In Re: Trade and Commerce Bank

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 13, 2018 Decided May 15, 2018
No. 17-5154
IN RE: TRADE AND COMMERCE BANK, BY AND THROUGH ITS
LIQUIDATORS ELEANOR FISHER AND TAMMY FU,
PETITIONER
On Petition for Writ of Mandamus
(1:15-cv-00116)
William T. Reid IV argued the cause for petitioner. With
him on the petition for writ of mandamus and the reply were
Craig A. Boneau, Scott D. Saldaña, and Chun T. Wright.
Michael Olmsted, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the response to
the petition for writ of mandamus was Jennifer Wallis. Vijay
Shanker, Attorney, entered an appearance.
Before: WILKINS and KATSAS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion of the Court filed PER CURIAM.
PER CURIAM: In 1999, federal agents seized approximately
$6.8 million of allegedly illegal proceeds from a New York bank
account in the name of Kesten Development Corporation. Ever
since, the United States Attorney General and fourteen federal
judges—spanning three district courts and three courts of
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appeals—have been attempting to resolve competing claims to
these funds. The Federative Republic of Brazil, which seeks the
funds pursuant to a Brazilian criminal forfeiture order, and the
Liquidators of Trade and Commerce Bank, who hold a British
Virgin Islands default judgment against Kesten that was
domesticated in the United States, remain as potential recipients
of the $6.8 million.
In 2010—after years of technical difficulties explained in
detail in United States v. Federative Republic of Brazil, 748 F.3d
86, 88–90 (2d Cir. 2014)—the United States filed an
interpleader action in the District Court for the Southern District
of New York to resolve the competing claims. Two years later,
that district court concluded that Brazil was entitled to the funds.
United States v. Barry Fischer Law Firm, LLC, No. 10 Civ.
7997, 2012 WL 5259214, at *1 (S.D.N.Y. Oct. 24, 2012). The
Second Circuit reversed, holding that enforcement of Brazil’s
criminal forfeiture order violated the penal law rule barring
United States courts from enforcing the penal laws of foreign
countries. United States v. Brazil, 748 F.3d at 88. The Second
Circuit, noting that 28 U.S.C. § 2467 provides a statutory
exception to the penal law rule, remanded the case “to the
district court with instructions that it afford Brazil and the
Attorney General a reasonable period of time to satisfy § 2467’s
exception . . . before reaching a final decision in th[e]
interpleader action.” Id.
Several months later, the Attorney General applied in the
District Court for the District of Columbia to restrain the funds
pursuant to 28 U.S.C. § 2467(d)(3). When the D.C. district
court granted the application, the District Court for the Southern
District of New York transferred the interpleader action to the
District of Columbia so that the two cases could be resolved in
tandem. The D.C. district court stayed the interpleader action
pending resolution of the § 2467 action. The Liquidators filed
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motions to vacate the stay and dissolve the restraining order on
the ground that the Second Circuit’s mandate required the
United States to file for enforcement of a final forfeiture order
pursuant to 28 U.S.C. § 2467(b) and (c), not for a restraining
order under § 2467(d)(3). The district court denied the motions.
Before this court is the Liquidators’ petition for writ of
mandamus to compel the D.C. district court’s compliance with
the Second Circuit’s mandate. There is no doubt this court has
mandamus jurisdiction “to confine a lower court to the terms of
an appellate tribunal’s mandate.” Will v. United States, 389 U.S.
90, 95–96 (1967).
The parties dispute the proper standard of review. The
Liquidators argue that mandamus actions seeking to compel
compliance with a mandate differ from other mandamus actions
and require only a showing that the letter and spirit of the
mandate were violated. The United States argues that the
Liquidators must show, as in all mandamus cases, (1) a clear and
indisputable right to relief, (2) no other adequate means of
redress, and (3) appropriateness under the circumstances. See
Cheney v. United States District Court for the District of
Columbia, 542 U.S. 367, 380–81 (2004) (citing Kerr v. United
States District Court for the Northern District of California, 426
U.S. 394, 403 (1976)). We agree with the United States.
Although our mandamus cases dealing with enforcement of
the mandate may not explicitly spell out each of the factors
mentioned in Cheney, see, e.g., City of Cleveland v. FPC, 561
F.2d 344 (D.C. Cir. 1977), we see no reason why those factors
should not apply. Neither Cheney nor any later case created an
exception for mandamus actions seeking to enforce a mandate.
Early decisions acknowledging the availability of mandamus to
compel compliance with an appellate mandate refer to the
requirement that a party show a “clear and indisputable” right.
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Will, 389 U.S. at 96. Although the Ninth Circuit suggested a
special rule for mandate-mandamus actions, Vizcaino v. United
States District Court for the Western District of Washington,
173 F.3d 713, 719 (9th Cir. 1999), a later decision of that circuit
questioned whether such actions should be treated differently
than other mandamus cases. See Pit River Tribe v. United States
Forest Service, 615 F.3d 1069, 1079 n.1 (9th Cir. 2010).
This brings us to the three Cheney factors. We begin and
end with the first one. The Liquidators have no right to relief,
let alone one that is clear and indisputable. The Second
Circuit’s mandate directs the district court to afford Brazil and
the Attorney General a “reasonable period of time” to invoke
“§ 2467’s exception” to the penal law rule by filing an action
under § 2467. United States v. Brazil, 748 F.3d at 88; see also
id. at 97. The Liquidators believe this could be satisfied only if
the Attorney General filed for enforcement of a final forfeiture
order under § 2467(b) and (c). The district court correctly held
that filing for a § 2467(d)(3) restraining order sufficed.
The Second Circuit acknowledged that the Brazilian
criminal forfeiture order remained subject to appeal in the
Brazilian courts. See United States v. Brazil, 748 F.3d at 90–91.
Because an action for enforcement of a foreign judgment cannot
be filed until that judgment “is not subject to appeal,” 28 U.S.C.
§ 2467(b)(1)(C), the Second Circuit could not have expected
Brazil to pursue such an action immediately. The Second
Circuit contemplated that Brazil would seek a (d)(3) restraining
order. It credited Brazil’s representation that it “would
promptly . . . initiate a § 2467 proceeding” because Brazil had
done so both “with respect to the Venus Account in 2005” and
in In re Seizure of Approximately $12,116,153.16 and Accrued
Interest in U.S. Currency, 903 F. Supp. 2d 19 (D.D.C. 2012).
United States v. Brazil, 748 F.3d at 96–97. Both of those actions
were for § 2467(d)(3) restraining orders.
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Because the Liquidators have no right to relief, they fail to
satisfy the legal standard for obtaining mandamus. As such,
their petition is denied.
So ordered.