Gordon Pierce v. SEC , 786 F.3d 1027 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2015 Decided May 22, 2015
No. 14-1079
GORDON BRENT PIERCE,
PETITIONER
v.
SECURITIES AND EXCHANGE COMMISSION,
RESPONDENT
On Petition for Review of an Order of
the Securities & Exchange Commission
Christopher B. Wells argued the cause for petitioner.
With him on the briefs were David C. Spellman, Juan Marcel
Marcelino, and Madeleine M. Blake.
Benjamin L. Schiffrin, Senior Litigation Counsel,
Securities and Exchange Commission, argued the cause for
respondent. With him on the brief were Michael A. Conley,
Deputy General Counsel, John W. Avery, Deputy Solicitor,
and Benjamin M. Vetter, Senior Counsel.
Before: MILLETT, Circuit Judge, EDWARDS, Senior
Circuit Judge, and SENTELLE, Senior Circuit Judge.
EDWARDS, Senior Circuit Judge: This case emanates
from two separate enforcement actions initiated by the
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Securities and Exchange Commission (“SEC” or
“Commission”) against Petitioner Gordon Brent Pierce. In
each action, the SEC found that Pierce had violated, inter
alia, Sections 5(a) and 5(c) of the Securities Act of 1933 (the
“Act”), 15 U.S.C. § 77e(a), (c), by selling unregistered
securities. Pierce was ordered to cease and desist from
violating the Act and to disgorge all ill-gotten gains. He now
petitions for review of the SEC’s order in the second
enforcement action and the agency’s subsequent order
denying his motion for reconsideration, principally on the
ground that the second action was barred by res judicata.
The record indicates that Pierce sold shares of stock in
Lexington, Inc. through offshore bank accounts located in
Liechtenstein for millions of dollars in profit. He failed to
comply with the SEC’s registration requirements for the sale
of securities. He transferred the stock through an account in
his own name (the “personal account”), and in two separate
accounts in the names of corporate entities (the “corporate
accounts”). Pierce was the owner of the beneficial assets in
the corporate accounts. During the investigation by the SEC’s
Division of Enforcement (“Division”), Pierce lied about and
concealed his interest in the corporate accounts and the sales
of stock through those accounts. As a result, when it initiated
the first enforcement action, the Division only sought
disgorgement of unlawful profits from the personal account.
After the close of the evidence in the hearing before the
Administrative Law Judge (“ALJ”) in the first enforcement
action, the Division received documents from the financial
regulator in Liechtenstein regarding Pierce’s unlawful sales of
stock through the corporate accounts. The Division filed a
motion to include this evidence in the hearing before the ALJ
and to seek disgorgement of profits on the basis of these
additional violations. The ALJ, however, declined to expand
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the charges in the first enforcement action. The ALJ held that
Pierce had violated the Act based on the unregistered sales of
Lexington stock through the personal account and ordered
disgorgement of illegal profits from those sales. Neither side
sought review, so the ALJ’s decision became a final action of
the SEC.
The Division subsequently initiated a second
enforcement action, charging Pierce with violations of the Act
based on unregistered sales through the corporate accounts
and seeking additional disgorgement of unlawful profits.
Pierce did not contest the pertinent facts giving rise to the
charges in the second enforcement action. Instead, he raised
several affirmative defenses: res judicata, judicial estoppel,
equitable estoppel, and waiver. The Commission rejected
each of these defenses.
In his petition for review, Pierce has presented a number
of arguments to the court. His principal claims are: first, the
second enforcement action was barred by res judicata because
the charges in the first and second enforcement actions both
drew on the same series of connected transactions and on the
same common core or nucleus of facts; and second, the SEC
erred in applying the doctrine of fraudulent concealment. The
SEC counters that, because each unregistered sale of stock is
a separate violation of the Act, there was no identity between
the causes of action in the first and second enforcement
actions. Therefore, the Division was not barred from pursuing
the second enforcement action. The Commission also
contends that the evidence plainly shows that Pierce
fraudulently concealed the evidence of the sales in the
corporate accounts. On the record before the court, we agree
with the Commission that res judicata has no application in
this case, in no small part because of Pierce’s fraudulent
concealment. We also agree with the Commission that there is
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no merit in Pierce’s defenses of equitable estoppel, judicial
estoppel, and waiver. Accordingly, we deny the petition for
review.
