WASHINGTON - Former Miami budget director Michael Boudreaux is appealing to the U.S. Supreme Court after a federal appeals court decided not to reconsider its decision to disqualify his immunity from a Securities and Exchange Commission lawsuit.
Boudreaux's lawyers made their intentions plain in a motion filed with the U.S. Court of Appeals for the Eleventh Circuit in Atlanta, asking the appeals court to delay sending the case back to district court for trial until the Supreme Court has had a chance to review it. The Eleventh Circuit decided Dec. 24 to deny Boudreaux's motion for a rehearing before the entire appeals court, a motion the embattled former public official filed after a three-judge panel ruled against him Sept. 5 and upheld the decision of a federal district court in Miami.
Boudreaux's attorneys say that he was entitled to "qualified immunity" from the 2013 lawsuit, which seeks to levy financial penalties against both him and the city in connection with what the SEC alleges was a fraudulent 2009 bond offering. Qualified immunity protects government officials performing discretionary functions when their actions do not clearly violate someone's established statutory or constitutional rights. The district court dismissed Boudreaux's argument, saying the SEC is seeking monetary penalties that would be paid to the U.S. Treasury rather than traditional civil damages. The International Municipal Lawyers Association filed a friend of the court brief in November asking the appeals court to reconsider its decision, to no avail.
Benedict Kuehne, an attorney who represents Boudreaux, told the Eleventh Circuit that the case raises "an important and provocative question of law" which "should be given a complete opportunity for resolution by the Supreme Court." By granting the stay Boudreaux is seeking, the Eleventh Circuit would effectively prevent the district court from exercising jurisdiction over the case and keep the lawsuit paused until the Supreme Court either decides the question or declines to hear the appeal.
Kuehne told the Eleventh Circuit that the district court's decision and the appeals court's affirmation conflict with past appellate and Supreme Court decisions, and is a good candidate for review by the nation's highest court.
"This court's resolution of Boudreaux's qualified immunity appeal presents a question that conflicts with the decisions of the U.S. Supreme Court and other courts of appeals on the same important matter," Kuehne wrote. "The issue represents an important public policy question that is likely to be settled by the Supreme Court, especially since this court's decision represents a departure from the expansive history of qualified immunity in the United States. A stay of mandate is appropriate, limited, and consistent with the interests of justice."
According to the federal court system's website, the Supreme Court accepts between 100-150 cases of the more than 7,000 petitions it receives each year. According to Supreme Court rules, four of the nine justices must vote to accept a case. Both the city of Miami and Boudreaux have denied the SEC's charges. The window originally set by the district court for trial has already passed, as the case has been on hold at the district level since February.