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McKinely Complaint

McKinely Complaint

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Published by: Judicial Watch, Inc. on Aug 07, 2012
Copyright:Attribution Non-commercial

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10/01/2013

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA
 VERN McKINLEY, )20745 Ashburn Station Place )Ashburn, Virginia 20147, ))Plaintiff, ) Civil Action No.)v. ))COMMODITY FUTURES )TRADING COMMISSION, )Three Lafayette Centre )1155 21st Street, N.W. )Washington, DC 20581, ))and ))SECURITIES AND EXCHANGE )COMMISSION, )100 F Street, N.E. )Washington, DC 20549, ))Defendants. )___________________________________ )
COMPLAINT
 Plaintiff Vern McKinley brings this action against Defendants Commodity Futures
Trading Commission (“CFTC”) and Securities and Exchange Commission (“SEC”)
to compelcompliance with the Freedom of Information Act, 5 U.S.C. § 552 (
FOIA
). As grounds therefor,Plaintiff alleges as follows:
JURISDICTION AND VENUE
1. The Court has jurisdiction over this action pursuant to 5 U.S.C. § 552(a)(4)(B) and28 U.S.C. § 1331.2. Venue is proper in this district pursuant to 28 U.S.C. § 1391(e).
Case 1:12-cv-01176 Document 1 Filed 07/18/12 Page 1 of 5
 
PARTIES
3. Plaintiff Vern McKinley is a private citizen residing in Ashburn, Virginia. He isa former employee of the Board of Governors of the Federal Reserve, the Federal DepositInsurance Corporation, the Resolution Trust Corporation, and the Office of Thrift Supervision.Since 1999, he has served as a consultant, legal advisor and regulatory policy expert on financialsector issues for governments in the United States, China, Nigeria, Indonesia, Ukraine,Kazakhstan, Latvia, the Philippines, Yugoslavia (now Montenegro), Kenya, Eastern CaribbeanCurrency Union, Belarus, Morocco, Sudan, Libya, Afghanistan, Armenia, Kosovo, and Tajikistan.In addition, Plaintiff is a Research Fellow at the Independent Institute and author of therecently-published book 
Financing Failure: A Century of Bailouts
.4. Defendant CFTC is an agency of the U.S. Government and is headquartered atThree Lafayette Centre, 1155 21st Street, N.W., Washington, DC 20581. Defendant CFTC haspossession, custody, and control of records to which Plaintiff seeks access.5. Defendant SEC is an agency of the U.S. Government and is headquartered at 100 FStreet, NE., Washington, DC 20549. Defendant SEC has possession, custody, and control of records to which Plaintiff seeks access.
STATEMENT OF FACTS
 6.
On October 31, 2011, the Financial Stability Oversight Council (“FSOC”) met to
discuss developments regarding MF Global. At this meeting, Gary Gensler, chairman of theCFTC, and Mary Schapiro, chairman of the SEC, provided updates on the conditions of MFGlobal.7. On April 24, 2012, Plaintiff submitted FOIA requests to the CFTC and the SEC, byfacsimile and certified mail, seeking access to
Case 1:12-cv-01176 Document 1 Filed 07/18/12 Page 2 of 5
 
3copies of any and all records concerning this update of MF Global,the discussion of the implications for the broader financial system,and any follow up contact and discussions on public statements.Such records include, but are not limited to, [] detailed meetingminutes, meeting notes, supporting memoranda, communications,and electronic messages and attachments.8. The CFTC acknowledged receipt of Pl
aintiff’s request
by letter dated April 25,2012 and assigned the request file number 12-00095-FOIA. The CFTC
’s
acknowledgementletter did not state whether a determination to comply with the request had been made. Nor didthe letter notify Plaintiff of any such determination, the reasons therefor, or the right to appeal anyadverse determination.9. By letter dated April 25, 2012, the SEC acknowledged receiving Pl
aintiff’s request
 on April 24, 2012 and assigned the request tracking number 12-06708-FOIA. The
SEC’s
acknowledgement letter did not state whether a determination to comply with the request had beenmade. Nor did the letter notify Plaintiff of any such determination, the reasons therefor, or theright to appeal any adverse determination.10. On May 18, 2012, the SEC provided Plaintiff with an interim response to hisrequest. It informed Plaintiff that it had located a two-page document and was withholding the
document’s production pursuant to FOIA Exemption 4. Plaintiff subsequently appeal
ed the
SEC’s interim response on June 4, 2012. On June 11, 2012, Plaintiff’s counsel conferred with theSEC. The SEC informed Plaintiff’s counsel tha
t an administrative appeal was not necessarybecause no final determination had been made. Plaintiff therefore withdrew his
administrativeappeal.
 11. Pursuant to 5 U.S.C. § 552(a)(6)(A)(i), the CFTC and the SEC were required todetermine whether to co
mply with Plaintiff’s request
s within twenty (20) working days after theirreceipt of the requests and to notify Plaintiff immediately of their determination, the reasons
Case 1:12-cv-01176 Document 1 Filed 07/18/12 Page 3 of 5

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