I. BACKGROUND
A. Regulatory Overview
An enforcement action before the SEC is initiated by the
issuance of an order instituting proceedings (“OIP”). See 17
C.F.R. § 201.101(a)(4), (7). The OIP must include: (1) the
nature of the proceedings, (2) the jurisdiction and legal
authority supporting the action, (3) a short and plain statement
of the matters of fact and law to be considered and
determined, and (4) the nature of any relief or action sought or
taken. Id. § 201.200(b).
An ALJ presides over a hearing regarding the charges in
the OIP and issues an initial decision that includes the ALJ’s
“[f]indings and conclusions, and the reasons or basis therefor,
as to all the material issues of fact, law, or discretion
presented on the record and the appropriate order, sanction,
relief, or denial thereof.” Id. § 201.360(b). If no party seeks
the Commission’s review of the ALJ’s initial decision within
21 days after it is issued, it becomes the final decision of the
Commission. See id. § 201.360. The Commission’s Rules of
Procedure provide that only the Commission may amend an
OIP to include new matters of fact or law beyond the scope of
the original OIP. Id. § 201.200(d)(1). An ALJ may amend an
OIP to include new matters of fact or law, but only if these
matters are within the scope of the original OIP. Id.
§ 201.200(d)(2).
 5
B. The Facts
It is unnecessary for us to offer an overly detailed
statement of facts explaining the Lexington scheme and
Pierce’s conduct in violating the Act. As noted above, these
facts are not in dispute and are fully set forth in the SEC’s
decisions in this case. In re Lexington Resources, Inc., S.E.C.
Release No. 379, 2009 WL 1684743 (June 5, 2009) (“First
Proceeding”), adopted by the SEC sub nom In re Gordon
Brent Pierce, S.E.C. Release No. 9050, 2009 WL 1953717
(July 8, 2009); In re Gordon Brent Pierce, S.E.C. Release No.
9555, 2014 WL 896757 (March 7, 2014) (“Second
Proceeding”). Because the procedural background of this case
is central to Pierce’s petition for review, however, we offer a
complete picture of the proceedings before the SEC.
****
The SEC began its investigation into trading in Lexington
stock in 2006. With respect to Pierce’s fraudulent
concealment of evidence during the investigation, the
Commission found that during sworn testimony before the
Division, he admitted that he had “an interest” in one of the
corporate accounts (the “Newport account”), but denied
having any interest in the second corporate account (the
“Jenirob account”). Second Proceeding, 2014 WL 896757, at
*4. Pierce was also asked if he had traded Lexington
securities in any accounts other than the Newport account. He
answered no, “effectively denying that he had traded
Lexington securities for Jenirob.” Id. The Division also issued
an investigative subpoena, requiring Pierce to produce “[a]ll
documents reflecting or relating to . . . transactions by you in
Lexington stock. ‘You’ was defined to include ‘any person or
entity acting on [Pierce’s] behalf.’” Id. (alterations in original)
(emphasis omitted). Pierce’s response did not include any
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records showing trading activity in Lexington stock through
the corporate accounts. Id.
As it turned out, the truth was quite different from what
Pierce initially told SEC investigators.
In 2003, Pierce opened a personal brokerage account (the
“Personal Account”) at Hypo-Alpe Adria Bank of
Liechtenstein (“Hypo Bank”). Hypo Bank, in turn,
opened an omnibus account (the “Hypo Omnibus
Account”) at vFinance Investments, Inc., a U.S. broker-
dealer (“vFinance”). Newport and Jenirob also had
brokerage accounts with Hypo Bank (respectively, the
“Newport Account” and the “Jenirob Account”; together,
the “Corporate Accounts”). Pierce was the beneficial
owner of the assets in the Corporate Accounts. Through
the Hypo Omnibus Account, Hypo Bank could trade
securities for any of these customers without disclosing
the identity of the owner of the securities in any
particular trade.
....
As of February 2, 2004, Newport held 1,935,589 shares
of Lexington stock. In May 2004, 435,000 Lexington
shares were issued to Jenirob. Pierce sold approximately
1.6 million Lexington shares from the Corporate
Accounts, through the Hypo Omnibus Account at
vFinance, between February 2004 and December 2004.
The Division calculated the profits from these sales to be
$7,247,635.75.
Id. at *3.
