Ilyas Khrapunov v. Pavel Prosyankin

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ILYAS KHRAPUNOV, No. 18-16254
Plaintiff-Appellee,
D.C. No.
v. 4:17-mc-80107-
HSG
PAVEL PROSYANKIN; JOHN DOE,
Objectors-Appellants.
OPINION
Appeal from the United States District Court
for the Northern District of California
Haywood S. Gilliam, Jr., District Judge, Presiding
Argued and Submitted December 20, 2018
San Francisco, California
Filed July 24, 2019
Before: Consuelo M. Callahan, N. Randy Smith,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Murguia;
Concurrence by Judge N.R. Smith;
Partial Concurrence and Partial Dissent by Judge Callahan
2 KHRAPUNOV V. PROSYANKIN
SUMMARY *
Discovery
The panel vacated the district court’s grant of an
application under 28 U.S.C. § 1782 for discovery of
evidence for use in a foreign tribunal and remanded for
further proceedings.
The district court denied objectors relief from a
magistrate judge’s order granting plaintiff’s application for
issuance of a subpoena to Google, Inc., compelling the
disclosure of certain subscriber information in the
company’s possession. That information, plaintiff claimed,
would aid his attempt to discharge two court orders issued
against him in ongoing litigation in England. In the English
proceeding, a Kazakhstan bank, alleging that it had been
defrauded, had obtained a worldwide asset freeze order and
cross-examination order against plaintiff.
English courts subsequently denied plaintiff’s attempts
to discharge the two orders. The panel concluded that these
developments in the English litigation called into doubt the
statutory requirement of § 1782 that the discovery be for use
in a foreign “proceeding.” The panel therefore vacated the
district court’s judgment and remanded for further
proceedings.
Concurring in the judgment and dissenting, Judge
Callahan wrote that the action was not moot, and she would
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
KHRAPUNOV V. PROSYANKIN 3
hold that a ruling resolving objections to a subpoena issued
under § 1782 is dispositive, and thus, absent consent by the
parties to a magistrate judge having general jurisdiction,
such a matter must be determined de novo by a district court
judge.
Concurring, Judge N.R. Smith wrote that the dissent was
an advisory opinion.
COUNSEL
Michael L. Freedman (argued), Cara E. Trapani, and Jeffrey
L. Bornstein, Rosen Bien Galvan & Grunfeld LLP, San
Francisco, California, for Objectors-Appellants.
Matthew C. Dirkes (argued) and Martha Boersch, Boersch
Shapiro LLP, Oakland, California, for Plaintiff-Appellee.
OPINION
MURGUIA, Circuit Judge:
28 U.S.C. § 1782 authorizes, but does not require,
federal district courts to assist in the production of evidence
for use in a foreign or international tribunal. Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004).
Here, the district court granted Plaintiff-Appellee Ilyas
Khrapunov’s application for discovery under § 1782.
However, the factual circumstances surrounding
Khrapunov’s application have changed dramatically during
the pendency of this appeal. We therefore vacate the decision
below and remand to the district court to consider, in the first
instance, whether the statutory requirements for discovery
4 KHRAPUNOV V. PROSYANKIN
under § 1782 remain satisfied and whether, as a matter of the
district court’s discretion, discovery remains appropriate.
I.
Khrapunov filed a § 1782 application in federal district
court, seeking issuance of a subpoena to Google, Inc.,
compelling the disclosure of certain subscriber information
in the company’s possession. That information, Khrapunov
claimed, would aid his attempt to discharge two court orders
issued against him in ongoing litigation in England.
The proceedings in England stem from Khrapunov’s
alleged role in the misappropriation of billions of dollars
from JSC BTA Bank, a major bank in Kazakhstan. The bank
alleges that, with Khrapunov’s assistance, the bank’s prior
chairman, Mukhtar Ablyazov, defrauded it of nearly
$6 billion.
The bank obtained two court orders in the English
litigation relevant to this appeal: an order imposing a
worldwide freeze of Khrapunov’s assets, and an order
permitting the bank’s attorneys to cross-examine Khrapunov
concerning his assets. Khrapunov filed separate applications
in the English litigation to discharge the worldwide freeze
order and the cross-examination order.
In August 2017, Khrapunov filed his § 1782 application
in the Northern District of California, requesting that a
subpoena issue to Google. The application was assigned to a
magistrate judge who granted the application, and the
subpoena issued.
KHRAPUNOV V. PROSYANKIN 5
Appellants-Objectors Pavel Prosyankin and John Doe 1
moved to quash the subpoena. The magistrate judge declined
to quash the subpoena in its entirety but did narrow its scope
somewhat. Objectors then sought review by the district
court. The district court denied relief, and Objectors
appealed.
While these matters were pending in district court and on
appeal, the proceedings in England continued. 2 According to
a supplemental declaration provided by Objectors on appeal,
in February and May 2018, Khrapunov’s attempts to
discharge the two court orders against him—the asset freeze
order and the cross-examination order—were denied by
English courts. Khrapunov was not given permission to
appeal those denials, and at least one judge found
Khrapunov’s arguments to be “totally without merit.”
