Crystallex International Corp v. Bolivarian Republic of Venezue ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 21-1276, 21-1277, 21-1289
___________
CRYSTALLEX INTERNATIONAL CORPORATION
v.
BOLIVARIAN REPUBLIC OF VENEZUELA
CITGO PETROLEUM CORPORATION; PDV HOLDING,
INC.; PETROLEOS DE VENEZUELA, S.A.,
(Intervenors in D.C.)
Citgo Petroleum Corporation and PDV Holding, Inc.,
Appellants in No. 21-1276
Petróleos De Venezuela, S.A.,
Appellant in No. 21-1277
Bolivarian Republic of Venezuela
Appellant in No. 21-1289
____________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 1-17-mc-00151)
District Judge: Honorable Leonard P. Stark
____________
Argued: December 7, 2021
Before: SHWARTZ, PORTER, and FISHER,
Circuit Judges.
(Filed: January 18, 2022 )
____________
Nathan P. Eimer
Lisa S. Meyer
Gregory M. Schweizer
Eimer Stahl LLP
224 South Michigan Avenue
Suite 1100
Chicago, IL 60604
Robert E. Dunn
Eimer Stahl LLP
99 South Almaden Blvd.
Suite 642
San Jose, CA 95113
Counsel for Intervenor-Appellants CITGO Petroleum
Corporation and PDV Holding, Inc.
Joseph D. Pizzurro
Kevin A. Meehan
Julia Mosse
Juan O. Perla
Curtis Mallet-Prevost Colt & Mosle
2
101 Park Avenue
35th floor
New York, NY 10178
Counsel for Intervenor-Appellant Petróleos de
Venezuela, S.A.
Donald B. Verrilli, Jr. [ARGUED]
Brendan B. Gants
Elaine J. Goldenberg
Ginger D. Anders
Munger Tolles & Olson
601 Massachusetts Avenue, N.W.
Suite 500
Washington, D.C. 20001
Counsel for Defendant-Appellant Bolivarian Republic
of Venezuela
Robert L. Weigel
Rahim Moloo
Jason W. Myatt
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, NY 10166
Miguel A. Estrada [ARGUED]
Lucas C. Townsend
Matthew S. Rozen
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
3
Travis S. Hunter
Jeffrey L. Moye
Richards Layton & Finger
920 North King Street
One Rodney Square
Wilmington, DE 19801
Counsel for Plaintiff-Appellee Crystallex International
Corporation
____________
OPINION OF THE COURT
____________
PORTER, Circuit Judge.
In these consolidated appeals, the Bolivarian Republic
of Venezuela (“Venezuela”) and other appellants ask us to
intervene for a second time in ongoing execution proceedings
against Venezuela. Our jurisdiction to hear the appeals turns
on whether the District Court has reached a final decision. 28
U.S.C. § 1291. It has not, so we lack jurisdiction over these
appeals.
I
A decade ago, Venezuela expropriated valuable mining
rights owned by Crystallex International Corporation
(“Crystallex”), a Canadian mining company. Crystallex Int’l
Corp. v. Bolivarian Republic of Venezuela, 932 F.3d 126, 132
(3d Cir. 2019). After prevailing in an arbitration proceeding,
Crystallex asked a federal district court to confirm the award
and obtained a $1.4 billion judgment. Id. at 133. Crystallex has
since been trying to collect. Id. at 133–35.
4
In the execution action before the District Court,
Crystallex seeks to auction shares owned by Venezuela’s state-
owned energy company, Petróleos de Venezuela, S.A.
(“PDVSA”), to satisfy its judgment against Venezuela. Id. at
134. At stake are PDVSA’s shares in PDV Holding, Inc.
(“PDVH”), a Delaware holding company that owns CITGO
Petroleum Corporation (“CITGO”), a U.S. petroleum refiner.
Id. at 132.1 Venezuela and PDVSA oppose the auction, as a
sale would end PDVSA’s control over CITGO, one of
PDVSA’s most important assets in the United States.
A
In an earlier round of proceedings, Crystallex sought to
seize PDVH’s shares through a “writ of attachment” under
Delaware law, as allowed by Federal Rule of Civil Procedure
69(a). Id. at 134. PDVSA intervened and resisted the attach-
ment on grounds of sovereign immunity. Id.The District Court rejected PDVSA’s defenses after
careful consideration. Crystallex Int’l Corp. v. Bolivarian
Republic of Venezuela, 333 F. Supp. 3d 380, 406, 418 (D. Del.
2018), aff’d and remanded, 932 F.3d 126 (3d Cir. 2019).
Among other things, the District Court held that it had ancillary
jurisdiction to enforce the judgment against Venezuela in this
execution proceeding, and that PDVSA could not assert its
own sovereign immunity as a defense because PDVSA was
Venezuela’s alter ego under federal common law. Crystallex
1
PDVSA, a Venezuelan corporation, wholly owns PDVH, a
Delaware holding corporation, which wholly owns CITGO
Holding, Inc., which wholly owns CITGO Petroleum.
5
Int’l Corp., 333 F. Supp. 3d at 399, 406. In other words, while
PDVSA, not Venezuela, is the nominal owner of the PDVH
shares, the District Court concluded that given Venezuela’s
history of extensive control over PDVSA, PDVSA is
Venezuela for purposes of this suit. Id. at 393, 399. Some days
later, the District Court issued the writ of attachment, ordering
PDVH’s registered agent to retain the stock until further order.
