WASHINGTON U.S. Solicitor General Donald Verrilli has until May 20 to respond to a request from Miami, Fla.'s former budget director that the Supreme Court hear his argument that he should be shielded from a Securities and Exchange Commission lawsuit.
The date was set after Verrilli earlier this month requested more time to prepare a reply to Michael Boudreaux's petition for a writ of certiorari, which was filed with the nation's highest court in March.
The Supreme Court is Boudreaux's last chance to avoid being tried for his role in making alleged materially false and misleading statements, as well as omissions, about interfund transfers designed to cover up a growing fund deficit and get more favorable bond ratings for offerings in May, July and December 2009. The alleged misinformation was contained in bond documents as well as the city's fiscal year 2007 and 2008 comprehensive annual financial reports, the SEC charged in its lawsuit against Boudreaux and Miami.
The commission is seeking financial penalties against Boudreaux, as well as a permanent injunction barring him from committing further securities laws violations.
Lawyers are closely watching the case, believing it could have implications for other public officials in the municipal securities market who are worried that their ordinary duties could leave them exposed to SEC fraud charges.
Attorneys for Boudreaux claim he is entitled to "qualified immunity" from the lawsuit, which was filed against him and the city in July 2013. The legal concept of qualified immunity protects government officials performing discretionary functions when their actions do not clearly violate someone's established statutory or constitutional rights.
The case is pending before the U.S. District Court for the Southern District of Florida in Miami, but has been on pause in that court for more than a year because of the appeals process related to Boudreaux's argument that he is immune from the charges.
The district court dismissed Boudreaux's claim of qualified immunity, saying the SEC is seeking monetary penalties that would be paid to the U.S. Treasury rather than traditional civil damages, as would be sought in private litigation. The U.S. Court of Appeals for the Eleventh Circuit in Atlanta declined to overturn the lower court's decision.
Legal experts have said the Supreme Court is unlikely to grant cert because it typically does so only in very weighty matters or when two different circuit courts of appeal have reached conflicting decisions over an issue.
The appeals court's decision was the first on the question of whether a municipal official has qualified immunity from SEC charges over actions taken within the scope of his employment. Under Supreme Court rules, four of the nine justices must vote to accept a case.