According to Objectors, this means Khrapunov’s discharge
applications have “been finally determined against him, and
Mr. Khrapunov cannot appeal or pursue them any further.”
Khrapunov does not dispute that the discharge applications
have been finally decided and that his request to appeal has
been denied. Instead, he argues that he retains the ability to
reopen those proceedings if he discovers new evidence—
like the subscriber information he seeks from Google.
Objectors argue that the English courts’ final,
nonappealable denials of Khrapunov’s applications render
1
The magistrate judge allowed Doe, a user of one of the subpoenaed
Gmail accounts, to proceed using a pseudonym based on Doe’s stated
concern for his safety.
2
Both Khrapunov and Objectors moved to supplement the record
on appeal with the decisions of the English courts and declarations
describing the consequences of those decisions for this case. We grant
these motions as well as Objectors’ related request for judicial notice.
6 KHRAPUNOV V. PROSYANKIN
this case moot. Alternatively, Objectors argue that the
district court applied the incorrect standard in reviewing the
magistrate judge’s decision and that the district court abused
its discretion by failing to properly weigh the relevant factors
when considering whether to grant the application under
§ 1782.
II.
We have jurisdiction under 28 U.S.C. § 1291. In re
Premises Located at 840 140th Ave. NE, Bellevue, Wash.,
634 F.3d 557, 567 (9th Cir. 2011). We review the district
court’s decision under § 1782 for abuse of discretion. Four
Pillars Enters. Co., Ltd. v. Avery Dennison Corp., 308 F.3d
1075, 1078 (9th Cir. 2002).
III.
Section 1782 provides:
[t]he district court of the district in which a
person resides or is found may order him to
. . . produce a document or other thing for use
in a proceeding in a foreign or international
tribunal . . . . The order may be made . . .
upon the application of any interested
person[.]
28 U.S.C. § 1782(a). Section 1782’s statutory language has
been distilled to permit district courts to authorize discovery
where three general requirements are satisfied: (1) the person
from whom the discovery is sought “resides or is found” in
the district of the district court where the application is made;
(2) the discovery is “for use in a proceeding in a foreign or
international tribunal”; and (3) the application is made by a
foreign or international tribunal or “any interested person.”
KHRAPUNOV V. PROSYANKIN 7
See 28 U.S.C. § 1782(a); see also Brandi-Dohrn v. IKB
Deutsche Industriebank AG, 673 F.3d 76, 80 (2d Cir. 2012);
In re Clerici, 481 F.3d 1324, 1331–32 (11th Cir. 2007).
In this case, the second statutory requirement—that the
discovery be for use in a foreign “proceeding”—is called
into doubt by the developments in the English litigation. In
Intel, the Supreme Court explained that a foreign proceeding
need not be “pending” or even “imminent” when the
discovery is sought. 542 U.S. at 258–59. So long as a future
proceeding is “within reasonable contemplation,” it satisfies
the statute’s requirement. Id. at 259. Intel, however, did not
address the situation here: where the “proceeding” for which
the discovery was initially sought has concluded.
In a case decided before Intel, the Second Circuit
addressed—in a situation almost identical to that present
here—whether the possibility of reopening an already
completed foreign proceeding could satisfy § 1782’s
requirement. See Euromepa, S.A. v. R. Esmerian, Inc.,
154 F.3d 24, 29 (2d Cir. 1998). That court concluded that the
possibility of reopening proceedings could not satisfy
§ 1782, holding:
Section 1782 is designed to provide
discovery in aid of foreign litigation, not to
provide discovery to justify the reopening of
already completed foreign litigation. The
motion to reopen the proceedings in the
French Court of Appeal thus cannot serve as
a predicate foreign proceeding for the
Petition.
Id.
8 KHRAPUNOV V. PROSYANKIN
Although the Euromepa decision cited the “imminence”
standard the Supreme Court rejected in Intel, see id., we are
nevertheless convinced that Euromepa would come out the
same way under Intel’s “reasonable contemplation”
standard. Although § 1782 authorizes discovery in a “broad
range” of circumstances, Intel, 542 U.S. at 259, those
circumstances are not without some limit. Cf. id. (“[W]e hold
that § 1782(a) requires only that a dispositive ruling by the
Commission, reviewable by the European courts, be within
reasonable contemplation.”) (emphasis added). As a general
matter, the mere possibility that discovery might permit
already concluded foreign proceedings to be reopened likely
approaches that limit.
We have recognized that district courts “are in the best
position to review the details of a § 1782 request and to
determine whether judicial assistance is justified.” Four
Pillars, 308 F.3d at 1080 (alteration incorporated). In this
case, in light of the developments in the English litigation,
we conclude that some additional fact-finding about the
nature of the English “proceeding” is necessary—about the
discovery sought and its relationship to the possibility of
reopening the English proceedings; about the standard
Khrapunov must satisfy to reopen those proceedings; about
the relative likelihood of satisfying that standard; and about
whether the discovery sought will actually assist Khrapunov
in satisfying that standard. We leave to the district court to
determine, in light of these facts, whether the statutory
requirements of § 1782 remain satisfied.
