................................................. 19
`Certificate of Compliance ......................................................................... 20
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`ii
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`Case: 22-11226 Document: 77-1 Page: 3 Date Filed: 08/03/2023
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`TABLE OF AUTHORITIES
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`Page(s)
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`Cases
`In re Bonvillian Marine Serv., Inc.,
`19 F.4th 787 (5th Cir. 2021) ................................................................ 16
`Broussard v. S. Pac. Transp. Co.,
`665 F.2d 1387 (5th Cir. 1982) .......................................................... 1, 16
`Burge v. Parish of St. Tammany,
`187 F.3d 452 (5th Cir. 1999) ........................................................ 2, 9, 15
`Grabowski v. Jackson Cnty. Pub. Defs. Office,
`47 F.3d 1386 (5th Cir. 1995) ................................................................ 16
`Johnson v. Moral,
`843 F.2d 846 (5th Cir. 1988) ................................................................ 16
`Netsphere, Inc. v. Baron,
`703 F.3d 296 (5th Cir. 2012) ............................................................ 7, 11
`Netsphere, Inc. v. Baron,
`799 F.3d 327 (5th Cir. 2015) ........................................................ passim
`Sage v. Cent. R. Co. of Iowa,
`96 U.S. 712 (1877) ................................................................................ 10
`SEC v. Barton,
`72 F.4th 640 (5th Cir. Jun. 28, 2023) .......................................... passim
`SEC v. Barton,
`No. 22-11226, 2023 WL 4060191 (5th Cir. June 19, 2023) .......... 2, 6, 7
`Securities and Exchange Comm’n v. Janvey,
`404 F. App’x 912 (5th Cir. 2010) ................................................. passim
`United States v. “A” Mfg. Co., Inc.,
`541 F.2d 504 (5th Cir. 1976) ........................................................ passim
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`iii
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`United States v. Castro-Alfonso,
`841 F.3d 292 (5th Cir. 2016) ................................................................ 16
`United States v. Dial,
`542 F.3d 1059 (5th Cir. 2008) .............................................................. 16
`United States v. Setser,
`607 F.3d 128 (5th Cir. 2010) ........................................................ 2, 9, 15
`Rules
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`Fifth Circuit Internal Operating Procedure 35 ....................................... 16
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`INTRODUCTION
`By holding that a district court order authorizing a receiver to sell
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`property is not immediately appealable, the panel decision conflicts with
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`three decisions of this Court. United States v. “A” Mfg. Co., Inc., 541 F.2d
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`504 (5th Cir. 1976); see Securities and Exchange Comm’n v. Janvey, 404
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`F. App’x 912, 914 (5th Cir. 2010); Netsphere, Inc. v. Baron, 799 F.3d 327,
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`333-34 (5th Cir. 2015) (hereinafter “Netsphere II”). The panel should
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`grant rehearing, reverse its holding that this Court lacks jurisdiction,
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`and proceed to the merits, in order to avoid this clear conflict with the
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`prior precedents of this Court.
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`Absent reversal through this panel granting rehearing, the panel
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`decision would effectively overrule precedential, published decisions of
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`this Court without involving the en banc Court, in direct conflict with this
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`Court’s general rule that one panel cannot overrule the holding of
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`another panel. Broussard v. S. Pac. Transp. Co., 665 F.2d 1387, 1389
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`(5th Cir. 1982) (collecting cases); Janvey, 404 F. App’x at 914 (applying
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`this rule to reject a Securities and Exchange Commission request for a
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`panel to hold—contrary to prior precedent—that district court orders
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`authorizing a Commission-requested receiver to sell property are not
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`immediately appealable); see also United States v. Setser, 607 F.3d 128,
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`131 (5th Cir. 2010); Burge v. Parish of St. Tammany, 187 F.3d 452, 466
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`(5th Cir. 1999).
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`In this case, the District Court appointed a receiver over nearly all
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`assets connected with the Appellant. Since this panel’s decision, a
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`separate panel of this Court held that the District Court’s appointment
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`of a receiver was in error and vacated it. SEC v. Barton, 72 F.4th 640,
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`645 (5th Cir. Jun. 28, 2023). The issuance of the mandate for that
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`decision is pending.