 7
Before initiating the first enforcement action against
Pierce, SEC investigators tried without success to determine
the full extent of Piece’s holdings and dealings in
Liechtenstein.
In late 2006, the Division asked the securities regulator in
Liechtenstein, the Finanzmarktaufsicht (the “FMA”), for
records of Hypo Bank that would identify, among other
things, the customers for which Hypo Bank was selling
Lexington stock. The FMA informed the Division that it
could not obtain the requested documents for the
Division. But in late 2007, the Division learned that the
FMA was working to amend Liechtenstein law to
provide the FMA additional powers that could potentially
allow it to obtain documents for the Division. The
Division therefore sent the FMA an additional request for
documents on February 20, 2008.
Id. at *4 (footnote omitted).
On July 31, 2008, not knowing when, if ever, the FMA
would be able to produce documents responsive to its request,
the Division issued an OIP in the first enforcement action.
This OIP alleged that Pierce violated the sales registration
requirements of the Act when he sold Lexington stock
through his personal account at the offshore bank. The OIP
also alleged violations of Sections 13(d) and 16(a) of the
Securities Exchange Act of 1934, 15 U.S.C. § 78m(d)(1) and
78p(a), and rules thereunder, based on Pierce’s failure to
report his greater than 10% ownership in Lexington stock and
on his failure to report changes in ownership in Lexington
stock as he was trading shares. Id. at *5.
After the close of evidence presented to the ALJ in the
first enforcement action, the FMA finally produced
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documents responsive to the Division’s request. These
documents showed sales of Lexington stock through the
corporate accounts and revealed that Pierce was the beneficial
owner of the assets in the corporate accounts. Id. The Division
moved to admit the newly discovered documents and sought
additional disgorgement of profits from the corporate
accounts. In ruling on the motion, the ALJ stated that she
lacked authority to “expand the scope of matters set down for
hearing beyond the framework of the original OIP.” First
Proceeding, 2009 WL 1684743, at *21. She therefore refused
to admit the evidence for purposes of establishing additional
violations or disgorgement of unlawful profits from the
trading through the corporate accounts. See id. The ALJ
admitted the evidence for two limited purposes related solely
to the charges in the first OIP. Second Proceeding, 2014 WL
896757, at *12.
The ALJ’s initial decision ordered Pierce to disgorge
over $2 million in illegal profits based on trading from the
personal account. Id. at *7. The ALJ “made no findings of
liability regarding § 5 violations based on trading in the
Corporate Accounts, and she did not order disgorgement of
trading proceeds from transactions in those accounts.” Id.
Neither party sought review of the ALJ’s decision, so it
became the final decision of the Commission on July 8, 2009.
In re Gordon Brent Pierce, 2009 WL 1953717.
The Division subsequently issued a second OIP against
Pierce, charging him with violations of the Act based on his
unregistered sales of Lexington stock through the corporate
accounts and seeking disgorgement of unlawful profits from
those sales. Second Proceeding, 2014 WL 896757, at *7.
Pierce admitted the pertinent facts and allegations in the
second OIP, including his beneficial ownership in the
corporate accounts, his sales of Lexington stock through those
9
accounts, and that his conduct violated the Act. Id. However,
he raised the affirmative defenses of res judicata, equitable
estoppel, judicial estoppel, and waiver. Id.
Pierce’s chief argument during the second enforcement
action was that the charges in the second OIP were barred
because they had already been asserted during the first
enforcement action. The Commission found otherwise, stating
in relevant part:
Although the First OIP alleged that Lexington shares
were transferred to Newport or Jenirob and referred to
sales from the Hypo Omnibus Account, that was not
enough to state a claim against Pierce based on
unregistered sales from the Corporate Accounts, or to
calculate the potential disgorgement from those sales.
Thus, the only § 5 violations put at issue by the First OIP
were Pierce’s $2.7 million in unlawful sales through the
Personal Account.
....
We also reject Pierce’s argument that the Division’s
request for disgorgement of trading proceeds from the
Corporate Accounts in its post-hearing brief placed § 5
liability for sales from those accounts at issue in the First
Proceeding. The Division sought that result, but the law
judge refused to allow it because the § 5 liability for
those sales was beyond the scope of that proceeding. . . .