Additionally, even where an applicant satisfies § 1782’s
statutory prerequisites, the district court still retains
substantial discretion to permit or deny the requested
discovery. Intel, 542 U.S. at 264–65. The developments in
the English litigation are relevant to the discretionary factors
KHRAPUNOV V. PROSYANKIN 9
courts consider when evaluating § 1782 applications, as
well. See id., 542 U.S. at 264–65. In particular, the English
courts’ willingness to proceed to judgment without the
benefit of the evidence Khrapunov sought, 3 and the courts’
treatment of Khrapunov’s claims (including one judge’s
conclusion that Khrapunov’s position was “totally without
merit”), likely bear on both the “character of the proceedings
underway abroad” and the “receptivity” of the English courts
“to U.S. federal-court judicial assistance.” In re Premises
Located at 840 140th Ave., 634 F.3d at 563 (quoting Intel,
542 U.S. at 264–65). On remand, it may be appropriate for
the district court to reevaluate these discretionary factors, as
well, in deciding whether discovery remains appropriate in
this case.
The dissent suggests our decision will require district
courts, in evaluating § 1782 applications, to adjudicate each
new procedural development in the foreign case. But not all
procedural developments are created equally, and we trust
that district court judges will be able to separate the
insignificant from the significant, mere delay tactics from
events of consequence. After all, “Congress gave the federal
district courts broad discretion to determine whether, and to
what extent, to honor a request for assistance under
28 U.S.C. § 1782.” Four Pillars, 308 F.3d at 1078.
3
Our dissenting colleague suggests that it is only natural that the
English litigation proceeded without the discovery Khrapunov sought.
But it is not apparent why that is necessarily so. Khrapunov could have
attempted to stay the litigation to allow time for the production of the
evidence he sought. And, even if he did attempt to stay the litigation but
was unsuccessful, the English courts’ unwillingness to delay proceedings
might suggest that the English courts were not particularly interested in
“U.S. federal-court judicial assistance” in the first place. Intel, 542 U.S.
at 264.
10 KHRAPUNOV V. PROSYANKIN
Considering the substantial discretion reserved to the
district courts, see Intel, 542 U.S. at 264–65, we vacate the
district court’s order to permit a full exercise of that
discretion.
IV.
Accordingly, the judgment of the district court is
VACATED and the case is REMANDED for further
proceedings consistent with this opinion. Each party shall
bear its own costs.
N.R. SMITH, Circuit Judge, concurring:
The dissent’s foray into the orthogonal issue of the
Federal Magistrates Act “swings hard at the wrong pitch.”
Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921,
1942 (2019) (Sotomayor, J., dissenting). The dissent’s
advisory opinion about an issue of first impression does not
directly bear on our resolution and demands no substantive
response.
CALLAHAN, Circuit Judge, concurring in the judgment and
dissenting:
Congress has long authorized “federal district courts to
assist in the production of evidence for use in a foreign or
international tribunal.” Intel Corp. v. Advanced Micro
Devices, Inc., 542 U.S. 241, 246 (2004); see 28 U.S.C.
§ 1782. Of course, while an applicant seeks discovery under
28 U.S.C. § 1782, nothing stops the foreign tribunal from
proceeding with its own case. The statute’s purpose thus is
KHRAPUNOV V. PROSYANKIN 11
not only to assist participants in foreign litigation but to
“provid[e] efficient assistance.” Advanced Micro Devices,
Inc. v. Intel Corp., 292 F.3d 664, 669 (9th Cir. 2002)
(emphasis added), aff’d, 542 U.S. 241.
As the applicant under § 1782, appellee, Ilyas
Khrapunov, was required to show that he sought discovery
for use in an actual proceeding (or one “within reasonable
contemplation,” Intel Corp., 542 U.S. at 259) in a foreign
tribunal. No one—including appellants, Pavel Prosyankin
and John Doe (collectively, Objectors), and the majority—
disputes that Khrapunov satisfied that requirement.
Khrapunov is a party to an ongoing lawsuit in England.
Naturally, during the past two years while the parties
have been litigating whether the requested discovery should
be allowed, the litigation in England has carried on. Citing
further developments in the foreign proceeding, the majority
imposes on Khrapunov an ongoing burden of proving the
statutory elements for eligibility for discovery at all stages
of the case. Not only is there no support in the statute or our
case law for imposing such a continuing burden, it’s also bad
policy. The majority’s holding arms would-be discovery
targets with a tool for evading discovery under § 1782. By
simply forcing re-litigation of discovery eligibility based on
the precise procedural posture of the foreign proceeding each
time some new development occurs in the foreign case, a
would-be discovery target can stall until the foreign
proceeding ends.
In addition to undermining the statutory aim of
efficiency, the majority’s holding foists upon district courts
the task of adjudicating the significance of each procedural
development in the foreign case. This is contrary to our edict
that federal courts resolving § 1782 applications should not
“involve themselves in technical questions of foreign law.”
12 KHRAPUNOV V. PROSYANKIN
See In re Request For Judicial Assistance From the Seoul
Dist. Criminal Court, Seoul, Korea, 555 F.2d 720, 723 (9th
Cir. 1977).