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`The instant appeal concerns a District Court order—subsequent to
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`the order appointing the Receiver—that authorized the Receiver to sell
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`the Appellant’s personal residence. In dismissing the appeal for lack of
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`jurisdiction, the unpublished panel decision that is the subject of this
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`rehearing petition held that the District Court’s order authorizing the
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`sale of the Appellant’s property “is not a final decision amenable to
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`appellate review, and the collateral order doctrine is not applicable.”
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`SEC v. Barton, No. 22-11226, 2023 WL 4060191, at *1 (5th Cir. June 19,
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`2023) (hereinafter “Op.” at 1, attached as Exhibit A). That holding cannot
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`be reconciled with three prior decisions of this Court, holding that a
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`district court order authorizing a receiver to sell property is immediately
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`appealable. “A” Mfg., 541 F.2d at 506; Janvey, 404 F. App’x at 914
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`(declining SEC request to depart from “A” Manufacturing and to hold
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`that the Court lacked jurisdiction to hear an immediate appeal from an
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`order authorizing a receiver to sell property); Netsphere II, 799 F.3d at
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`333-34 (confirming Circuit precedent that orders authorizing receivers to
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`sell property are immediately appealable final orders).
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`This panel of the Court should grant rehearing to avoid that
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`conflict. When it does so, the panel should proceed to the merits. And
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`the panel should then consider summarily reversing the District Court’s
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`order below, as it was sought by a receiver another panel of this Court
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`has held to be improperly appointed. Barton, 72 F.4th at 648.
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`Simultaneously with the instant petition for panel rehearing, the
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`Appellant has filed a petition for rehearing en banc, which by Circuit rule
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`is first referred to the panel. 5th Cir. I.O.P. 35. Appellant respectfully
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`submits that the panel can and should act on rehearing to avoid the need
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`for the en banc Court to step in in order to ensure the uniformity of this
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`Court’s decisions. The Commission has presented no compelling reason
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`to depart from this Court’s precedents making orders authorizing
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`property sales by receivers immediately appealable. It could have
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`sought, but did not seek, initial hearing en banc in some sustained and
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`serious effort to reverse these precedents. And this case—where the
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`District Court allowed a Government-sought Receiver to kick a defendant
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`out of his only home before a drop of discovery is shared, much less any
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`trial demonstrating liability for anything—is hardly compelling occasion
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`for departing from this Court’s long-standing rule. The particular order
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`under appeal, if anything, is glaring justification for why there must be
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`immediate appellate jurisdiction over such orders.
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`STATEMENT OF THE ISSUES
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`1. Whether the panel should reverse its decision that district
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`court orders authorizing a receiver to sell property are immediately
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`appealable to avoid a direct conflict with this Court’s prior precedent in
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`United States v. “A” Manufacturing Co., Inc., 541 F.2d 504 (5th Cir.
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`1976); Securities and Exchange Comm’n v. Janvey, 404 F. App’x 912, 914
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`(5th Cir. 2010); and Netsphere, Inc. v. Baron, 799 F.3d 327, 333-34 (5th
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`Cir. 2015)?
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`2. Whether the panel lacked authority to depart from this
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`Court’s precedent on the above issue without first involving the en banc
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`Court?
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`STATEMENT OF THE COURSE OF PROCEEDINGS AND
`DISPOSITION OF THE CASE
`This case began when the United States Securities and Exchange
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`Commission filed a civil suit against the Appellant, accusing him of
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`securities fraud. Days later, the Commission asked the District Court to
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`appoint a receiver over all entities directly or indirectly controlled by the
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`Appellant. On October 18, 2022, the District Court granted the
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`Commission’s request. That same day, the Receiver removed the
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`Appellant from his company offices and seized all commercial assets
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`controlled by him. On the third day of the receivership, the Receiver also
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`removed the Appellant
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`from his
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`family home—a 4 bedroom,
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`approximately 3,840 square foot, house located at 4107 Rock Creek Drive
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`in Dallas, Texas.
