Xumanii International Holdings Corp. v. U.S. Securities & Exchange Commission

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

XUMANII INTERNATIONAL No. 14-73103
HOLDINGS CORP., a Nevada corporation,

Petitioner,
MEMORANDUM*
v.

U.S. SECURITIES & EXCHANGE
COMMISSION,

Respondent.

On Petition for Review of an Order of the
Securities & Exchange Commission

Argued and Submitted October 19, 2016
Stanford, California

Before: CALLAHAN, HURWITZ, and OWENS, Circuit Judges.

Xumanii International Holdings Corp. (“Xumanii”) petitions for review of an

order of the Securities and Exchange Commission (“SEC”) suspending trading in

Xumanii’s stock for ten days. We dismiss the petition in part and deny it in part.

1. Xumanii did not exhaust its claims before the SEC. An SEC rule, 17

*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
C.F.R. § 201.550(a), provides for post-deprivation review of trading suspensions.

But, Xumanii did not avail itself of this process, and thus failed to exhaust the non-

constitutional claims raised in its petition for review. Because the exhaustion

requirement in 15 U.S.C. § 78y(c)(1) is jurisdictional, Sacks v. SEC, 648 F.3d 945,

950 (9th Cir. 2011), we dismiss Xumanii’s petition for review insofar as it raises

non-constitutional claims.

2. Xumanii also contends that it was denied due process of law because it

was not provided a pre-suspension hearing. Assuming without deciding that

§ 78y(c)(1) does not require exhaustion of this constitutional challenge, we hold that

Xumanii’s due process rights were adequately protected by the availability of a

prompt post-deprivation review of the trading suspension. See Mathews v. Eldridge,

424 U.S. 319, 334–35 (1976). We deny Xumanii’s petition to the extent it asserts

constitutional claims.

PETITION DISMISSED IN PART AND DENIED IN PART.