I fear that the majority’s decision is likely to accomplish
little besides causing further delay. If, upon remand, the
magistrate judge again concludes that the statutory elements
are still satisfied—which is what I would conclude—the
parties would essentially be back to square one without
resolution of the questions squarely before us now. I would
address the issues raised by the parties, including the
question of first impression regarding the Federal
Magistrates Act.
In my view, Objectors have not met their heavy burden
of showing mootness, and we thus have jurisdiction and
should decide this case on the merits. In addressing the
merits of the case, I would hold that a ruling resolving
objections to a subpoena issued under § 1782 is dispositive,
and thus, absent consent by the parties to a magistrate judge
having general jurisdiction, such a matter must be
determined de novo by a district court judge. The district
court here reviewed the magistrate judge’s ruling for clear
error. Accordingly, although the magistrate judge’s analysis
of the relevant factors under § 1782 was reasonable, I would
vacate and remand for a district judge to determine the
matter de novo.
I.
Objectors assert three grounds for vacating or reversing
the district court’s decision: (1) the court lacks jurisdiction
because the case is moot; (2) the magistrate judge lacked the
authority to issue the order denying in part the motion to
quash; and (3) relevant considerations weigh against
allowing discovery under § 1782.
KHRAPUNOV V. PROSYANKIN 13
A.
Objectors argue that recent developments in the English
court proceedings have rendered the § 1782 application
moot. They argue that the orders issued by the English
courts after the magistrate judge’s order here have
effectively foreclosed Khrapunov’s ability to challenge the
worldwide asset freeze and cross-examination orders and
such a challenge was the only basis offered by Khrapunov
for seeking discovery under § 1782. Objectors thus ask us
to vacate the orders below and remand with directions to
dismiss the action. See United States v. Munsingwear, Inc.,
340 U.S. 36, 39 (1950). Objectors have not satisfied their
burden of showing that this case is moot.
“To qualify as a case fit for federal-court adjudication,
‘an actual controversy must be extant at all stages of review,
not merely at the time the complaint is filed.’” Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting
Preiser v. Newkirk, 422 U.S. 395, 401 (1975)). “There is
thus no case or controversy, and a suit becomes moot, ‘when
the issues presented are no longer “live” or the parties lack a
legally cognizable interest in the outcome.’” Chafin v.
Chafin, 568 U.S. 165, 172 (2013) (quoting Already, LLC v.
Nike, Inc., 568 U.S. 85, 91 (2013)). “But a case ‘becomes
moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.’” Id.
(quoting Knox v. Serv. Emps. Int’l Union, Local 1000,
567 U.S. 298, 307 (2012)). “As long as the parties have a
concrete interest, however small, in the outcome of the
litigation, the case is not moot.” Id. (quoting Knox, 567 U.S.
at 307–08). “The party asserting mootness bears a ‘heavy’
burden; a case is not moot if any effective relief may be
granted.” Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d
14 KHRAPUNOV V. PROSYANKIN
1006, 1017 (9th Cir. 2012) (citing Forest Guardians v.
Johanns, 450 F.3d 455, 461 (9th Cir. 2006)).
As a preliminary matter, Khrapunov argues we should
not consider the recent developments in the English court
proceedings because the district court did not consider such
evidence. Khrapunov’s argument is without merit.
Reviewing courts routinely—and often necessarily—
consider in the first instance evidence of events occurring
after the district court’s decision to determine whether the
case has become moot. See, e.g., Camreta v. Greene,
563 U.S. 692, 710–11 (2011) (finding mootness when
claimant had moved out of state after the grant of certiorari);
Bain v. Cal. Teachers Ass’n, 891 F.3d 1206, 1214 (9th Cir.
2018) (finding mootness when plaintiffs seeking prospective
relief against union policy canceled their union
membership); Akina v. Hawaii, 835 F.3d 1003, 1010 (9th
Cir. 2016) (finding mootness when the challenged election
had been canceled, no other ratification elections were
scheduled, and the entity pursuing the originally scheduled
election had been dissolved).
Indeed, not only is it appropriate for a party to present
such extra-record evidence, counsel are duty-bound “to
bring to the federal tribunal’s attention, ‘without delay,’ facts
that may raise a question of mootness.” Arizonans for
Official English, 520 U.S. at 68 n.23 (quoting Bd. of License
Comm’rs of Town of Tiverton v. Pastore, 469 U.S. 238, 240
(1985)); see also Lowry v. Barnhart, 329 F.3d 1019, 1024
(9th Cir. 2003) (“Consideration of new facts may even be
KHRAPUNOV V. PROSYANKIN 15
mandatory, for example, when developments render a
controversy moot and thus divest us of jurisdiction.”). 1
In his § 1782 application, Khrapunov stated that the
requested subpoena was for use in the English proceedings
to support his applications to discharge both the worldwide
freeze order and the cross-examination order. The English
trial courts denied Khrapunov’s discharge applications, and
the English Court of Appeal has now denied Khrapunov
permission to appeal the two interlocutory orders. Objectors
argue that under English law, the English Court of Appeal’s
orders are final and non-appealable and therefore Khrapunov
cannot introduce any additional evidence in the English
proceedings.