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`Appellant then sought an emergency court order to block the
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`Receiver from removing him from his home and to clarify that the house
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`was outside the Receiver’s control. The District Court denied the request
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`twenty-five minutes later, without explanation. At the Receiver’s
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`request, the District Court then authorized the Receiver to sell the
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`Appellant’s home, and the Appellant appealed from that order. See SEC
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`v. Barton, No. 22-11226, Record Excerpts of Appellant Timothy Barton
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`at 21-25 (5th Cir. Mar. 6, 2023) (ECF No. 41).
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`The Commission did not move to dismiss the appeal, but argued in
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`its merits brief that the court of appeals lacks jurisdiction over it. See
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`id., Brief of Appellee at 11-13 (5th Cir. Mar. 29, 2023) (ECF No. 45). Prior
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`to setting the case for oral argument, a panel of this Court dismissed the
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`appeal for lack of jurisdiction in a June 19, 2023, unpublished opinion.
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`Op. at 1. The panel held that the order authorizing the Receiver to sell
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`the Appellant’s home “is not a final decision amenable to appellate
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`review,” explaining that Congress made only orders appointing receivers
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`and certain other receiver-related orders immediately appealable. Id.
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`(citing the statutory section providing special appellate jurisdiction over
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`certain receiver-related orders, 28 U.S.C. § 1292(a)(2)).
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`Ten days later, on June 28, 2023, a separate panel of this Court in
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`a published opinion held that the District Court erred in appointing the
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`receiver and vacated the order doing so. Barton, 72 F.4th at 648. This
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`Court explained that the District Court did not hold the Commission to
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`the high standards for appointing a receiver, including the requirements
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`to establish “1) a clear necessity to protect the defrauded investors’
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`interest in property, 2) legal and less drastic equitable remedies are
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`inadequate, and 3) the benefits of receivership outweigh the burdens on
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`the affected parties.” Id. at 645 (citing Netsphere, Inc. v. Baron, 703 F.3d
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`296, 305 (5th Cir. 2012) (hereinafter “Netsphere I”)). These high
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`standards must be enforced—before the Government seizes a citizen’s
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`property through a receivership—because a “[r]eceivership is ‘an
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`extraordinary remedy that should be employed with the utmost
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`caution.’” Id.
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`The Court further held that the District Court erred by placing
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`virtually all of the Appellant’s assets into receivership, without a specific
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`inquiry into what property was the proceeds of alleged securities fraud
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`in the underlying case. Id. at 647. At oral argument, the panel
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`repeatedly questioned the Commission about having seized and
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`attempted to sell the Appellant’s home, without any effort to trace
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`affected proceeds into that asset. SEC v. Barton, No. 22-11132,
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`Transcription of Oral Argument at 25:15-26:7 (5th Cir. May 1, 2023).
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`Before this Court held that the entire receivership was invalid, the
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`District Court issued orders approving the sale of several other of the
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`properties associated with the Appellant’s commercial real estate
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`business. The Appellant appealed three of those orders. In a case
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`involving the sale of the Appellant’s realty interest in two real estate
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`projects, the Court did not dismiss the appeal and has set the case for
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`oral argument in October 2023. SEC v. Barton, No. 22-11242, Oral
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`Argument Notice (5th Cir. July 26, 2023) (ECF No. 63).
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`In two other appeals that had not been briefed as of the time of the
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`instant panel’s decision, the Commission moved to dismiss the appeals
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`for lack of subject matter jurisdiction, relying exclusively on the panel
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`decision that is the subject of this rehearing petition. A motions panel of
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`this Court granted those motions on July 17, 2023, without further
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`explanation. SEC v. Barton, No. 23-10515 (5th Cir. July 17, 2023) (ECF
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`No. 48-2); SEC v. Barton, No. 23-10516 (5th Cir. July 17, 2023) (ECF No.
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`36-1).