PDVSA appealed, and Venezuela intervened.
Crystallex Int’l Corp., 932 F.3d at 134. In that earlier appeal,
we agreed with the District Court’s reasoning, rejected all of
PDVSA’s immunity defenses, and affirmed the District
Court’s orders, including the writ of attachment. Id. at 151–52.
The Supreme Court denied certiorari, and the case returned to
District Court. Bolivarian Republic of Venezuela v. Crystallex
Int’l Corp., 140 S. Ct. 2762 (2020).
B
While the case was pending on appeal, political condi-
tions in Venezuela changed. In January 2019, following a
fraudulent reelection bid a year earlier, Nicolás Maduro tried
to install himself as President of Venezuela for a second term.
The Venezuelan National Assembly, an elected body, invoked
Venezuela’s constitution and declared Juan Guaidó interim
president. The United States recognized Juan Guaidó as the
legitimate interim President of Venezuela, but Maduro still
clings to power.
“[I]n light of the continued usurpation of power by
Nicolas Maduro,” then-President Trump broadened existing
economic sanctions against Venezuela and blocked any trans-
fer or dealing in PDVSA’s property. Exec. Order No. 13,884,
6
§§ 1, 6 (Aug. 5, 2019), 84 Fed. Reg. 38,843 (Aug. 7, 2019).
Implementing this order, the Office of Foreign Assets Control
(“OFAC”), an agency that administers U.S. economic sanc-
tions, published the following rule:
[T]he entry into a settlement agreement or the
enforcement of any lien, judgment, arbitral
award, decree, or other order through execution,
garnishment, or other judicial process purporting
to transfer or otherwise alter or affect property or
interests in property blocked pursuant to [regula-
tion], is prohibited unless authorized pursuant to
a specific license issued by OFAC.
84 Fed. Reg. 64,415, 64,417 (Nov. 22, 2019), codified at 31
C.F.R. § 591.407. OFAC’s rule looms large in this case.
C
On remand, PDVSA, now joined by PDVH as the gar-
nishee and CITGO as an intervenor, asked the District Court to
quash the writ of attachment. In an argument that raised the
District Court’s sense of déjà vu, they sought to litigate the alter
ego status of PDVSA once again, arguing this time that
Delaware alter ego law controlled.2 Delaware law requires
showing fraud—not just extensive control—to seize the prop-
2
Before it lost its prior appeal to this Court, PDVSA conceded
that “the legal standard for alter-ego . . . applied in this case [is]
federal common law.” J.A. 144; see also First Nat’l City Bank
v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611,
622 n.11 (1983) (holding that federal common law, not state
law, governs the alter ego status of foreign instrumentalities).
7
erty of a non-debtor like PDVSA. See Crosse v. BCBSD, Inc.,
836 A.2d 492, 497 (Del. 2003) (“To state a ‘veil-piercing
claim,’ the plaintiff must plead facts supporting an inference
that the corporation, through its alter-ego, has created a sham
entity designed to defraud investors and creditors.”). And
Crystallex, they argued, has not made that showing.
Crystallex, on the other hand, viewed the attachment’s
validity as a settled matter and moved for a contingent auction
of PDVSA’s shares pending a license from OFAC. Venezuela,
PDVSA, and PDVH opposed, arguing that OFAC’s regula-
tions prohibit a contingent sale and urging the District Court to
stay sale proceedings until Crystallex obtains an OFAC
license.
D
On the eve of the District Court’s hearing on the pend-
ing motions, the United States filed a statement of interest urg-
ing the District Court not to authorize a contingent sale of the
shares. Elliot Abrams, the U.S. Special Representative for
Venezuela at the time, filed a letter asserting that “immediate
steps toward a conditional sale” of CITGO would damage the
legitimacy of the Guaidó government. J.A. 309. Abrams
explained that CITGO’s “loss through a forced sale in a U.S.
court would be a great political victory for the Maduro
regime,” as Maduro could blame the Guaidó government for
the loss of PDVSA assets on U.S. soil. J.A. 309. This, Abrams
said, would “greatly” harm U.S. foreign policy interests.
J.A. 309.
The United States, through OFAC, separately argued
that “U.S. sanctions involving Venezuela require a license for
8
any sale of PDVH shares.” J.A. 300. The United States noted
that OFAC was then considering Crystallex’s specific license
application and asked the District Court to “refrain from
authorizing an auction and sale of Venezuela’s largest and
most important foreign asset while Crystallex’s licensing
application is pending before OFAC.” J.A. 304.3
At the hearing on the pending motions, the United
States clarified its position in response to the District Court’s
questions. It assured the District Court that “the United States
[w]asn’t tak[ing] the position that [the District Court was]
blocked from moving forward” and that “the Court can do
whatever it wants.” J.A. 523. It also clarified, though, that
“Crystallex might well be in violation of OFAC regulations if
it takes these proposed steps.” J.A. 523.