[S]he ruled that no request for additional disgorgement
would be entertained because disgorgement based on
sales from the Corporate Accounts would be outside the
scope of the First OIP. Thus, despite the Division’s
attempts to obtain disgorgement for the trading proceeds
from the Corporate Accounts in the First Proceeding, the
10
law judge ruled against the Division on the grounds that
such a request was not part of that proceeding and that
she did not have authorization to add it.
Id. at *11–12.
The Commission held that res judicata did not bar the
second proceeding because the second proceeding arose from
distinct violations of the Act. Id. at *13. The Commission
went on to hold that, even if res judicata might normally
apply, Pierce’s fraudulent concealment of the evidence of his
unlawful trading through the corporate accounts prevented
any application of res judicata in this case. Id. The
Commission also rejected Pierce’s additional affirmative
defenses of equitable estoppel, judicial estoppel, and waiver.
Id. at *19–22.
II. ANALYSIS
A. Standards of Review
Pursuant to the Administrative Procedure Act, the
Commission’s legal conclusions are set aside if they are
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” 5 U.S.C. § 706(2)(A); see also
Rapoport v. SEC, 682 F.3d 98, 103 (D.C. Cir. 2012). “The
findings of the Commission as to the facts, if supported by
substantial evidence, are conclusive.” 15 U.S.C. § 78y(a)(4).
In its brief to this court, Pierce argues at length that the
Commission’s decision is fatally flawed because it is founded
on a misguided theory of res judicata. The SEC ruled that res
judicata did not apply because the first and the second
proceedings did “not involve the same cause of action,” did
not arise from the same “transaction or connected series of
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transactions,” and did not need “the same evidence . . . to
support both claims.” Second Proceeding, 2014 WL 896757,
at *9–10. Parts of the SEC’s decision appear to rely on legal
precepts enunciated in distinguishable case law. See, e.g.,
SEC v. First Jersey Secs., Inc., 101 F.3d 1450, 1463–64 (2d
Cir. 1996) (second proceeding not barred by res judicata
where unlawful transactions at issue in the second proceeding
had not yet occurred at the time the first proceeding was being
adjudicated). Also perplexing is that the Commission initially
invoked its discretion, as an administrative agency, to apply
the doctrine of res judicata with flexibility. Second
Proceeding, 2014 WL 896757, at *9. In response to Pierce’s
petition for reconsideration, however, the SEC appeared to
change its position. In re Gordon Brent Pierce, S.E.C.
Release No. 9584, 2014 WL 1998514, at *3 (May 15, 2014)
(“Although the Opinion recognizes that res judicata can apply
more flexibly in the administrative context, the Opinion’s
application of res judicata in this proceeding is entirely
consistent with the application of res judicata in the federal
courts.”). It is not entirely clear that the Commission’s
disposition rests on principles of res judicata that are “entirely
consistent with the application of res judicata in the federal
courts,” but this is a matter of no consequence in this case.
It is well understood in administrative law that a
reviewing court will uphold an agency action resting on
several independent grounds if any of those grounds validly
supports the result. See, e.g., Carnegie Natural Gas Co. v.
FERC, 968 F.2d 1291, 1294 (D.C. Cir. 1992). A reviewing
court may not supply a reasoned basis for an agency action
that the agency itself did not give in the record under review.
SEC v. Chenery Corp., 318 U.S. 80, 88, 93–94 (1943).
However, if an agency has justified an order on alternative
grounds, one of which is dispositive, the reviewing court may
uphold the agency action. In other words, the point is that if
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the result in a case is obvious, based on the record before the
court and the rationale offered by the agency, “the best course
is for the reviewing court to simply apply the obvious result.”
American Fed’n of Gov’t Employees v. FLRA, 778 F.2d 850,
862 n.19 (D.C. Cir. 1985); see also Merrick B. Garland,
Deregulation and Judicial Review, 98 Harv. L. Rev. 505,
570–71 (1985) (vacating and remanding is not a logical
response where there is only one conceivable outcome). We
do not quibble with an agency because we do not agree with
every ground upon which it has justified its decision.
The SEC found that Pierce’s fraudulent concealment of
the evidence leading to the charges in the second enforcement
action precluded the application of res judicata. This
determination is based on substantial evidence; it is consistent
with established law; and it independently and conclusively
supports the Commission’s order in this case. Therefore, we
need not address Pierce’s disagreements with the SEC over
whether there was sufficient identity between the causes of
action in the first and second enforcement actions to warrant
the application of res judicata. Pierce does not contest the
fraudulent concealment exception to res judicata. He simply
disagrees with the Commission’s determination that he
engaged in fraudulent concealment. As we explain below,
because we find no error in the SEC’s application of the
fraudulent concealment exception, we deny the petition for
review.