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`ARGUMENT AND AUTHORITIES
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`The panel decision directly conflicts with prior opinions of this
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`Court—two of which are published and precedential—that orders
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`authorizing a receiver to sell property are immediately appealable. “A”
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`Mfg., 541 F.2d at 506; see Janvey, 404 F. App’x at 914; Netsphere II, 799
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`F.3d at 333-34. Because there has been no intervening contrary decision
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`by the Supreme Court or this Court sitting en banc, the panel lacked
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`authority to hold that there was no jurisdiction over an immediate appeal
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`of an order authorizing a receiver to sell property. Janvey, 404 F. App’x
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`at 914 (rejecting Commission request to a panel of this Court to overrule
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`“A” Manufacturing and to hold that orders authorizing SEC-requested
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`receivers to sell property are not immediately appealable, explaining that
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`only the en banc Court could do so); see also Setser, 607 F.3d at 131;
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`Burge, 187 F.3d at 466.
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`The panel should: (i) grant rehearing; (ii) recognize its lack of
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`authority to enter a holding contrary to prior Circuit precedent and
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`reverse its holding that this Court lacks jurisdiction; and (iii) either
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`summarily vacate the decision below in light of this Court’s intervening
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`decision that the Receiver seeking authority for the sale was invalidly
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`appointed or schedule this matter for oral argument on the merits.
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`I.
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`The Panel Decision Conflicts with this Court’s Precedents
`Holding That Orders Authorizing a Receiver to Sell
`Property Are Immediately Appealable.
`Nearly 150 years ago, the Supreme Court of the United States set
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`forth a general rule that “a decree confirming a sale . . . may be appealed
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`from” without awaiting a final judgment in the entire underlying case.
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`Sage v. Cent. R. Co. of Iowa, 96 U.S. 712, 714 (1877). In 1976, this Court
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`held that an order authorizing a sale of real property by a receiver is no
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`exception to this principle and is immediately appealable even as the
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`underlying case continues. “A” Mfg., 541 F.2d at 506. And the Court has
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`reaffirmed that holding twice, once in 2010 and again in 2015. Janvey,
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`404 F. App’x at 914 (holding that an order authorizing a receiver to sell
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`property is immediately appealable); Netsphere II, 799 F.3d at 333-34.
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`The Court’s latest precedential decision on this topic, carefully
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`preserved and reaffirmed this Court’s long-standing rule that orders
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`authorizing a receiver to sell property are immediately appealable.
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`Netsphere II, 799 F.3d at 333-34.1 The Court explained that the special
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`appellate rules for other receivership orders do not alter that principle.
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`Id. In doing so, the Court in Netsphere II clarified that “A”
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`Manufacturing’s holding did not arise from Section 1292(a)(2) of Title
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`28, the provision of the United States Code directed specifically at the
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`appealability of certain orders related to a receivership. Id. To quote the
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`Court:
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`orders
`holding—that
`“A” Manufacturing’s
`confirming a sale are immediately appealable—
`was based on its interpretation of three cases that,
`pursuant to an entirely different jurisprudential
`line
`[than those
`interpreting 28 U.S.C. §
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`1 There are two key historical panel decisions under the title of Netsphere,
`Inc. v. Baron. The first decision concerned an appeal to an order
`appointing a receiver, and set forth the standards a party seeking a
`receivership must meet to obtain one. Netsphere I, 703 F.3d at 301, 305-
`06. A separate panel of this Court relied on the Netsphere I decision to
`overturn the order appointing the receiver in this matter. Barton, 72
`F.4th at 645-46. The second Netsphere decision involved an appeal to an
`order approving the fees charged by the receiver. Netsphere II, 799 F.3d
`at 330. In that decision, the Court considered the array of interlocutory
`orders regarding a receiver’s activities that are immediately appealable,
`holding that the fee order was not one of them. Id. at 331-32.
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`1292(a)(2), regarding appeals from certain orders
`regarding receivers], had held that orders
`confirming sales were immediately appealable.
`Netsphere II, 799 F.3d at 333. That separate line of cases, “‘spanning a
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`century, clearly establish[es] the rule that an interlocutory order
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`commanding a sale, and one confirming a sale are appealable.’” Id. at
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`333 n. 35 (quoting “A” Mfg., 541 F.2d at 506).
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`Indeed, the cases the Court relied upon in “A” Manufacturing
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`stem from an interpretation of Section 1291 of Title 28 and other
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`doctrines of appellate jurisdiction that regard orders confirming sales
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`as “final decisions” that are immediately appealable. See “A” Mfg., 541
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`F.2d at 506. And the principle applies both inside and outside the
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`receivership context.