E
On January 14, 2021, the District Court acted on the
pending motions. The District Court refused to quash the
attachment. In the District Court’s view, it had already decided
the alter ego issue and issued the attachment, and we had
affirmed, so (1) issue preclusion prevented PDVSA and its
subsidiaries from relitigating the validity of the attachment
under Delaware law, and, in any event, (2) the state-law chal-
lenge was untimely because PDVSA and its subsidiaries had
failed to preserve the issue after an adequate opportunity to do
so. Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela,
3
While these appeals were pending OFAC denied Crystallex’s
license application, without prejudice if foreign policy
considerations change.
9
No. 17-mc-151-LPS, 2021 WL 129803, at *8–11, *12–15 (D.
Del. Jan. 14, 2021).
The District Court also granted Crystallex’s motion in
part. The District Court decided “to set up the sales procedures
and then to follow them to the maximum extent that can be
accomplished without a specific license from OFAC.” Id. at
*16. The District Court noted, however, that “[a]ll parties agree
that, under current law and policy, a sale of PDVH shares can-
not be completed without a specific OFAC license.” Id. With
that understanding, the District Court decided that “all the pre-
paratory steps that can be taken without such a license can, and
should, be taken.” Id. The District Court also “set out some of
the contours of the sales procedures that it will follow”—
including appointing a special master to aid the District Court
in designing procedures for an eventual judicial sale. Id. at
*17–18.
Venezuela, PDVSA, PDVH, and CITGO appealed the
order.
II
We have “jurisdiction of appeals from all final decisions
of the district courts.” 28 U.S.C. § 1291. “A final decision ends
the litigation on the merits and leaves nothing for the court to
do but execute the judgment.” Hall v. Hall, 138 S. Ct. 1118,
1123–24 (2018) (quotation marks omitted).
The Venezuela appellants seek review of two decisions.
They first ask us to review the District Court’s refusal to quash
the attachment, arguing that the attachment must be quashed
because it conflicts with Delaware alter ego law. They also ask
10
us to review the District Court’s decision to determine final
sale procedures in the future, arguing that it conflicts with
OFAC regulations and disregards U.S. foreign policy interests.
Neither decision is final, so we lack authority to entertain these
arguments.
A
We first address whether the District Court’s refusal to
quash the attachment is a final decision. We consider—and
reject—Crystallex’s argument that refusals to quash post-
judgment attachments are never final. We hold instead that an
attachment in aid of execution, or a refusal to quash one, is
final when “all that remains is for a non-judicial officer to take
and dispose of the defendant’s property.” United States v.
Parker, 927 F.3d 374, 380 (5th Cir. 2019). We lack jurisdiction
over the refusal to quash under that practical test because the
litigation remains ongoing. The District Court must, at the very
least, still rule on pending legal objections to the special
master’s recommended judicial sale procedures. The District
Court’s judicial involvement is ongoing, so the refusal to quash
the attachment is interlocutory. Venezuela and other appellants
will have an adequate opportunity to appeal the refusal to quash
the attachment at a later stage, so there is no practical finality.
1
a
“The archetypal final decision is one that triggers the
entry of judgment.” Hall, 138 S. Ct. at 1124 (quotation marks
and alterations omitted). When a party files an appeal from a
final decision disposing of all claims, our jurisdiction
11
ordinarily presents no difficult question. Id. Orders that
precede a final disposition of claims are, on the other hand,
usually interlocutory and unappealable unless Congress says
otherwise. See 28 U.S.C. § 1292. “The general rule [is] that a
party is entitled to a single appeal, to be deferred until final
judgment has been entered.” Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 868 (1994) (citation omitted). Faith-
ful adherence to the single appeal rule promotes clear jurisdic-
tional rules, allows district judges room to manage complex lit-
igation, and avoids the costs of piecemeal appeals.
The single appeal rule prevents appellate review of
many important litigation decisions that affect property rights.
That includes prejudgment attachments or similar remedies
under Rule 64 “to secure satisfaction of the potential judg-
ment.” Fed. R. Civ. P. 64(a) (emphasis added). A prejudgment
“[a]ttachment is an ancillary remedy by which a plaintiff
acquires a lien upon the property of a defendant in order to
obtain satisfaction of a judgment that the plaintiff may ulti-
mately obtain at the conclusion of the litigation.” Mitsubishi
Int’l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507, 1521
(11th Cir. 1994). These kinds of remedies are “intended to pre-
serve the subject-matter in dispute from waste or dilapidation,
and to keep it within control of the court until the rights of the
parties concerned can be adjudicated by a final decree.”
Forgay v. Conrad, 47 U.S. (6 How.) 201, 204–05 (1848). They
are necessarily “interlocutory,” as they merely allow litigation
to continue toward a final decision. Id. at 204.
For this reason, orders granting or refusing to vacate
prejudgment attachments have long been held unappealable. In
Cushing v. Laird, the Supreme Court held that a foreign attach-
ment on a vessel was not final, as an “attachment is auxiliary
12
and incidental to the principal cause,” which was yet to be liti-
gated. 107 U.S. 69, 76 (1883).4 “Neither the principal defend-
ant nor the garnishees can appeal until after a final decree
against them.” Id. The Supreme Court later cited Cushing with
approval, noting that unlike in a case denying an attachment,
“where an attachment is upheld pending determination of the
principal claim . . . the rights of all the parties can be ade-
quately protected while the litigation on the main claim pro-
ceeds.” Swift & Co. Packers v. Compania Colombiana Del
Caribe, S.A., 339 U.S. 684, 689 (1950).
