    11-2075(L)
    In re: English Sheppard Realty Corp.




                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 29th day of August, two thousand twelve.

    PRESENT:
                ROBERT A. KATZMANN,
                RICHARD C. WESLEY,
                PETER W. HALL,
                      Circuit Judges.
    ___________________________________________

    In the Matter of: English Sheppard Realty Corp.,
                           Debtor,

    Phillip D. Miller,
                          Appellant,

                   -v.-                                                         11-2075 (Lead)
                                                                                11-2129 (Con)

    Office of United States Trustee, New Jersey,
                          Trustee,

    Office of United States Trustee, Eastern District
    of New York,
                          Appellee.
    ___________________________________________


    FOR APPELLANT:                Phillip D. Miller, pro se, Westbury, N.Y.
FOR APPELLEE:                   Ramona D. Elliott, Deputy Director/General Counsel, P. Matthew
                                Sutko, Associate General Counsel, Noah M. Schottenstein, Trial
                                Attorney, Department of Justice, Executive Office for United
                                States Trustees, Washington, D.C.

                                Tracy Hope Davis, United States Trustee for Region 2, Alicia M.
                                Leonhard, Assistant United States Trustee, William E. Curtin,
                                Trial Attorney, Department of Justice, Office of the United States
                                Trustee, Brooklyn, N.Y.

     Appeal from a judgment of the United States District Court for the Eastern District of
New York (Seybert, J.).

         UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

DECREED that the district court judgment is AFFIRMED.

         Appellant Phillip D. Miller, pro se, appeals from the March 22, 2011 judgment of the

United States District Court for the Eastern District of New York (Seybert, J.) affirming the

bankruptcy court’s April 13, 2010 order directing him to disgorge $146,000. We assume the

parties’ familiarity with the underlying facts and the procedural history of the case.

         Our review of the orders of the district courts in their capacity as appellate courts in

bankruptcy cases is plenary, “meaning that this Court undertakes an independent examination of

the factual findings and legal conclusions of the bankruptcy court.” In re Duplan Corp., 212

F.3d 144, 151 (2d Cir. 2000). We review the bankruptcy court’s conclusions of law de novo and

its factual findings for clear error only. In re First Cnt. Fin. Corp., 377 F.3d 209, 212 (2d Cir.

2004).

         To the extent that Miller argues that he should not be required to disgorge any funds, and

that he is entitled to an order of compensation for his work on the bankruptcy case, his claims are

barred by the law of the case doctrine. Under that doctrine, “when a court decides upon a rule of

law, that decision should continue to govern the same issues in subsequent stages in the same

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case.” Arizona v. California, 460 U.S. 605, 618 (1983). A panel of this Court will not generally

reconsider the decision of a previous panel unless the litigant presents a “cogent and compelling

reason.” United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002). This Court has already

ruled that the bankruptcy court did not abuse its discretion by ordering Miller to disgorge fees he

paid to himself from the debtor’s funds, or by denying his request for compensation. See Miller

v. Simpson, 325 F. App’x 25, 28 (2d Cir. 2009) (summary order). We remanded the case only

for a calculation of the amount of disgorgement. Id. Miller has not identified any cogent or

compelling reason for reaching a different conclusion than the previous panel.

       For the first time in his appellate brief, Miller argues that the lower courts erred by

treating this matter as one involving a core bankruptcy proceeding, and that his constitutional

rights were violated because he had a common-law lien on proceeds from the sale and, therefore,

had a right to be heard by an Article III judge. Miller’s arguments were raised for the first time

on appeal, see Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that

a federal appellate court does not consider an issue not passed upon below.”), but are, in any

event, without merit.

       Miller does not contend that the $146,000 was incorrectly calculated, or does not

constitute attorney’s fees, and his other arguments are largely irrelevant to the sole issue

remaining in this case---the amount of disgorgement. Further, as instructed by this Court in its

prior order, the bankruptcy court explained “whether, how, and on what basis it is accounting for

or requiring disgorgement of the payments related to the Lots transactions,” and gave “due

attention” to the transaction’s benefit to the debtor. See Miller, 325 F. App’x at 27-28.




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        Finally, because Miller’s brief does not mention the denial of his motion to alter or

amend the judgment, he has waived any challenge to that decision. See LoSacco v. City of

Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (finding pro se litigant abandoned an issue by

failing to raise it in his appellate brief).

        We have considered all of Miller’s arguments and find them to be without merit.

Accordingly, the judgment of the district court is AFFIRMED.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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