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`In other words, orders confirming sales of real property having
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`nothing to do with a receiver also would be immediately appealable.
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`Nothing about the additional statutory authority to seek immediate
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`appeal of certain orders regarding a receivership changes that general
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`principle when a receiver is involved. By clarifying that the rule that
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`receiver sale orders are appealable is grounded outside the special
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`statutory provision for appealing orders relating to a receivership, the
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`Court was able to classify as dicta the “A” Manufacturing panel’s
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`reference to Section 1292(a)(2) as one of the bases for that decision.
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`Id. at 334. And it was able to adopt a narrower interpretation of
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`Section 1292(a)(2) in denying an immediate appellate right for receiver-
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`related orders other than sale orders. Id. at 333.
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`The application of this Court’s long-standing rule to the instant
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`appeal shows its importance. Here, the District Court, with little
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`analysis, seized the Appellant’s family home, gave it to a third-party
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`receiver, and authorized the Receiver to permanently sell it to a third
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`party. The District Court did so before engaging in any meaningful
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`analysis of the mandatory standards for appointing a receiver. Barton,
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`72 F.4th at 646. And it did so without determining whether the most
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`routine of Appellant’s personal assets—his only home—were somehow
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`the proceeds of allegedly illegal activity. Id. at 647. Indeed, at oral
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`argument, members of this Court pointed to the seizure of the Appellant’s
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`home as the lead symptom of uncareful decisionmaking regarding
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`whether there should be a receivership and what assets should be
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`included in it. SEC v. Barton, No. 22-11132, Transcription of Oral
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`Argument at 27:6-28:16 (5th Cir. May 1, 2023).
`13
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`Absent an immediate appeal, the District Court’s order authorizing
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`the sale of the Appellant’s home could have sent that asset off to a third
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`party, had a new family move into the home, and presented a transaction
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`that would have been very difficult to unwind at the end of what could
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`have been a lengthy case. There is a permanence to allowing a sale of
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`real property to close and, for that reason, this Court hears immediate
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`appeals from lower court orders authorizing them, whether they occur
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`inside or outside the context of a receivership.
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`The panel should grant rehearing to correct to avoid the above-
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`explained conflict with this Court’s prior precedents. Now that another
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`panel of this Court has reversed the District Court’s order appointing a
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`receiver, the panel also should summarily reverse the District Court’s
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`order authorizing the sale of the Appellant’s home. Barton, 72 F.4th at
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`648. While it is possible the Commission may seek the appointment of
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`another receiver over a yet unknown scope of assets on remand to the
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`District Court, that possibility does not salvage the efforts of the invalidly
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`appointed receiver to seize and to sell the Appellant’s home. In the
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`alternative, the panel should set the instant appeal for oral argument on
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`the merits.
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`II. The Panel Decision Also Conflicts with this Court’s
`Precedent Holding That One Panel Cannot Overrule
`Another.
`If not corrected, the panel’s decision would be assuming the
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`exclusive power of the en banc Court to reverse prior panel decisions of
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`this Court, which is in direct conflict with this Court’s precedent. This
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`Court has repeatedly held that a panel may not rule contrary to a prior
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`panel decision of this Court absent an intervening decision by the
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`Supreme Court or by this Court sitting en banc. Netsphere II, 799 F.3d
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`at 333-34; Setser, 607 F.3d at 131; Burge, 187 F.3d at 466.
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`When a panel of this Court confronted a prior Commission request
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`to overturn “A” Manufacturing and hold that orders authorizing sales of
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`property by receivers are not immediately appealable, that panel
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`correctly held that it lacked the authority to do so and that such a request
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`may only be made to the en banc Court. Janvey, 404 F. App’x at 914. As
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`the Court explained: “It is well-established that a panel does not have the
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`authority to overrule a previous panel’s decision absent an intervening,
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`contrary, or superseding decision by this court, sitting en banc, or by the
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`Supreme Court.” Id. (citing Setser, 607 F.3d at 131).