Appeals from prejudgment attachments and similar
remedies have “shatter[ed] on the rock” of these Supreme
Court precedents. West v. Zurhorst, 425 F.2d 919, 921 (2d Cir.
1970) (Friendly, J.). In United States v. Pearce’s Estate, for
example, we held a “sequestration order” seizing stock—a
device we said was “analogous to foreign attachment at law”—
unappealable. 498 F.2d 847, 849 (3d Cir. 1974) (en banc). We
found no finality because liability was still to be adjudicated
and “[i]n essence, all that ha[d] happened to date is that shares
of stock ha[d] been seized.” Id. at 850. In Petroleos Mexicanos
Refinacion v. M/T King A (Ex-Tbilisi), we similarly held a
refusal to vacate a “warrant of arrest” for a vessel—another
device analogous to attachment—not final, because “the arrest
itself is not the immediate precursor to execution of a judg-
ment.” 377 F.3d 329, 334 (3d Cir. 2004). The refusal to vacate
the warrant of arrest was also unappealable under the
collateral-order doctrine, we held, based on “our long-
4
The purposes of a foreign attachment are “to secure a
respondent’s appearance and to assure satisfaction in case the
suit is successful.” Swift & Co. Packers v. Compania
Colombiana Del Caribe, S.A., 339 U.S. 684, 693 (1950).
13
established precedent from an analogous area”—cases involv-
ing “prejudgment attachments.” Id. at 336 (emphasis added).
Thus, orders granting or refusing to vacate Rule 64 remedies
are not final decisions and immediate appeals are barred unless
the law allows an interlocutory appeal. See, e.g., 28 U.S.C.
§ 1292(b).
Crystallex asks us to extend these prejudgment prece-
dents to post-judgment attachments in aid of execution under
Rule 69(a). Fed. R. Civ. P. 69(a). But post-judgment attach-
ments are different. Post-judgment attachments are used to sat-
isfy a final judgment by seizing and selling property. They
come after, not before, an archetypal final decision. So they do
not lend themselves to the single appeal rule we usually apply
to property seizures that precede a final decision on liability,
including prejudgment attachments under Rule 64. In an exe-
cution proceeding, there has already been at least one oppor-
tunity to appeal the final decision on the merits. There cannot
be just one “final decision.”
The better analogy is not attachments under Rule 64, but
other execution process awarded under Rule 69 or Rule 70, like
a writ of execution directing “the marshal to not only levy but
also to sell the property.” Parker, 927 F.3d at 380. Like a writ
of execution and unlike a prejudgment attachment, a post-
judgment attachment may sometimes be “the immediate pre-
cursor to execution of a judgment.” Petroleos Mexicanos, 377
F.3d at 334. When an execution sale immediately follows an
attachment, the district court’s judicial involvement in the civil
action is over, and all that is left is a ministerial superintending
of the sale. These kinds of post-judgment decisions are “often
appealable” under our precedent. Isidor Paiewonsky Assocs.,
Inc. v. Sharp Props., Inc., 998 F.2d 145, 149 (3d Cir. 1993).
14
b
Crystallex argues, however, that nineteenth-century
Supreme Court precedent requires us to hold that refusals to
quash attachments are never final. Crystallex’s reading of prec-
edent is anachronistic, so we decline to follow that path.
Crystallex’s main authority is Boyle v. Zacharie (Boyle
II), 31 U.S. (6 Pet.) 648 (1832) (Story, J.). In Boyle, the U.S.
circuit court for the district of Maryland—a trial court in diver-
sity cases—entered a money judgment for Louisiana creditors
against Hugh Boyle, a Baltimore merchant. Boyle v. Zacharie
(Boyle I), 31 U.S. (6 Pet.) 635, 641–42 (1832) (Story, J.).5 The
court ordered an attachment, and the U.S. marshal seized
Boyle’s ship, the General Smith. Id. at 642. The court later
issued “a writ of venditioni exponas”—an order requiring the
U.S. marshal to sell the General Smith. Boyle II, 31 U.S. at 655.
Boyle moved to quash the sale order, arguing that a pending
proceeding in equity required staying any sale, but the court
denied Boyle’s motion to quash. Id. Boyle then took his case
to the Supreme Court under section 22 of the Judiciary Act of
1789, authorizing a “writ of error” from “final judgments and
decrees.” Judiciary Act of 1789, ch. 20 § 22, 1 Stat. 73, 84; see
also Boyle II, 31 U.S. at 656.
The Supreme Court addressed “whether a writ of error”
could be brought to review the refusal to quash the sale “upon
mere motion.” Boyle II, 31 U.S. at 656. “In modern times,”
Justice Story noted, “courts of law will often interfere by sum-
5
Under the Judiciary Act of 1789, U.S. circuit courts had
original jurisdiction in diversity of citizenship cases like Boyle.
Judiciary Act of 1789, ch. 20, 1789, § 11, 1 Stat. 73, 78.