B. The Fraudulent Concealment Exception
“[T]he party challenging an agency’s action as arbitrary
and capricious bears the burden of proof.” San Luis Obispo
Mothers for Peace v. Nuclear Regulatory Comm’n, 789 F.2d
26, 37 (D.C. Cir. 1986) (en banc). Pierce has not discharged
his burden with respect to his claim that the Commission
13
erred in determining that he fraudulently concealed the
evidence supporting the second enforcement action.
The Supreme Court has recognized the application of the
doctrine of res judicata in administrative proceedings. United
States v. Utah Constr. & Mining Co., 384 U.S. 394, 422
(1966). “[N]ewly discovered evidence normally does not
prevent the application of res judicata.” Guerrero v. Katzen,
774 F.2d 506, 508 (D.C. Cir. 1985) (emphasis omitted).
However, as we have made clear, “[e]xceptions to this general
principle occur when evidence is either fraudulently
concealed or when it could not have been discovered with due
diligence.” Id. The former exception is recognized in the
Restatement. RESTATEMENT (SECOND) OF JUDGMENTS § 26,
cmt. j (1982) (“A defendant cannot justly object to being sued
on a part or phase of a claim that the plaintiff failed to include
in an earlier action because of the defendant’s own fraud.”).
Courts have broadly adopted the rule that “the doctrine of res
judicata will not shield a blameworthy defendant from the
consequences of his or her own misconduct.” 47 AM. JUR. 2d
Judgments § 537 (2006) (citing cases).
Although Pierce “maintains that he did not fraudulently
conceal any facts from the Commission” and “also maintains
that the Division was not diligent in attempting to uncover the
facts underlying the Second Proceeding,” Br. of Petitioner 33
n.37, he does not object to the Commission’s findings that he
lied in his investigative testimony and omitted information
requested by the Division’s subpoena. See Second
Proceeding, 2014 WL 896757, at *4. Rather, he argues that,
“even assuming [that his] actions amounted to fraudulent
concealment . . . any concealment ultimately failed [because
the] Division captured the cause of action and supporting
evidence in time to seek disgorgement in the First
Proceeding.” Br. of Petitioner 32. In Pierce’s view, “[t]he
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claim was not fraudulently concealed. It was asserted.” Id. at
46. We disagree.
Contrary to Pierce’s assertions, the Commission found
that the Division could not charge the violations relating to
the unlawful trading in corporate accounts in the first
enforcement action because Pierce had fraudulently concealed
the evidence. As the SEC stated, “because of lies and
omissions in” Petitioner’s response to the investigative
subpoena and in his testimony, “the Division could not
support the allegations necessary to establish its prima facie
case” of liability for unlawful sales through the corporate
accounts. Second Proceeding, 2014 WL 896757, at *14.
Accordingly, the SEC found that Pierce fraudulently
concealed the evidence. Id. at *13. The Commission noted
that, “[t]o find otherwise would reward Pierce for his
duplicitous conduct.” Id.
Moreover, the SEC’s Rules of Procedure make it clear
that the OIP – and not any motion, brief, or other filing by the
Division – establishes the scope of the charges in SEC
enforcement proceedings. 17 C.F.R. § 201.200(b)(3) (“The
order instituting proceedings shall . . . [c]ontain a short and
plain statement of the matters of fact and law to be considered
and determined[.]”). The SEC’s Rules further provide that the
ALJ may only admit “new matters of fact or law that are
within the scope of the original order instituting proceedings.”
Id. § 201.200(d)(2); see also Rules of Practice, 60 Fed. Reg.
32738, 32757 (June 23, 1995) (adopting revisions to SEC’s
Rules of Practice) (“[ALJs] do not have authority to initiate
new charges or to expand the scope of matters set down for
hearing beyond the framework of the original order instituting
proceedings.”).
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Therefore, Pierce’s assertion that the “cause of action” in
the second enforcement action “was actually asserted in briefs
. . . in the first case,” Br. of Petitioner 33 (emphasis added), is
completely off the mark. The mention of the belatedly
discovered unlawful trading in corporate accounts after the
close of the evidence in the first enforcement action did not
indicate that the charges filed in the second enforcement
action were a part of the first enforcement action.