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`15
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`Case: 22-11226 Document: 77-1 Page: 20 Date Filed: 08/03/2023
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`This principle has been repeated
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`in numerous published,
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`precedential decisions of this Court. See, e.g., United States v. Castro-
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`Alfonso, 841 F.3d 292, 297 (5th Cir. 2016) (“The Fifth Circuit rule of
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`orderliness dictates that ‘absent an intervening change in the law, such
`
`as by a statutory amendment, or the Supreme Court, or our en banc
`
`court,” a panel cannot overrule another panel’s decision.’”); United States
`
`v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008) (“our rule of orderliness
`
`directs that ‘one panel of this court cannot overrule the decision of
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`another panel.’”); Grabowski v. Jackson Cnty. Pub. Defs. Office, 47 F.3d
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`1386, 1397 (5th Cir. 1995), on reh’g en banc, 79 F.3d 478 (5th Cir. 1996)
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`(“As this court has repeatedly held, one panel cannot overrule another
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`panel, even if one disagrees with the decision.”); Johnson v. Moral, 843
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`F.2d 846, 848 (5th Cir. 1988), on reh’g sub nom., 876 F.2d 477 (5th Cir.
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`1989) (“No rule is more firmly settled in our Circuit than that ‘no
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`panel...can overrule a decision previously made by another.’”); Broussard,
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`665 F.2d at 1389 (“The general rule in this Circuit is that one panel
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`cannot overrule another panel.”).
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`Importantly, this “rule is strict and rigidly applied.” In re
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`Bonvillian Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021). The
`16
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`Case: 22-11226 Document: 77-1 Page: 21 Date Filed: 08/03/2023
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`panel should reverse its prior decision to honor the en banc Court’s
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`exclusive authority to overrule panel precedent.
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`CONCLUSION
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`If allowed to stand, the panel opinion effectively would overrule
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`longstanding Fifth Circuit precedent establishing that district court
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`orders authorizing receivers to sell property are immediately appealable
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`to this Court. “A” Mfg., 541 F.2d at 506; see Janvey, 404 F. App’x at 914;
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`Netsphere II, 799 F.3d at 333-34. The panel should grant rehearing, hold
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`that there is subject matter jurisdiction over the instant appeal, and
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`avoid the conflict with Circuit precedent. The panel should then either
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`(i) summarily reverse the decision below in light of this Court’s
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`intervening ruling that the Receiver was invalidly appointed, Barton, 72
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`F.4th at 648; or (ii) schedule the case for oral argument on the merits.
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`Case: 22-11226 Document: 77-1 Page: 22 Date Filed: 08/03/2023
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`Respectfully submitted,
`HUNTON ANDREWS KURTH LLP
`/s/ Michael J. Edney
`
`Michael J. Edney
`HUNTON ANDREWS KURTH LLP
`2200 Pennsylvania Avenue NW
`Washington, DC 20037
`(202) 955-1500
`medney@huntonak.com
`
`
`ATTORNEY FOR APPELLANT
`TIMOTHY LYNCH BARTON
`
`
`Date: August 13, 2023
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`Case: 22-11226 Document: 77-1 Page: 23 Date Filed: 08/03/2023
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`Certificate of Filing and Service
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`I hereby certify that on August 13, 2023, this document was filed
`and served in PDF format using the United States Court of Appeals for
`the Fifth Circuit’s CM/ECF system upon all counsel of record, as follows:
`
`Ezekiel L. Hill
`hillez@sec.gov
`Securities and Exchange Commission
`100 F St., N.E.
`Washington, DC 20549
`
`Keefe M. Bernstein
`bernsteink@sec.gov
`James E. Etri
`etrij@sec.gov
`David B. Reece
`reeced@sec.gov
`Securities and Exchange Commission
`801 Cherry St., Suite 1900
`Fort Worth, TX 76102
`
`Counsel for the Securities and Exchange Commission
`
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`In addition, I further certify that this electronic filing is an exact
`copy of the paper document and any privacy redactions have been made.
`This filing has been scanned for viruses and has been found to be free of
`viruses.
