United States Court of Appeals, District of Columbia Circuit
In re: Trade and Commerce Bank, by and through its Liquidators Eleanor Fisher and Tammy Fu, Petitioner
April 13, 2018
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.
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
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.
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.
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 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.
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,
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.
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. 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).
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
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 ...