In my view, Objectors have not met their heavy burden
of showing that the case is moot. Objectors overstate the
matter when suggesting that Khrapunov has “no ability” to
introduce evidence in the English court proceedings. In his
declaration, Objectors’ English law expert, Anthony
Beswetherick, describes his experience in and knowledge of
the English court system, identifies the recent court
decisions in the English court proceedings, and explains the
significance of those decisions. Beswetherick opines that, as
a matter of English civil procedure, “Mr. Khrapunov’s
Discharge Applications have been finally determined
against him, and Mr. Khrapunov cannot appeal or pursue
them any further.” However, Beswetherick also discusses a
procedure by which Khrapunov could seek to “reopen” his
1
I join the majority in granting Objectors’ motion to take judicial
notice of orders issued by the English courts and the parties’ respective
requests to supplement the record with the declarations of the English
barristers who opine on the significance of the recent English court
rulings for purposes of our mootness analysis.
16 KHRAPUNOV V. PROSYANKIN
request for permission to appeal the denial of his discharge
applications. Although Beswetherick characterizes the
requirements meriting a reopening of the request as “highly
restrictive” and “strictly applied,” he acknowledges that the
possibility nonetheless remains. A case “becomes moot only
when it is impossible for a [federal] court to grant any
effectual relief.” See Knox, 567 U.S. at 307 (emphasis
added).
Here, the records before us reflect that the litigation in
England is ongoing. The federal court could grant effectual
relief by ordering the requested discovery. What the foreign
tribunal does when presented with those materials is of little
consequence to the question of Article III jurisdiction.
Objectors’ argument boils down to an assertion that, in
light of the final determination of Khrapunov’s discharge
applications, the requested discovery is no longer “for use in
a proceeding in a foreign or international tribunal.”
28 U.S.C. § 1782(a). But this argument conflates a statutory
element of a § 1782 application and constitutional
considerations of mootness. Though perhaps they overlap,
the two issues are not the same. In determining whether the
case is moot, we do not simply analyze whether Khrapunov
can still satisfy the statutory prerequisites for discovery
under § 1782. “Mootness can be characterized as ‘the
doctrine of standing set in a time frame: The requisite
personal interest that must exist at the commencement of the
litigation (standing) must continue throughout its existence
(mootness).’” Cook Inlet Treaty Tribes v. Shalala, 166 F.3d
986, 989 (9th Cir. 1999) (quoting U.S. Parole Comm’n v.
Geraghty, 445 U.S. 388, 397 (1980)). To have standing, a
plaintiff need not establish every element of a claim. “The
essence of the standing question, in its constitutional
dimension, is whether the plaintiff has alleged such a
KHRAPUNOV V. PROSYANKIN 17
personal stake in the outcome of the controversy [as] to
warrant his invocation of federal-court jurisdiction and to
justify exercise of the court’s remedial powers on his
behalf.” Or. Advocacy Ctr. v. Mink, 322 F.3d 1101, 1108
(9th Cir. 2003) (alteration in original) (quoting Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252,
260–61 (1977)). Despite the seemingly low likelihood of
success of Khrapunov’s anticipated efforts to make use of
the sought-for discovery in the English court proceedings,
the status of those proceedings—at least as reflected in the
records before this court—has not eliminated Khrapunov’s
personal stake such that he no longer has standing to pursue
his § 1782 application.
Even if the mootness analysis were to turn on whether
Khrapunov can continue to satisfy the elements for
eligibility for discovery under § 1782, as Objectors argue,
Objectors rely on cases that applied a now-rejected standard
for showing that the discovery sought is “for use in a
proceeding in a foreign or international tribunal.” See
28 U.S.C. § 1782(a). Objectors—and the majority—rely on
two Second Circuit decisions that required a strict showing
that the foreign proceeding is “pending” or “imminent.” See
In re Ishihara Chem. Co., 251 F.3d 120, 125–26 (2d Cir.
2001); Euromepa, S.A. v. R. Esmerian, Inc., 154 F.3d 24, 29
(2d Cir. 1998). But the Supreme Court in Intel rejected that
standard, holding instead that adjudicative proceedings need
to be only “within reasonable contemplation.” Intel,
542 U.S. at 259; see id. (“In short, we reject the view,
expressed in In re Ishihara Chemical Co., that § 1782 comes
18 KHRAPUNOV V. PROSYANKIN
into play only when adjudicative proceedings are ‘pending’
or ‘imminent.’”). 2
Because Objectors have not met their “heavy” burden of
showing mootness, I would hold that we are not deprived of
jurisdiction. See Karuk Tribe of Cal., 681 F.3d at 1017. I
thus proceed by offering my view on the merits of the appeal.
B.
Objectors argue that magistrate judges are not authorized
to decide a motion to quash a subpoena issued under § 1782
because such matters are “dispositive” within the meaning
of the Federal Magistrates Act and Federal Rule of Civil
Procedure 72. If Objectors are correct, the magistrate judge
lacked the authority to decide Objectors’ motion to quash
and the district court erred by reviewing the magistrate
judge’s “decision” for clear error rather than determining the
matter de novo. I agree with Objectors.
