                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                       Nos. 10-13784 & 10-13811        DECEMBER 5, 2011
                                        Non-Argument Calendar             JOHN LEY
                                      ________________________             CLERK


                                      Agency Docket No. 3-13733
MANUEL P. ASENSIO,

llllllllllllllllllllllllllllllllllllllll                                  Petitioner,

                                                 versus

SECURITIES AND EXCHANGE COMMISSION,

llllllllllllllllllllllllllllllllllllllll                                  Respondent.
                                      ________________________

                              Petitions for Review of a Decision of the
                               Securities and Exchange Commission
                                    ________________________

                                           (December 5, 2011)

Before CARNES, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

         Manuel P. Asensio, proceeding pro se, appeals the Securities and Exchange

Commission’s order dismissing his consolidated appeal of two decisions: (1) a

July 2006 sanction issued by the National Association of Securities Dealers, Inc.,
barring Asensio from associating with any member firm; and (2) an August 2008

decision by the Financial Industry Regulatory Authority, Inc., denying a FINRA

member firm’s application to associate with Asensio despite the bar. The SEC

dismissed the consolidated appeal because Asensio filed for review too late and no

extraordinary circumstances justified extending the filing deadline. Asensio

concedes that he missed the filing deadline but argues that extraordinary

circumstances exist for three reasons: he had “lately discovered evidence”

showing that FINRA executives were biased against him; applying for review at

the SEC would have been “futile;” and the scope of his bar expanded when NASD

merged with the enforcement branch of the New York Stock Exchange.1

                                              I.

       Asensio worked as a financial and operations principal for various

brokerage firms from 1982–2003. All of the firms were members of what is now

FINRA, a self-regulatory organization that was formed on July 26, 2007, when

NASD merged with NYSE’s enforcement branch.

       NASD began investigating Asensio in 2003 to determine whether he had



       1
        Asensio makes several other arguments based on procedural defects, due process, and
the Appointments Clause of the United States Constitution. We do not address those arguments
because they go to the merits of NASD’s bar decision and FINRA’s association decision, and the
merits of those decisions are not before us.

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published misleading research reports about PolyMedica Corporation, Inc. After a

one-day hearing, a NASD Hearing Panel found: (1) Asensio failed to make

required financial disclosures in the PolyMedica reports; (2) the reports made

exaggerated, unwarranted, or misleading claims; and (3) Asensio purposely

impeded NASD’s investigation by refusing to provide information to

investigators. As a sanction for this misconduct, the Hearing Panel barred Asensio

from associating with NASD member firms.

      Asensio appealed that sanction to NASD’s National Adjudicatory Council,

which affirmed the findings and the bar on July 28, 2006. A letter accompanying

NAC’s decision informed Asensio that he had thirty days to file an appeal with the

SEC. Asensio timely filed an appeal but withdrew it a few days later.

      On September 12, 2007, ISI Capital, LLC, a FINRA member firm, filed a

Membership Continuance Application with FINRA seeking permission for

Asensio to associate with it as a general securities representative. FINRA’s NAC

denied the application on August 12, 2008. A letter accompanying the decision

advised ISI and Asensio that they had thirty days to file an appeal with the SEC.

Neither ISI nor Asensio sought review within that time period.

      In December 2009 and January 2010, Asensio wrote letters to the SEC

challenging the propriety of the bar and the ISI decision. With Asensio’s

                                         3
approval, the SEC deemed these letters an application for review. The SEC

dismissed the application on June 17, 2010, finding that Asensio did not timely

file the appeal and that no extraordinary circumstances justified the delay.

Asensio moved for reconsideration, which the SEC denied. This appeal followed.

                                          II.

      The Securities and Exchange Act of 1934 provides that any person

aggrieved by the disciplinary actions of a self-regulatory organization may seek

review of that action by filing an application with the SEC “within thirty days”

after receiving notice of the decision imposing sanctions “or within such longer

period as such appropriate regulatory agency may determine.” 15 U.S.C. §

78s(d)(2). The SEC will not extend that deadline “absent a showing of

extraordinary circumstances,” which “is the exclusive remedy for seeking an

extension of the 30-day period.” 17 C.F.R. § 201.420(b). We will reverse the

SEC’s application of this regulation only if it is “arbitrary, capricious, an abuse of

discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).

      Asensio concedes that he waited three years to file an application for review

of NAC’s decision affirming the bar and sixteen months to file an application for

review of NAC’s eligibility decision. He argues, however, that extraordinary

circumstances exist because he discovered “well after the 30 day deadline for

                                           4
appeal of FINRA’s disciplinary sanction” that certain FINRA executives were

biased against him. Asensio alleges that because he took actions to reveal stock

fraud in the American Stock Exchange, which NASD owned between 1998 and

2004, its Chief Executive Officer “had substantial motive and opportunity to

influence” the PolyMedica investigation.

         We agree with the SEC that this unsubstantiated accusation of bias does not

excuse Asensio’s late appeal. Asensio has not established that the relationship

between the American Stock Exchange and NASD was undiscoverable during the

PolyMedica proceeding. Nor has he provided any evidence that this relationship

in fact caused the CEO to be biased against him. And even if such bias existed,

Asensio would still have to prove that the CEO influenced or participated in the

NASD investigation, which he has not done. A cursory allegation that bias may

have existed within NASD’s hierarchy during the PolyMedica proceedings is not

an extraordinary circumstance that justifies missing the filing deadline by three

years.

         Asensio also contends that extraordinary circumstances exist because

appealing FINRA’s denial of ISI’s application would have been “futile” in light of

the “considerable discretion” that the SEC gives to FINRA’s membership

decisions. But a deferential standard of review does not mean that filing an appeal

                                           5
is futile. Nor does it create extraordinary circumstances that excuse a late filing.

      Asensio next asserts that extraordinary circumstances exist because the

consolidation of NASD and NYSE in 2007 made his bar “more severe and more

punitive” because FINRA has broader authority to regulate financial brokers than

NASD. Asensio waited too long to raise this argument. FINRA was formed on

July 26, 2007. Asensio was before NAC two months later in September 2007 for

the ISI Capital proceeding, yet he never argued that his bar was “more severe”

because of the NASD–NYSE merger. Indeed, the first time he raised this

argument was more than two years after the merger when he wrote a letter to the

SEC in December 2009. If FINRA’s formation was an extraordinary

circumstance, and if Asensio was pursuing his rights diligently, he would have

made this “increased punishment” argument as soon as FINRA was created

instead of waiting two years to file for review at the SEC. Cf. Lawrence v.

Florida, 549 U.S. 327, 336, 127 S.Ct. 1079, 1085 (2007) (“To be entitled to

equitable tolling, [a petitioner] must show (1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way and

prevented timely filing.” (quotation marks omitted)); In re Pennmont Sec., S.E.C.

Release No. 61967, at 9, available at 2010 WL 1638720, at *4 (S.E.C. Apr. 23,

2010) (“Even when circumstances beyond the applicant’s control give rise to the

                                          6
delay . . . an applicant must also demonstrate that he or she promptly arranged for

the filing of the appeal as soon as reasonably practicable thereafter.”).

      AFFIRMED.




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