15
mary proceedings on motion, and quash an execution errone-
ously awarded,” instead of correcting a judgment through for-
mal post-judgment writs. Id. But quashing execution by sum-
mary motion was a matter of judicial “discretion,” not a legal
“judgment.” Id. at 657. As Justice Story explained:
We consider all motions of this sort to quash
executions, as addressed to the sound discretion
of the court; and as a summary relief, which the
court is not compellable to allow. The party is
deprived of no right by the refusal; and he is at
full liberty to redress his grievance by writ of
error [coram nobis], or audita querela; or other
remedy known to the common law. The refusal
to quash, is not in the sense of the common law
a judgment, much less a final judgment. It is a
mere interlocutory order.
Id.6 Boyle, properly understood, was tied to review by writ of
error. The writ of error was far more limited than the civil
appeal. Chief Justice Oliver Ellsworth, the primary author of
the Judiciary Act, explained it this way: “An appeal is a process
of civil law origin, and removes a cause entirely; subjecting the
6
An audita querela was a suit by a judgment debtor to present
a defense to a judgment that could not have been raised earlier,
and coram nobis was similar. See James Wm. Moore &
Elizabeth B.A. Rogers, Federal Relief from Civil Judgments,
55 Yale L.J. 623, 659–74 (1946) (explaining the writs). The
appellate writ of error should not be confused with the post-
judgment writ of error coram nobis, as coram nobis was a writ
asking a court to set aside its own judgment because of an error
of fact. Id. at 669.
16
fact as well as the law, to a review and re-trial: but a writ of
error is a process of common law origin, and it removes noth-
ing for re-examination but the law.” Wiscart v. D’Auchy, 3 U.S.
(1 Dall.) 321, 327 (1796). One of the writ of error’s settled lim-
itations was that it could not be used to review discretionary
orders. See Boyle II, 31 U.S. at 657 (citing cases). As Chancel-
lor James Kent put it, “[t]here seems to be no position more
uniformly admitted, than that [a writ of] error will not lie on a
matter resting in discretion.” Clason v. Shotwell, 12 Johns. 31,
49 (N.Y. 1814); see also Alfred Conkling, A Treatise on the
Organization and Practice of the Courts of the United States
672 (3d ed. 1856) (“A writ of error will not . . . lie for an
alleged error in deciding upon an application addressed to the
discretion of the court . . .”).
By the time Boyle was decided, the New York Supreme
Court had already concluded that orders on motions to quash
execution were discretionary and so unreviewable by writ of
error. Brooks v. Hunt, 17 Johns. 484, 486–87 (N.Y. Sup. Ct.
1820). Justice Story agreed. Under the forms of action, “sum-
mary proceedings on motion” to quash execution are decided
“in the exercise of [] sound discretion,” not as of matter of legal
right. Boyle II, 31 U.S. at 656. At the time, “it [was] by no
means uncommon for the court to refuse to interfere upon
motion,” even “where the [execution] proceedings [were]
clearly erroneous,” and require the filing of a post-judgment
writ. Id.
Courts had good reason to refuse meritorious motions
to quash. Unlike post-judgment writs, orders on motion to
quash execution did not vacate judgments and had little final-
ity. McCargo v. Chapman, 61 U.S. (20 How.) 555, 556 (1857).
Because orders on motions to quash execution did not have
17
preclusive effect on future executions, review of these orders
by writ of error would not settle legal rights with finality. Id. at
556–57. Boyle must be understood in this procedural context.
Having placed Boyle in its proper procedural context,
we now address Crystallex’s reading of Boyle. Crystallex’s
argument that Boyle and its progeny hold that refusals to quash
attachments are unappealable has no basis in Boyle. Boyle, for
starters, involved a sale order, not an attachment. Boyle II, 31
U.S. at 655 (“[N]o error is assigned on the original judgment,
or on the award of the [attachment.]”). The other authority cited
by Crystallex is Loeber v. Schroeder, 149 U.S. 580 (1893). But
Loeber merely applied Boyle’s rule that “an order overruling a
motion to quash an execution”—in that case a post-judgment
attachment—was not a judgment reviewable by writ of error.
Id. at 584–85 (citing Boyle II, 31 U.S. at 657); see also Toland
v. Sprague, 37 U.S. (12 Pet.) 300, 331–32 (1838) (same). So
Loeber adds nothing to Boyle.
Moreover, contrary to Crystallex’s suggestion, nothing
in Boyle or Loeber turned on the outcome being a refusal to
quash. In McCargo, for example, the Supreme Court had no
difficulty applying Boyle’s holding to dismiss a writ of error
brought from an order quashing a post-judgment attachment.
McCargo, 61 U.S. at 557 (“In this case, the Circuit Court
quashed the execution.”). Nor did Boyle categorically forbid a
writ of error. Boyle said courts could review an “erroneous”
execution award. See Boyle II, 31 U.S. at 656 (“If, therefore,
there is an erroneous award of execution, not warranted by the
judgment, or erroneous proceedings under the execution, a writ
of error will lie to redress the grievance.”); see also Johnson v.
Harvey, 4 Mass. (4 Tyng) 483, 484 (1808) (providing exam-
ples of when a writ of error could be brought against execu-
18
tion). Neither Boyle nor Loeber involved a situation where, as
here, a party complains that execution was erroneously
awarded against the wrong party, and Crystallex cited no anal-
ogous caselaw. This alone distinguishes those cases.