`
`
`/s/ Michael J. Edney
`
`
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`19
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`Case: 22-11226 Document: 77-1 Page: 24 Date Filed: 08/03/2023
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`Certificate of Compliance
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`I hereby certify that this document complies with the word limit of
`Fed. R. App. P. 32(a)(7) because, excluding the parts of the document
`exempted by Fed. R. App. P. 32(f), the document contains 3,338 words, as
`calculated using the word processor used to prepare this document,
`Microsoft Word for Microsoft 365. I also certify that this document
`complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and
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`the type-style requirements of Fed. R. App. P. 32(a)(6) because this
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`document has been prepared in a proportionally spaced typeface using
`Microsoft Word in 14-point Century Schoolbook font.
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`
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`/s/ Michael J. Edney
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`
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`20
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`Case: 22-11226 Document: 77-1 Page: 25 Date Filed: 08/03/2023
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`
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`Exhibit A
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`
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`Case: 22-11226 Document: 74-1 Page: 1 Date Filed: 06/19/2023Case: 22-11226 Document: 77-1 Page: 26 Date Filed: 08/03/2023
`
`United States Court of Appeals
`for the Fifth Circuit
`____________
`
`No. 22-11226
`____________
`
`Securities and Exchange Commission,
`
`
`United States Court of Appeals
`Fifth Circuit
`
`FILED
`June 19, 2023
`
`Lyle W. Cayce
`Clerk
`Plaintiff—Appellee,
`
`
`
`
`Timothy Barton,
`
`
`versus
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`Defendant—Appellant.
`______________________________
`
`
`
`Appeal from the United States District Court
`for the Northern District of Texas
`USDC No. 3:22-CV-2118
`______________________________
`
`
`Before Wiener, Elrod, and Engelhardt, Circuit Judges.
`Per Curiam:*
`
`Defendant-Appellant Timothy Barton appeals the district court’s
`approval of the sale of receivership property (the “Sale Order”)—
`specifically, the sale of his home for the purpose of recouping Barton’s
`unlawful gains from defrauded investors. We dismiss this appeal for lack of
`jurisdiction. The Sale Order is not a final decision amenable to appellate
`review, and the collateral order doctrine is not applicable.
`
`_____________________
`
`* This opinion is not designated for publication. See 5th Cir. R. 47.5.
`
`
`
`
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`Case: 22-11226 Document: 74-1 Page: 2 Date Filed: 06/19/2023Case: 22-11226 Document: 77-1 Page: 27 Date Filed: 08/03/2023
`
`No. 22-11226
`
`We have jurisdiction to review only a limited set of interlocutory
`appeals. Complaint of Ingram Towing Co., 59 F.3d 513, 515 (5th Cir. 1995)
`(“Interlocutory appellate jurisdiction is the exception rather than the rule.”).
`Congress has expressly set forth categories of receivership-related orders
`that may be appealed immediately. 28 U.S.C. § 1292(a)(2) (granting
`jurisdiction over appeals from “[i]nterlocutory orders appointing receivers,
`or refusing orders to wind up receiverships or to take steps to accomplish the
`purposes thereof, such as directing sales or other disposals of property”).
`The Sale Order is not for purposes of “winding up” the instant receivership;
`it was instead “entered in the normal course of a receivership.” Netsphere,
`Inc. v. Baron, 799 F.3d 327, 331-32 (5th Cir. 2015). Neither was the Sale Order
`issued in the context of a foreclosure, which is a final order amenable to
`appeal. See Citibank, N.A. v. Data Lease Fin. Corp., 645 F.2d 333, 337 (5th
`Cir. 1981).
`
`Barton contends that the collateral order doctrine applies here. We
`disagree. As the collateral order inquiry is premised on entire categories of
`orders, we consider generally the sale of real property in the ordinary course
`of a receivership. See Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 107
`(2009). Having weighed the relevant factors, we decline to permit appeals for
`such orders. Id. Indeed, Congress went out of its way to permit immediate
`appeals from a limited set of orders related to receiverships, including the
`appointment of a receiver in the first place. 28 U.S.C. § 1292(a)(2). As was
`the case here, the initial decision to place property under receivership was
`reviewed by the district court and reviewed again on appeal. The parties have
`engag
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