“The power of federal magistrate judges is limited by
28 U.S.C. § 636.” Mitchell v. Valenzuela, 791 F.3d 1166,
1168 (9th Cir. 2015) (quoting Estate of Conners by Meredith
v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993)). That statute
“provides that certain matters (for example, non-dispositive
pretrial matters) may be referred to a magistrate judge for
decision, while certain other matters (such as case-
2
There may be another barrier to Objectors meeting their heavy
burden of showing mootness: the underlying litigation in England is
ongoing. Even if Khrapunov’s applications to discharge the worldwide
freeze order and the cross-examination order have been finally decided,
those decisions did not terminate the proceedings against Khrapunov.
Because the litigation in England involving Khrapunov is ongoing, this
case is distinguishable from the two Second Circuit cases the Supreme
Court overruled in Intel.
KHRAPUNOV V. PROSYANKIN 19
dispositive motions, petitions for writs of habeas corpus)
may be referred only for evidentiary hearing, proposed
findings, and recommendations.” United States v. Reyna-
Tapia, 328 F.3d 1114, 1118 (9th Cir. 2003) (en banc)
(footnotes omitted).
Federal Rule of Civil Procedure 72, which implements
§ 636(b)(1), distinguishes between “dispositive” and
“[n]ondispositive” matters. Under the rule, a magistrate
judge may “hear and decide” “a pretrial matter not
dispositive of a party’s claim or defense,” and such a
decision may be set aside by the district court only if it is
“clearly erroneous” or “contrary to law.” Fed. R. Civ. P.
72(a). For a dispositive matter, however, a magistrate judge
may issue only “a recommended disposition, including, if
appropriate, proposed findings of fact.” Fed. R. Civ. P.
72(b). Upon a challenge to the recommended disposition,
the district court “must determine de novo” whether to adopt
the magistrate judge’s recommendation. Id.
Section 636(b)(1)(A) provides a list of matters that may
not be heard and determined by a magistrate judge. “The
matters listed in 28 U.S.C. § 636(b)(1)(A) are dispositive
while, in general, other matters are non-dispositive.” Flam
v. Flam, 788 F.3d 1043, 1046 (9th Cir. 2015) (citing Fed. R.
Civ. P. 72). Although the list in Ҥ 636(b)(1)(A) appears to
be exhaustive,” in light of Supreme Court precedent
expanding the list of dispositive matters, “we have adopted
a functional approach” to determining whether a matter is
dispositive. Id.; see also Mitchell, 791 F.3d at 1168
(“Dispositive matters are those listed in section
636(b)(1)(A), as well as ‘analogous’ matters.”). Under this
functional approach, we consider whether the decision on
the matter would deny or grant “the ultimate relief sought”
in the action or whether the decision would dispose of any
20 KHRAPUNOV V. PROSYANKIN
claims or defenses. SEC v. CMKM Diamonds, Inc., 729 F.3d
1248, 1260 (9th Cir. 2013). If so, the matter is dispositive.
Several other circuits follow a similar approach. See, e.g.,
Williams v. Beemiller, Inc., 527 F.3d 259, 265 (2d Cir. 2008)
(undertaking a functional analysis and citing decisions of the
First, Third, Sixth, Seventh, and Tenth Circuits that have
done so as well).
The parties have not cited, and I am not aware of, any
appellate precedent on whether a decision to allow or deny
discovery under § 1782 is dispositive. 3 Applying our
“functional approach,” I would hold that such decisions are
dispositive.
The ultimate relief sought in a § 1782 application is
court-ordered discovery. A decision on whether to quash a
subpoena issued under § 1782 necessarily grants or denies
“the ultimate relief sought.” This sets § 1782 applications
apart from discovery decisions in ongoing domestic civil or
criminal proceedings. See 12 Charles Alan Wright et al.,
Federal Practice and Procedure § 3068.2 (2d ed. 1997)
(making the same distinction and concluding that “[t]he sole
purpose of the [§ 1782] proceeding is to obtain discovery,
and accordingly a motion to compel such discovery is a final,
dispositive matter”).
Although we have not previously decided whether
rulings on motions to quash in § 1782 proceedings are
dispositive under our functional approach, we have
3
In dicta, the Tenth Circuit has stated that it “question[s]” whether
a § 1782 application “constitutes a ‘pretrial matter pending before the
court’ for the purposes of referring a matter to a magistrate judge under”
a local rule concerning reference of non-dispositive discovery matters.
Phillips v. Beierwaltes, 466 F.3d 1217, 1222 (10th Cir. 2006) (quoting
28 U.S.C. § 636(b)(1)(A)).
KHRAPUNOV V. PROSYANKIN 21
repeatedly held that such rulings are final, appealable orders
for purposes of 28 U.S.C. § 1291. See, e.g., In re Premises
Located at 840 140th Ave. NE, Bellevue, Wash., 634 F.3d
557, 565–67 (9th Cir. 2011); United States v. Sealed 1, Letter
of Request for Legal Assistance from the Deputy Prosecutor
Gen. of the Russian Fed’n, 235 F.3d 1200, 1203 (9th Cir.