Boyle and Loeber, in short, turned on the limited scope
of the writ of error. But Congress “abolished” the writ of error
in 1928 and replaced it with the appeal. Act of Jan. 31, 1928,
ch. 14, 45 Stat. 54 (“That the writ or error in cases, civil and
criminal, is abolished. All relief which heretofore could be
obtained by writ of error shall hereafter be obtainable by
appeal.”); Erwin C. Surrency, History of the Federal Courts
305 (2d ed. 2002) (noting the demise of distinctions between
the writ of error and the appeal). Appeals were not new. Before
1928, appeals were common on the equity side of federal
courts and allowed for broad review of “facts as well as law”
on appeal from a final decree. Buessel v. United States, 258 F.
811, 814 (2d Cir. 1919). Post-judgment decrees in equity were
reviewable for abuse even if they were discretionary. In re
Farmers’ Loan & Tr. Co., 129 U.S. 206, 215–16 (1889).
Whatever substantive distinction remained between
appeals in equity and law after 1928 ended in 1938. The Fed-
eral Rules of Civil Procedure merged law and equity by replac-
ing the forms of action and bills with “one form of action—the
civil action.” Fed. R. Civ. P. 2. And the post-judgment writs
referenced in Boyle were “abolished” by Rule 60 a few years
later. Fed. R. Civ. P. 60(e). Civil actions and motions, not writs
“shrouded in ancient lore and mystery,” are now the exclusive
way to seek relief from execution proceedings in federal dis-
trict court. Advisory Comm. on Rules of Civ. Proc., Report of
the Proposed Amendments to Rules of Civil Procedure for the
District Courts of the United States (1946), reprinted in 5
19
F.R.D. 433, 476. While rules of procedure cannot alter our
jurisdiction, “many of the procedural rules of the district courts
unquestionably affect [our] jurisdiction” by altering when dis-
trict court orders can be considered final decisions. Bendix
Aviation Corp. v. Glass, 195 F.2d 267, 271 (3d Cir. 1952) (en
banc) (upholding Rule 54(b)).
Crystallex does not explain why Boyle and Loeber have
continued relevance under modern civil procedure. As
Crystallex acknowledges, courts of appeals often hear appeals
from final sale orders—like the order at issue in Boyle. “[P]ost-
judgment orders are often appealable,” we have said. Sharp
Props., 998 F.2d at 149. Or as the Fifth Circuit recently
explained, “[o]rders permitting enforcement of judgments or
requiring defendants to transfer property to plaintiffs might not
take the form of judgments, but they certainly dispose of claims
to that property. And these types of orders have long been
treated as final and appealable.” Hewlett-Packard Co. v.
Quanta Storage, Inc., 961 F.3d 731, 741–42 (5th Cir. 2020)
(citing cases, including Boyle II, 31 U.S. at 656).
Given the merger of law and equity and the abolition of
the forms of action, our appellate jurisdiction is not limited to
those “judgments” that would have been reviewable by writ of
error in the law courts of Westminster. We have allowed
appeals from many orders that likely would not have been
“judgments” under the technical rules of the writ of error. In
Sharp Properties, for example, we held that a writ of assistance
ejecting a non-party tenant under Rule 70 was an appealable
final decision, not an unappealable “ministerial or administra-
tive act.” 998 F.2d at 151. Even more telling, the Supreme
Court now allows appeals from orders vacating prejudgment
attachments by motion, which may well have been
20
unreviewable by writ of error at common law. Compare
Compania Colombiana Del Caribe, 339 U.S. at 688–89
(allowing appeal from an order vacating foreign attachment by
motion), with McCargo, 61 U.S. at 558 (rejecting a writ of
error from an order quashing attachment by motion). And as
we have explained, Boyle merely applied the general rule that
discretionary orders were unreviewable by writ of error.
Clason, 12 Johns. at 49. But the federal reporters are chock-
full of appeals reviewing orders for abuse of discretion. Those
precedents sit uneasily with Boyle and Loeber.
By contrast, there are no well-reasoned decisions
applying Boyle and Loeber to reject an appeal after 1938. See
15B Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 3916 n.8 (2d ed. 1992) (“Wright & Miller”)
(characterizing Boyle as the “old view” of the appealability of
execution orders). The few decisions that apply Boyle or
Loeber to dismiss appeals are perfunctory. See, e.g., United
States v. Moore, 878 F.2d 331, 331 (9th Cir. 1989) (per curiam)
(relying on Loeber to dismiss without explanation); Steccone
v. Morse-Starrett Prods. Co., 191 F.2d 197, 199 (9th Cir. 1951)
(same). This silence speaks volumes. Supreme Court decisions
under the First Judiciary Act are binding and relevant, but we
see no persuasive reason why Boyle’s understanding of the writ
of error and the discretionary nature of motions to quash exe-
cution under the forms of action compels dismissal of these
appeals, and Crystallex offers none. In the contest between the
writ of error and the civil appeal, as in other areas, “[t]he war
between law and equity is over. Equity won.” Douglas
Laycock, The Triumph of Equity, 56 Law & Contemp. Probs.
53, 53 (1993).
