NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
FEB 07 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
In re: RICHARD ALAN SCHOENFELD, No. 15-56871
Debtor, D.C. No. 2:12-cv-02220-SJO
______________________________
RICHARD ALAN SCHOENFELD, MEMORANDUM**
Appellant,
v.
EDWARD HUGLER,* Acting Secretary of
Labor, United States Department of Labor,
Appellee.
EDWARD HUGLER,* Acting Secretary of No. 15-56872
Labor, United States Department of Labor,
D.C. No.
Plaintiff-Appellee, 2:12-cv-00618-SJO-AGR
v.
*
Edward Hugler, Acting Secretary of Labor, is substituted for his
predecessor, Hilda L. Solis, Secretary of Labor, pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
**
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
TOMCO AUTO PRODUCTS, INC., a
corporation,
Defendant,
and
RICHARD ALAN SCHOENFELD, an
individual,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 3, 2017***
Pasadena, California
Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.
In these consolidated appeals, Richard Schoenfeld appeals from the district
court’s judgments, on remand from this court, permanently enjoining him from
serving as a fiduciary to Employee Retirement Income Security Act (“ERISA”)
plans. As the parties are familiar with the facts, we do not recount them here. We
affirm.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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We previously vacated and remanded the district court’s holding on
summary judgment that Schoenfeld’s debts were nondischargeable because his
actions constituted defalcation under 11 U.S.C. § 523(a)(4) in light of intervening
Supreme Court precedent. See Perez v. TOMCO Auto Prods., Inc., 594 F. App’x
930 (9th Cir. 2015). On remand, Schoenfeld’s debt was satisfied and the district
court then reissued an injunction related to his violations of ERISA. Schoenfeld
now challenges the portions of the district court’s orders which permanently enjoin
him from “violating the provisions of Title I of ERISA” and “serving as a fiduciary
to any ERISA-covered employee benefit plan in the future.”
The district court did not abuse its discretion by determining that the law of
the case doctrine precluded Schoenfeld from relitigating the district court’s prior
ruling that Schoenfeld had breached his fiduciary duties under ERISA. See United
States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“Under the ‘law of the
case’ doctrine, a court is generally precluded from reconsidering an issue that has
already been decided by the same court, or a higher court in the identical case.”
(internal quotation marks and citation omitted)). Schoenfeld waived his
opportunity to challenge the district court’s ERISA ruling when he failed to contest
it in his initial appeal. See Kesselring v. F/T Arctic Hero, 95 F.3d 23, 24 (9th Cir.
1996) (per curiam) (“Since appellant failed to raise this issue in its first appeal, it is
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waived.”). We previously vacated and remanded for the district court to reconsider
the unrelated issue of whether Schoenfeld’s debt was dischargeable under the
Bankruptcy Code, and did not disturb the district court’s order as it pertained to
Schoenfeld’s violations of ERISA.
In addition, contrary to Schoenfeld’s contention, the satisfaction of his debt
did not moot the injunctive relief designed to protect against future violations of
ERISA. See F.T.C. v. Affordable Media, 179 F.3d 1228, 1238 (9th Cir. 1999)
(holding that injunctive relief is not moot based on voluntary cessation unless the
defendant shows that it is “absolutely clear” his wrongful activities cannot
reasonably be expected to recur); S.E.C. v. Koracorp Indus., Inc., 575 F.2d 692,
698 (9th Cir. 1978) (“An inference arises from illegal past conduct that future
violations may occur. The fact that illegal conduct has ceased does not foreclose
injunctive relief.” (citations omitted)).
We grant the Secretary of Labor’s Motion to Take Judicial Notice.
AFFIRMED.
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