Furthermore, the Division’s motion to admit the belatedly
discovered evidence and to seek disgorgement from the
corporate accounts did not put those charges at issue in the
first enforcement action. The ALJ in the first action found that
the unregistered sales of Lexington stock through the
corporate accounts were outside the scope of the first OIP and
that she lacked authority to expand the scope of the OIP to
hear the additional allegations. First Proceeding, 2009 WL
1684743, at *21. Pierce does not challenge as erroneous the
ALJ’s determination that any liability or disgorgement based
on the corporate accounts trading was outside the scope of the
first OIP.
In sum, Pierce’s assertion that the charges arising from
the unlawful sales of Lexington stock out of the corporate
accounts were “actually asserted” in the first proceeding is
specious. The Division did not obtain the pertinent
information regarding Pierce’s unlawful trading through the
corporate accounts until after the record had been closed in
the first enforcement action. The fact that reference was made
to the corporate accounts proves nothing because it was too
late for the Division to include the charges in the OIP. Thus,
there is no merit to Pierce’s argument that the Commission
could not rely on the fraudulent concealment exception to
foreclose the application of res judicata in the second
enforcement action.
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Pierce also argues that the Division was required to
“formally seek[] an amendment,” Br. of Petitioner 38, or to
expressly reserve the charges of unregistered sales through the
corporate accounts in the first enforcement action, id. at 41
(citing the RESTATEMENT § 26(1)(b)). He protests that the
Division did not “follow[] the rules” when it failed to take
additional steps to preserve the charges related to the
corporate accounts after the ALJ refused to admit the
additional charges. Id. at 38. Pierce’s argument lacks any
legal basis.
First, and tellingly, the Division was within its authority
to pursue the second enforcement action because the basis for
the action was not subsumed in the first enforcement action.
The two actions were separate because they were based on
distinct acts of wrongdoing. As the Commission pointed out,
the “[r]egistration of a security is transaction-specific, in that
the requirement of registration applies to each act of offering
or sale,” and thus each failure to register sales of Lexington
stock was a separate violation. Second Proceeding, 2014 WL
896757, at *10 (internal quotation marks omitted). Moreover,
it does not matter that the same evidence that was used in the
first proceeding might also be relevant to prove separate
violations in the second proceeding. Counsel for Pierce
conceded both of these points at oral argument. Oral
Argument at 5:27–6:41. Counsel also agreed that the SEC – in
carrying out its enforcement duties – has authority to file
charges for individual violations separately and has no
obligation to join them. Id. at 8:10–8:20.
In addition, the Division was under no obligation to seek
interlocutory review of the ALJ’s ruling on the motion to
admit additional evidence. Indeed, there is good reason why it
did not, as the Commission’s rules state that “[p]etitions by
17
parties for interlocutory review are disfavored, and the
Commission ordinarily will grant a petition to review a
hearing officer ruling prior to its consideration of an initial
decision only in extraordinary circumstances.” 17 C.F.R.
§ 201.400(a).
The Commission also explained why, in the context of
administrative enforcement proceedings, it is undesirable to
require the Division to expend resources in seeking to amend
the OIP to add additional charges while a prior action is
pending. Judges in the federal courts have discretion to permit
parties to amend and supplement pleadings. “[I]n contrast,”
the ALJ “lacks the authority to amend an OIP to include
matters outside its original scope; expanding the scope of the
OIP requires action by the Commission.” Second Proceeding,
2014 WL 896757, at *18. The Commission further explained
that an interlocutory appeal to amend the first OIP would have
resulted in delay, which would run counter to the enforcement
agency’s goal to swiftly address violations of the securities
laws. Id. at *18–19.
In conclusion, we find no merit in Pierce’s objections to
the SEC’s application of the fraudulent concealment doctrine.
We want to be clear, however, about the reach of our decision
in this case. First, we do not face a situation here where the
OIP in the first enforcement action subsumed the charges
brought in the second action. Second, we express no view on
what the outcome might have been if the evidence regarding
the corporate accounts had been provided to the SEC before
the first OIP was issued. We leave the possible issues relating
to these scenarios for another day. Here, Pierce’s conduct in
concealing the additional sales of Lexington stock through the
corporate accounts had the intended consequence of
preventing the Division from including those charges and
seeking disgorgement of the additional unlawful profits in the
18
first proceeding. Under these circumstances, we find no error,
let alone arbitrary or capricious action, in the Commission’s
ruling that Pierce could not use res judicata to avoid the
consequences of his own misconduct.