21
2
We apply our “practical finality” approach to these
post-judgment orders. Sharp Properties, 998 F.2d at 150. Prac-
tical finality, however, does not mean piecemeal review of
every post-judgment order en route to a final sale. “Appeal
ordinarily should not be available as to any particular post-
judgment proceeding before the trial court has reached its final
disposition.” Wright & Miller § 3916. Generally, the “disposi-
tive question, then, is whether there is anything left for the dis-
trict court to do with respect to execution of the judgment.”
Parker, 927 F.3d at 380. An execution proceeding is final when
“all that remains is for a non-judicial officer to take and dispose
of the defendant’s property.” Id. Or as we said in Sharp
Properties, a post-judgment order is final when it “leaves noth-
ing to be done in the cause save to superintend, ministerially,
the execution of the decree.” 998 F.2d at 150 (quoting In Re
Moody, 825 F.2d 81, 85 n.5 (5th Cir. 1987)). The key word is
“ministerially.” This practical test requires us to determine
whether the District Court’s judicial role is over.
Applying our test, the District Court’s judicial role in
this civil action is far from over. The District Court is proceed-
ing through a judicial sale, not an execution sale, and the sale
process raises several legal questions. To decide judicial sale
procedures, for example, the District Court first needs to rule
on objections to the special master’s proposed judicial sale pro-
cedures. The parties have raised multiple legal objections to
this proposal and continue to brief legal issues. Venezuela, for
example, submitted a district court brief a day after we held
oral argument in this appeal arguing that a contingent auction
pending an OFAC license would violate sanctions regulations.
That is a legal objection calling for the District Court’s judg-
22
ment, not just its ministerial superintendence. More appeals
will likely follow the final order on sale procedures.
Appellants raise several pragmatic arguments for final-
ity, but none are persuasive.
Appellants first argue that the pending judicial proceed-
ings are irrelevant to finality because they involve the sale pro-
cess. The refusal to quash, they say, settled the sole remaining
threshold objection to the sale of PDVSA’s property as a non-
party to the money judgment. In their view, there is no practical
reason to defer review of this separate threshold objection. But
preventing the “harassment and cost of a succession of separate
appeals”—as the law requires—is a fine practical reason to
defer review. Cobbledick v. United States, 309 U.S. 323, 325
(1940). Threshold affirmative dispositive defenses to liability
(like a statute of limitations) are often rejected in interlocutory
orders, but their rejection is not immediately appealable.
Digital Equip. Corp., 511 U.S. at 873. Disappointed litigants
who lose on threshold affirmative defenses must ordinarily
wait “until the end of proceedings before gaining appellate
review.” Van Cauwenberghe v. Biard, 486 U.S. 517, 524
(1988). So too here.
Appellants also argue that further proceedings would be
wasteful if we later hold the attachment invalid. Perhaps. “But
the possibility that a ruling may be erroneous and may impose
additional litigation expense is not sufficient to set aside the
finality requirement imposed by Congress.” Richardson-
Merrell, Inc. v. Koller, 472 U.S. 424, 436 (1985). This rule is
sensible, as we affirm district courts far more often than we
reverse them.
23
Appellants’ core argument, however, is that we should
discount ordinary principles of finality because post-judgment
decisions are more permissive of piecemeal appeals. Sharp
Properties and other decisions of our Court lend some support
to this argument. We have said that “when supplementary post-
judgment orders are involved . . . the policy against . . . avoid-
ing piecemeal review [is] less likely to be decisive.” Sharp
Properties, 998 F.2d at 150 (quoting Ohntrup v. Firearms Ctr.,
Inc., 802 F.2d 676, 678 (3d Cir. 1986)). And in Ohntrup, we
held a post-judgment denial of a motion to withdraw as counsel
immediately appealable even though discovery proceedings in
aid of execution remained pending before the District Court.
Ohntrup, 802 F.2d at 678. But critically, we granted review in
that case only because if the lawyers involved had to wait until
the execution proceedings were over, they “would . . . be
effectively denied meaningful review” of their motion to with-
draw. Id.Unlike in Ohntrup, Appellants have not shown they will
be denied meaningful appellate review unless we intervene
now. Appellants argue that unless we intervene now, they will
be irreparably injured by a fire sale. But that injury will only
materialize if a contingent auction takes place and they ulti-
mately lose on appeal, so they have not shown an effective
denial of appellate review. If we allowed piecemeal appeals to
prevent the risk of mere financial loss occasioned by litigation
decisions, “Congress’s final decision rule would end up a
pretty puny one.” Digital Equip. Corp., 511 U.S. at 872.
The risk of a fire sale is also speculative. We do not yet
know whether the District Court will order a contingent auction
pending OFAC approval (an issue Venezuela continues to vig-
orously litigate before the District Court), so we have no basis
24
to assume that a contingent auction will happen anytime soon.
Far from it, the special master has recommended against com-
mencing the marketing and bidding process until OFAC’s
position materially changes. Even if the District Court rejects
this recommendation and orders a contingent auction, the
District Court appears to agree that OFAC’s approval would
be necessary to complete the transaction and transfer title.
Nor are appellants without a proper remedy: Once the
District Court enters a final decision, they may seek a stay of
execution pending appeal, preventing an auction from going
forward. Fed. R. Civ. P. 62(b), (e); Fed. R. App. P. 8. Stays,
not judge-made equitable or foreign-policy exceptions to the
jurisdictional requirement of finality, are the proper way to
protect appellants from irreparable injury while they raise their
legal challenges on appeal.
