890 F.3d 301
D.C. Cir.2018Background
- In 1999 federal agents seized about $6.8 million from a New York bank account in the name of Kesten Development Corporation; competing claims have persisted since then.
- Brazil seeks the funds under a Brazilian criminal forfeiture order; Liquidators of Trade and Commerce Bank hold a British Virgin Islands default judgment domesticated in the U.S.
- The United States filed an interpleader in S.D.N.Y. in 2010; the district court awarded the funds to Brazil, but the Second Circuit reversed in United States v. Brazil, remanding with instructions to give Brazil a “reasonable period” to invoke 28 U.S.C. § 2467’s exception to the penal-law rule.
- The Attorney General then filed in D.C. for a § 2467(d)(3) restraining order; the S.D.N.Y. action was transferred to D.C. and stayed pending resolution of the § 2467 proceeding.
- The Liquidators sought a writ of mandamus requiring the D.C. district court to follow the Second Circuit’s mandate by compelling the United States to file for enforcement under § 2467(b) and (c) instead of seeking a (d)(3) restraining order; the district court denied relief.
- The D.C. Circuit denied the Liquidators’ mandamus petition, holding the (d)(3) filing satisfied the Second Circuit’s mandate and that the Liquidators lacked a clear and indisputable right to relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mandamus to enforce an appellate mandate requires a relaxed standard focused on letter and spirit of the mandate | Liquidators: mandate enforcement mandamus needs only showing that letter/spirit of mandate was violated | U.S.: standard mandamus factors from Cheney apply (clear right, no other remedy, appropriateness) | Court: Cheney factors apply; Liquidators must meet them |
| Whether the Second Circuit’s mandate required the Attorney General to file for enforcement under § 2467(b)/(c) (final-forfeiture enforcement) rather than seek a § 2467(d)(3) restraining order | Liquidators: Second Circuit intended immediate filing under (b)/(c); (d)(3) was insufficient | U.S.: Second Circuit anticipated a (d)(3) restraining action while Brazil’s order was still appealable; (d)(3) satisfies the mandate | Court: (d)(3) filing satisfied the mandate; Liquidators lack a clear, indisputable right to relief |
Key Cases Cited
- Will v. United States, 389 U.S. 90 (1967) (mandamus available to confine lower court to appellate mandate)
- Cheney v. United States District Court for the District of Columbia, 542 U.S. 367 (2004) (mandamus standard: clear and indisputable right; no other adequate remedy; appropriateness)
- Kerr v. United States District Court for the Northern District of California, 426 U.S. 394 (1976) (foundation for mandamus factors)
- United States v. Federative Republic of Brazil, 748 F.3d 86 (2d Cir. 2014) (reversal and remand instructing district court to allow Brazil a reasonable period to invoke § 2467)
- City of Cleveland v. FPC, 561 F.2d 344 (D.C. Cir. 1977) (prior D.C. Circuit mandate-enforcement mandamus practice)
- Vizcaino v. United States District Court for the Western District of Washington, 173 F.3d 713 (9th Cir. 1999) (discussing special rule for mandate-mandamus)
- Pit River Tribe v. United States Forest Service, 615 F.3d 1069 (9th Cir. 2010) (questioning different treatment for mandate-mandamus)
- In re Seizure of Approximately $12,116,153.16 and Accrued Interest, 903 F. Supp. 2d 19 (D.D.C. 2012) (example of prior § 2467(d)(3) restraining action by Brazil)