          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                April 27, 2009
                               No. 08-10088
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

U.S. COMMODITY FUTURES TRADING COMMISSION

                                           Plaintiff-Appellee

v.

GERALD LEO ROGERS, also known as Jay Rogers, also known as Jay Rodgers

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 3:05-CV-416


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
      Gerald Leo Rogers, federal prisoner # 12327-086, appeals the district
court’s grant of summary judgment in favor of the U.S. Commodity Futures and
Exchange Commission (CFTC) in its civil enforcement action. Rogers has filed
a motion to proceed in forma pauperis (IFP) on appeal, challenging the district
court’s certification, pursuant to Baugh v. Taylor, 117 F.3d 197, 199-202 (5th
Cir. 1997), that his appeal was not taken in good faith.



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                 No. 08-10088

      Rogers argues that the district court’s judgment violates the doctrine of
separation of powers because it is the judgment of an Article III court in an
action brought by an Article I agency. This argument, which is unsupported by
authority, is frivolous.
      Next, Rogers contends that the CFTC lacked standing to bring the
enforcement action because it neither alleged nor proved that it had suffered an
injury in fact.   Congress may confer standing on federal agencies to bring
enforcement actions under its statutes.        See Director, Office of Workers’
Compensation Programs v. Newport News Shipbuilding & Dry Dock Co., 514
U.S. 122, 133 (1995). Congress has authorized the CFTC to bring actions in the
district courts of the United States to enjoin acts or practices that violate the
Commodity Futures Act, to enforce compliance with rules and regulations, and
to impose civil penalties. See 7 U.S.C. § 13a-1.
      Rogers, who was also the subject of a civil enforcement action filed by the
Securities and Exchange Commission (SEC), contends that his activities could
not violate both the securities laws and the commodities exchange laws at the
same time. Rogers’s argument as to this issue is entirely conclusory; he cites to
no summary judgment evidence and does not address the substance of the
district court’s detailed analysis. Conclusory allegations are insufficient to
defeat summary judgment. See Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc). To the extent that Rogers is arguing that his activity
was not subject to regulation by the SEC, we do not address the issue as it does
not pertain to the action filed by the CFTC.
      Finally, Rogers argues that the maintenance of actions against him by
both the CFTC and the SEC violates the Double Jeopardy Clause. “Whether a
particular punishment is criminal or civil is, at least initially, a matter of
statutory construction.” Hudson v. United States, 522 U.S. 93, 99 (1997). The
first inquiry is “whether the legislature, in establishing the penalizing
mechanism, indicated either expressly or impliedly a preference for one label or

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the other.” Id. (internal quotation and citation omitted). “[O]nly the clearest
proof will suffice to override legislative intent and transform what has been
denominated a civil remedy into a criminal penalty.”         Id. at 100 (internal
citations and quotation marks omitted).
      Here, the statutes in question expressly provide for civil monetary
penalties. See 7 U.S.C. § 13a-1(d); 15 USC § 77t(d). Rogers has not established
that there is any proof, let alone “the clearest proof,” as required to establish a
violation of the Double Jeopardy Clause. See Hudson, 522 U.S. at 100.
      Rogers has not demonstrated that he will raise a nonfrivolous issue on
appeal.   Accordingly, Rogers’s IFP motion is DENIED and his appeal is
DISMISSED as frivolous. See 5 TH C IR. R. 42.2; Baugh, 117 F.3d at 202 & n.24;
Howard, 707 F.2d at 220.
      The dismissal of Rogers’s appeal as frivolous counts as a strike for
purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383,
387-88 (5th Cir. 1996). Rogers is cautioned that, if he accumulates three strikes
pursuant to § 1915(g), he may not proceed IFP in any civil action or appeal filed
while he is incarcerated or detained in any facility unless he is under imminent
danger of serious physical injury. See § 1915(g).
      IFP DENIED; APPEAL DISMISSED; SANCTION WARNING ISSUED.




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