C. Petitioner’s Other Arguments
The Commission also rejected Pierce’s affirmative
defenses of equitable estoppel, judicial estoppel, and waiver.
Pierce raises these defenses again in his petition for review.
We hold that the Commission correctly rejected each asserted
defense.
A party asserting equitable estoppel against the
government must show that “the government engaged in
affirmative misconduct.” Keating v. FERC, 569 F.3d 427, 434
(D.C. Cir. 2009) (internal quotation marks omitted).
“Estoppel generally requires that government agents engage –
by commission or omission – in conduct that can be
characterized as misrepresentation or concealment, or, at
least, behave in ways that have or will cause an egregiously
unfair result.” GAO v. Gen. Accounting Office Pers. Appeals
Bd., 698 F.2d 516, 526 (D.C. Cir. 1983). Pierce does not
assert that the Government engaged in “misrepresentation or
concealment.” Thus, he does not establish the affirmative
misconduct element of his equitable estoppel claim.
Therefore, it is unnecessary for us to consider the remaining
elements of equitable estoppel. Keating, 569 F.3d at 434 n.1
(“As Keating’s claim to estoppel fails at this first step, we
need not consider the remaining estoppel elements; our
silence does not imply that he would be any more successful
on those elements.”).
Pierce also argues that judicial estoppel barred the
Division from asserting the fraudulent concealment exception
19
to res judicata in the second proceeding. Br. of Petitioner 44.
Judicial estoppel “generally prevents a party from prevailing
in one phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001) (internal
quotation marks omitted). In support of this claim, Pierce
contends that
[t]he Division successfully opened the record and
submitted the “unconcealed” FMA (Liechtenstein)
evidence supporting its “unconcealed” $7.5 million claim
in the First Proceeding. Later, in the Second Proceeding,
the Division took the inconsistent position that fraudulent
concealment had prevented assertion of the $7.5 million
(Corporate Accounts) claim in the First Proceeding. Yet,
the Division had actually asserted the unconcealed claim
in the First Proceeding, the ALJ denied the claim, and the
ALJ signaled the Division to ask the Commission to
disgorge, or delegate to the ALJ the authority to disgorge,
the additional $7.5 million. The Division, however, did
not heed the ALJ’s warning and now backtracks to assert
the inconsistent claim that fraudulent concealment of
material facts prevented the Division from the [sic]
asserting the claim in the First Proceeding.
Br. of Petitioner 45–46 (footnote omitted). This argument
makes no sense.
The ALJ denied the Division’s request to expand the
charges in the first enforcement action. Thus, Pierce’s
fraudulent concealment of material facts effectively precluded
the Division from pursuing the charges relating to the
corporate accounts in the first enforcement action. When the
Division belatedly sought to amend the OIP in the first
enforcement action, it assuredly did not argue that there had
20
been no fraudulent concealment. And when the ALJ ruled that
she lacked authority to “expand the scope of matters set down
for hearing beyond the framework of the original OIP,” First
Proceeding, 2009 WL 1684743, at *21, she certainly did not
address the fraudulent concealment issue. In short, there is
nothing to indicate that the Division prevailed in the first
enforcement action on an argument related to fraudulent
concealment and then relied on a contradictory argument to
prevail in the second enforcement action.
Finally, Pierce contends that the SEC erred in concluding
that the Division did not waive a claim for additional
disgorgement in the first enforcement action. On this point,
Piece maintains that the Division effectively “abandoned the
option of a separate action when it moved to admit the new
evidence” at the conclusion of the first enforcement action.
Br. of Petitioner 47. In other words, Pierce again argues that
the Division’s charges relating to the corporate accounts were
“actually litigated” in the first enforcement action and,
therefore, could not be raised again in the second enforcement
action. We need not tarry over this argument. As noted above,
the charges in the second enforcement action indisputably
were not litigated in the first action. Therefore, the SEC was
not precluded from pursuing the second action on the basis of
the fraudulently concealed evidence.
III. CONCLUSION
For the reasons set forth above, the petition for review is
denied.
So ordered.