                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT               September 25, 2003

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-60437


KENNETH R WARD

                            Petitioner

     v.

SECURITIES AND EXCHANGE COMMISSION

                            Respondent


                Petition for Review of an Order of the
                   Securities and Exchange Commission
                                (3-9327)


Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN,*

District Judge.

PER CURIAM:**

     Petitioner Ward seeks review of the Securities and Exchange

Commission’s order sanctioning him for violations of § 17(a) of

the Securities Act of 1933, 15 U.S.C. § 77q(a) (2000), § 10(b) of

the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b)

(2000)(the “Exchange Act’), and Commission Rule 10b-5, 17 C.F.R.


     *
          District Judge for the Northern District of Texas,
sitting by designation.
     **
          Pursuant to 5TH CIR. 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that this opinion should not be published and is not precedent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 5TH CIR. R.
47.5.4.

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§ 240.10b-5 (2003).   Ward’s violations occurred in connection

with sales of securities known as “inverse floaters” to League

City, Texas and Bryan, Texas.

     “We uphold an agency’s decision unless it is ‘arbitrary,

capricious, an abuse of discretion, or otherwise not in

accordance with law.’”   Meadows v. SEC, 119 F.3d 1219, 1224 (5th

Cir. 1997) (quoting 5 U.S.C. § 706(2)(A); Hawkins v. Agric. Mktg.

Serv., 10 F.3d 1125, 1128 (5th Cir. 1993)).    Section 25 of the

Exchange Act, 15 U.S.C. § 78y(a)(4) (2000), and § 10 of the

Administrative Procedure Act, 5 U.S.C. § 706(2)(E) (2000),

mandate that the Commission’s findings of fact are conclusive if

supported by substantial evidence.   Further, this court defines

“substantial evidence” as “such relevant evidence as a reasonable

mind might accept to support a conclusion,” and “more than a mere

scintilla and less than a preponderance.”     Meadows, 119 F.3d at

1224 (quoting Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.

1995)).

     The administrative law judge ruled that Ward did not

contravene the anti-fraud provisions of the federal securities

laws.   Her decision was based on several credibility

determinations.   She found that Ward’s testimony (that he fully

disclosed the risks of the securities) was credible and that the

contrary testimony of the city officials was not credible.

Reviewing the ALJ’s decision dismissing the proceedings against

Ward, the Commission rejected the ALJ’s credibility

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determinations and found that Ward had failed to inform the city

officials about the risks of investing in inverse floaters.

     The Supreme Court has emphasized that “[t]he substantiality

of evidence must take into account whatever in the record fairly

detracts from its weight.”    Universal Camera Corp. v. NLRB, 340

U.S. 474, 488 (1951).   In addition, when an agency “does not

accept the findings of the administrative law judge, the Court of

Appeals has an obligation to examine the evidence and findings of

the [agency] more critically than it would if the [agency] and

the ALJ were in agreement.”   NLRB v. Fla. Med. Ctr., Inc., 576

F.2d 666, 674 (5th Cir. 1978).    “Although this heightened

scrutiny does not alter the substantial evidence standard of

review, it does require us to apply it with a particularly keen

eye, especially when credibility determinations are in

issue . . . .”   Garcia v. Sec’y of Labor, 10 F.3d 276, 280 (5th

Cir. 1993).

     Even though the Commission reached different conclusions

than the ALJ about the credibility of several witnesses, we

conclude that substantial evidence supports the Commission’s

findings of fact.   The Commission’s careful and comprehensive

opinion details significant documentary evidence that bolsters

its credibility determinations.

     Accordingly, we AFFIRM the judgment of the Securities and

Exchange Commission.


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