3
In a conclusory footnote, appellants also argue that the
refusal to quash is appealable as a collateral order. This argu-
ment lacks merit for the same reason as their finality argument:
appellants have not shown that refusals to quash an attachment
are effectively unreviewable on appeal later. See Mohawk
Indus., Inc. v. Carpenter, 558 U.S. 100, 108–09 (2009) (an
appellant must show that “deferring review until final judg-
ment so imperils the interest as to justify the cost of allowing
immediate appeal of the entire class of relevant orders”).
The refusal to quash is not a final decision.
25
B
Venezuela separately appeals the District Court’s deci-
sion to “set up the sales procedures and then to follow them to
the maximum extent that can be accomplished without a spe-
cific license from OFAC.” Crystallex Int’l Corp., 2021 WL
129803, at *16. This preliminary order—a decision to
determine sale procedures in the future with the advice of a
special master—is interlocutory and unappealable.
1
Before addressing our jurisdiction, we pause to explain
what the District Court did not decide. Appellants say that the
preliminary decision on sale procedures “contemplates a con-
tingent auction” without prior OFAC approval. Appellants’
Opening Br. 44 (emphasis added); see also Oral Argument at
14:10–14:44 (asserting the decision requires steps toward a
contingent auction). But saying that an order contemplates a
contingent auction is an admission that the order is tentative
and not final on at least that disputed issue. The District Court
docket confirms this. In its briefing before the District Court,
Venezuela continues to litigate the legality of a contingent auc-
tion and insists that the District Court has yet to decide whether
to approve a contingent auction.
Our own review of the January 2021 order confirms that
the District Court has not approved a contingent auction. The
District Court said it would go only as far as OFAC’s regula-
tions allow and acknowledged that OFAC’s approval will be
needed to complete a sale. The final sale procedures order, not
the preliminary decision on appeal, will govern if, when, and
26
how, a sale can begin and end.7 To be sure, the District Court
did not foreclose the possibility of a contingent auction pend-
ing OFAC’s approval. But neither did it endorse that possibil-
ity. That issue will be decided in the final sale procedures
order, with the benefit of the special master’s recommenda-
tions after further briefing. Venezuela’s assertion that a contin-
gent auction would violate OFAC’s regulations is therefore
unripe for resolution in this appeal. Toilet Goods Ass’n, Inc. v.
Gardner, 387 U.S. 158, 162–63 (1967). We reject Venezuela’s
attempt to inject this premature issue into this appeal.
2
The only decision before us, then, is the District Court’s
decision to begin the process for deciding sale procedures.
Venezuela argues that we have jurisdiction to review this deci-
sion under the collateral-order doctrine. We do not.
7
Appellants read a contingent-sale requirement into the
District Court’s decision to allow “[t]he winning bidder . . . a
reasonable amount of time to pursue any necessary and
desirable regulatory approvals.” Crystallex Int’l Corp. v.
Bolivarian Republic of Venezuela, No. 17-mc-151-LPS, 2021
WL 129803, at *17 (D. Del. Jan. 14, 2021). But this part of the
order refers to regulatory approvals generally, not OFAC
approvals. OFAC is far from the only regulator in Washington,
D.C. As Crystallex explained, a winning bidder may need
merger approval from the Federal Trade Commission and the
Department of Justice before closing the acquisition. See 15
U.S.C. § 18a. Similarly, bidders from outside the United States
may need approval from the Committee on Foreign Investment
in the United States. See 50 U.S.C. § 4565.
27
The collateral-order doctrine is a narrow exception from
the general rule that a party is entitled to a single appeal.
Digital Equip. Corp., 511 U.S. at 868. It allows appeals from a
“small class” of orders “which finally determine claims of right
separable from, and collateral to, rights asserted in the action,
too important to be denied review.” Cohen v. Beneficial Indus.
Loan Corp., 337 U.S. 541, 546 (1949). “That small category
includes only decisions that are conclusive, that resolve
important questions separate from the merits, and that are
effectively unreviewable on appeal from the final judgment in
the underlying action.” Swint v. Chambers Cnty. Comm’n, 514
U.S. 35, 42 (1995).
Orders that “substantially overlap” or are intertwined
with the “factual and legal issues of the underlying dispute” are
not separate from the merits under Cohen, “making such deter-
minations unsuited for immediate appeal as of right under
§ 1291.” Biard, 486 U.S. at 529. The District Court’s prelimi-
nary order is not separate from the merits of the pending pro-
ceedings. The preliminary order is but a “tentative, informal,
[and] incomplete” step on the issue of how far the District
Court can go toward a final sale. Cohen, 337 U.S. at 546. The
District Court will decide how far is too far in the forthcoming
order on sale procedures, after further briefing. Crystallex Int’l
Corp., 2021 WL 129803, at *16–17. Venezuela’s claim that
this preliminary decision to determine sale procedures goes too
far will substantially overlap with and merge into the merits of
the forthcoming final decision on sale procedures, so it is not
collateral to the pending proceedings.
* * *
28
We lack jurisdiction over the appeals, so we will dis-
miss them. In doing so, we express no opinion on the merits,
as they are not before us. Venezuela or other appellants may
raise their arguments in a future appeal from a final decision,
and we will consider their arguments then.
29