Your points of irrelevancy are mostly correct, except one, DOE being the respondent. This is relevant and substantial. If you read the DOE petition for review, it seems very contentious. If that was only directed at DBMM it might be irrelevant as well. But DOE goes after the ALJ almost as aggressively as DBMM. This implies the possibility of an internal pissing match.
I have read this as another moment of "strangeness" in this saga of the DBMM soap opera.
Now in DOE petition and the corresponding respondent-appellee's brief, the both state several ruling providing case precedent to back up the respective positions.
What I find interesting is the DOE used a case ruling and commission quote that has zero to do with the DBMM case, except for aligning with the DOE narrative.
"Commission has previously pointed out the important role deterrence plays in investor protection:
We have held repeatedly, however, that "[t]he extent of any harm that may result
to existing shareholders [from revocation] cannot be the determining factor in our
analysis"; rather, ~'n evaluating what is necessary or appropriate to protect
investors, 'regard must be had not only for existing stockholders of the issuer, but.
also for potential investors." ****Moreover, it is necessary to deter Absolute and
other issuers from disregarding their obligations to present accurate and timely
information to the investing public until spurred by the institution of proceedings."
But this quote about the Absolute case was accurate for those circumstances. While the ALJ never contested CorpFin' s findings regarding delinquency, the Absolute case had far more to it than 3 years of back reporting.
I think I have made it clear that I believe DBMM probably deserves whatever comes it's way. Although, if you view only the recent events regarding DBMM I can see how they could make a case that extenuating factors led to at least some of the reason for late reporting. Coupled with several years now of "better behavior" it takes a lot of the implied threat to investors off the table IMO. Again, not in agreement presa, but I could see the argument.
Back to the internal cat fight. I see an interesting conclusion to all this as well. Commission has the ability to take the mulligan here. They could side with the DOE on the decision and then offer a stay.
"The Commission has stated that it "generally considers four factors" when evaluating the appropriateness of a stay of its own orders:
(1) whether there is a strong likelihood that a party will succeed on the merits in a proceeding challenging the particular Commission action (or, if the other factors strongly favor a stay, that there is a substantial case on the merits); (2) whether, without a stay, a party will suffer irreparable injury; (3) whether there will be substantial harm to any person if the stay were granted; and (4) whether the issuance of a stay would likely serve the public interest."
I will say this one last time, this DBMM debacle has caused me to review a lot of old cases and precedence regarding it. Generally you can find very clear cut, multiple cases that check all the boxes. This one, I haven't found it. Not saying this hasn't happened before, just saying because of the overbearing nature of the SEC, companies that have been in this position generally submit and fade away.
Just my opinion, maybe not completely irrelevant lol.