2000); In re Letters Rogatory from Tokyo Dist. Prosecutor’s
Office, Tokyo, Japan, 16 F.3d 1016, 1018 n.1 (9th Cir.
1994); In re Request For Judicial Assistance, 555 F.2d
at 722. In so holding, we have emphasized the “important”
distinction between § 1782 proceedings and discovery in
typical civil and criminal cases. In re Premises, 634 F.3d
at 565–66. We observed in In re Premises that in a domestic
criminal case, “the district court’s order enforcing a
subpoena is but one step toward the ultimate resolution of
the underlying criminal case.” Id. at 566. In contrast, “the
district court’s subpoena order [in a § 1782 proceeding] is
the district court’s last, or ‘final,’ order because, critically,
the underlying case in a § 1782 appeal necessarily is
conducted in a foreign tribunal. Once the district court has
ruled on the parties’ motions concerning the evidentiary
requests, there is no further case or controversy before the
district court.” Id.
Determining finality under § 1291 is similar (though not
identical) to our functional approach for determining
whether a decision is dispositive under § 636(b)(1)(A) and
Rule 72. In light of our holding that after a district court has
denied a motion to quash in a § 1782 application “there is no
further case or controversy before the district court,” In re
Premises, 634 F.3d at 566, it would be anomalous to
conclude that such a decision by the district court is not
dispositive of the federal court proceeding, see Flam,
788 F.3d at 1047.
22 KHRAPUNOV V. PROSYANKIN
The procedure contemplated by § 1782 is analogous to
an action brought by a domestic agency to enforce an
administrative subpoena under 29 U.S.C. § 161. In both
types of proceedings, an interested party seeks the aid of a
federal court in compelling discovery for use in a proceeding
before another tribunal—either a foreign tribunal (§ 1782) or
a domestic administrative body (§ 161). Our sister circuits
that have addressed the issue agree that a ruling on a motion
to enforce an administrative subpoena is dispositive. See
EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.
2017) (holding that the district court erroneously treated the
agency’s motion to enforce a subpoena as a non-dispositive
matter); United States v. Mueller, 930 F.2d 10, 12 (8th Cir.
1991) (per curiam) (holding that the district court properly
conducted de novo review of a magistrate judge’s proposed
order resolving an IRS petition to enforce a discovery
summons); Aluminum Co. of Am., Badin Works, Badin, N.C.
v. U.S. Envtl. Prot. Agency, 663 F.2d 499, 501 (4th Cir.
1981) (holding that denial of a motion to quash an
administrative search warrant was dispositive requiring de
novo review by the district court); United States v. First
Nat’l Bank of Atlanta, 628 F.2d 871, 873 (5th Cir. 1980)
(raising sua sponte the issue of whether the district court
made a de novo determination of the magistrate judge’s
order enforcing an IRS summons).
The Third Circuit’s analysis is particularly instructive.
In City of Long Branch, the court reaffirmed its prior holding
that a motion to enforce an administrative subpoena is a
dispositive motion because such a proceeding “is over
regardless of which way the court rules.” 866 F.3d at 100
(quoting NLRB v. Frazier, 966 F.2d 812, 817 (3d Cir. 1992)).
“Once the court grants or quashes the agency subpoena, it
determines with finality the duties of the parties. The district
court proceeding is admittedly collateral to the [agency’s]
KHRAPUNOV V. PROSYANKIN 23
pending administrative proceeding, but the question of
whether or not to enforce the subpoena is the only matter
before the court.” Frazier, 966 F.2d at 817–18. The Third
Circuit thus concluded that a ruling on a motion to enforce
an administrative subpoena is “a final decision which
dispose[s] entirely of the [agency’s] business before the
court.” Id. at 818. A ruling on whether to quash a subpoena
issued under § 1782 likewise “determines with finality the
duties of the parties” in federal court. See id. at 817.
Khrapunov offers several arguments in defense of the
district court’s conclusion that rulings on motions to quash
in § 1782 proceedings are non-dispositive. First, he argues
that, under our functional approach, Objectors’ motion to
quash is ancillary and does not dispose of underlying claims
or defenses. But the motion to quash is “ancillary” only to
the foreign proceedings. As we held in Flam, the issue is
whether the decision grants or denies the ultimate relief
sought in the federal court proceeding, not whether the
decision will dispose of claims or defenses in the underlying
proceedings to be litigated elsewhere. 788 F.3d at 1046–47
(holding that remand orders are dispositive even though such
orders do not resolve any underlying claim or defense).
Second, Khrapunov argues that the denial of a motion to
quash in a § 1782 proceeding is non-dispositive because the
prospect of additional litigation remains if, for example, the
subpoenaed party fails to comply with the court’s order. But
that possibility exists in virtually all cases, even after the
entry of a final judgment. For example, a plaintiff whose
lawsuit results in a money judgment may face further
litigation if the defendant does not willingly pay the
judgment; yet there is no doubt the ultimate decision in a
civil lawsuit (e.g., a money judgment) is dispositive within
the meaning of § 636(b)(1) and Rule 72. The possibility that
24 KHRAPUNOV V. PROSYANKIN
a party may defy the court’s order granting or denying the
ultimate relief sought is not a basis for concluding that such
an order is non-dispositive.
Third, Khrapunov relies on our decision in Four Pillars
Enters. Co. v. Avery Dennison Corp., 308 F.3d 1075 (9th
Cir. 2002). But in that case, we did not decide, let alone
consider, the issue presented here—whether rulings on
§ 1782 applications are dispositive. We had no occasion to
consider the issue because the appellant did not raise it.
Instead, the appellant argued only that the magistrate judge
abused his discretion in denying the discovery, implicitly
conceding that the magistrate judge was authorized to decide
its discovery request under § 1782. It is axiomatic that cases
are not authority for issues not considered. See United States
v. Vroman, 975 F.2d 669, 672 (9th Cir. 1992); Sakamoto v.
Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir.
1985) (“[U]nstated assumptions on non-litigated issues are
not precedential holdings binding future decisions.”).
Fourth, Khrapunov suggests that, because the court of
appeals reviews a district court’s decision on a § 1782
application for abuse of discretion, we should defer to the
district court’s conclusion that a decision on a § 1782
application is non-dispositive. Khrapunov misconstrues the
standard of review. A decision on whether to issue a
subpoena under § 1782 or whether to quash or limit the
scope of such a subpoena is reviewed for abuse of discretion
(assuming the threshold statutory elements are met). Four
Pillars, 308 F.3d at 1078. In contrast, the determination of
whether a decision is dispositive under § 636(b)(1) and Rule
72—i.e., whether the magistrate judge is authorized to
decide the matter—is a question of law reviewed de novo.
Mitchell, 791 F.3d at 1168; Bastidas v. Chappell, 791 F.3d
1155, 1159 (9th Cir. 2015) (“The authority of magistrate
KHRAPUNOV V. PROSYANKIN 25
judges ‘is a question of law subject to de novo review.’”
(quoting United States v. Carr, 18 F.3d 738, 740 (9th Cir.
1994))). In any event, “a district court abuses its discretion
when it makes an error of law.” United States v. Hinkson,
585 F.3d 1247, 1261 (9th Cir. 2009) (en banc) (citing Cooter
& Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)).
Finally, Khrapunov cites a practice of district courts
within our circuit treating rulings on § 1782 applications as
non-dispositive. 4 But the district court cases cited by
Khrapunov rely on reasoning that doesn’t square with our
decisions interpreting § 636(b)(1) and Rule 72. Those
district court cases, for example, fail to distinguish between
§ 1782 proceedings and discovery in domestic civil or
criminal cases, conclude that § 1782 proceedings are
ancillary to the underlying foreign proceedings, and rely on
our non-holding in Four Pillars.
In cases where the district court erroneously interpreted
a dispositive matter as non-dispositive—and thus reviewed
the magistrate judge’s ruling through a deferential lens—we
have routinely vacated and remanded for the district court to
consider the motion as a dispositive matter. See Mitchell,
791 F.3d at 1174; Bastidas, 791 F.3d at 1164; Flam,
788 F.3d at 1048; United States v. Rivera-Guerrero,
377 F.3d 1064, 1071–72 (9th Cir. 2004). Other circuits are
in accord. See City of Long Branch, 866 F.3d at 101 (citing
Mitchell, 791 F.3d at 1174, and Flam, 788 F.3d at 1048);
4
Some district courts within the circuit have treated rulings on
§ 1782 applications as dispositive. See, e.g., Holder v. Holder, 392 F.3d
1009, 1013 (9th Cir. 2004) (noting that the district court reviewed de
novo the magistrate judge’s report and recommendation); Advanced
Micro Devices v. Intel Corp., No. C 01-7033, 2004 WL 2282320, at *1
(N.D. Cal. Oct. 4, 2004) (reviewing magistrate judge’s report and
recommendation de novo).
26 KHRAPUNOV V. PROSYANKIN
Williams, 527 F.3d at 266; Vogel v. U.S. Office Prod. Co.,
258 F.3d 509, 520 (6th Cir. 2001); First Union Mortg. Corp.
v. Smith, 229 F.3d 992, 997 (10th Cir. 2000). I would do the
same here.
II.
Because Objectors have not met their heavy burden of
showing that this action is moot, we have jurisdiction and are
thus duty-bound to decide the merits of this case. I would
hold that a decision on a motion to quash a subpoena issued
under 28 U.S.C. § 1782 is not the type of pretrial matter the
Federal Magistrates Act permits district courts to delegate to
the final authority of magistrate judges. When a magistrate
judge is designated to conduct a hearing on such a motion,
the magistrate judge should issue only a recommendation for
the disposition (and, if applicable, proposed findings of fact).
If the recommendation is challenged, a judge of the district
court must determine the matter de novo.
The majority’s decision to remand for the magistrate
judge to reconsider the threshold elements of § 1782 not only
will cause unnecessary delay, it allows the majority to
sidestep the unsettled question presented by the case. We
are missing an opportunity to clarify how § 1782 fits within
our jurisprudence interpreting the Federal Magistrates Act.
I would vacate and remand for a district judge to determine
the matter de novo.