651 F. App'x 22
2d Cir.2016Background
- Petitioners obtained judgments against the Republic of Cuba and moved under the FSIA and Fed. R. Civ. P. 69(a) to turn over Cuban-origin funds held at BBVA New York.
- The U.S. District Court (S.D.N.Y.) ordered BBVA to turn over funds originating from a Cuban government electronic transfer and denied BBVA’s reconsideration motion (orders dated March 17 and May 8, 2015).
- BBVA appealed those turnover and denial-of-reconsideration orders to the Second Circuit.
- BBVA conceded the orders were not final under 28 U.S.C. § 1291 but argued they were appealable under the collateral order doctrine or under 28 U.S.C. § 1292(a)(1) as injunctions.
- The Second Circuit treated the orders as denials of immunity from attachment (turnover) rather than immunity from suit and analyzed appealability accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the March 17 and May 8, 2015 orders are final and appealable under § 1291 | Orders are part of collection; finality not contested by plaintiffs | BBVA conceded non-finality but urged collateral-order appeal or § 1292(a)(1) | Orders are not final under § 1291; appeal dismissed for lack of jurisdiction |
| Whether the orders are appealable collateral orders under Will v. Hallock | Turnover enforces judgments; no separate claim that they are collateral | BBVA: orders conclusively resolve FSIA subject-matter-jurisdiction (immunity from suit) and thus are collateral | Court: orders deny immunity from attachment, not immunity from suit, so not collateral; prior jurisdictional denials were earlier appealable orders |
| Whether § 1292(a)(1) provides jurisdiction because the turnover contains an injunction | Petitioners sought turnover (not an injunction) | BBVA: turnover order includes an injunction restraining claims against garnishee banks and thus is appealable under § 1292(a)(1) | Turnover here did not require bringing property into the state; injunctive language arose in turnover context and is not the type of immediately appealable injunction under § 1292(a)(1) |
Key Cases Cited
- EM Ltd. v. Republic of Argentina, 695 F.3d 201 (2d Cir.) (finality in Rule 69 collection proceedings)
- Will v. Hallock, 546 U.S. 345 (U.S.) (three-part collateral-order test)
- Blue Ridge Investments, L.L.C. v. Republic of Argentina, 735 F.3d 72 (2d Cir.) (distinguishing immunity from suit vs. immunity from attachment)
- Kensington Int’l Ltd. v. Republic of Congo, 461 F.3d 238 (2d Cir.) (orders requiring security/attachment are not immediately appealable)
- Caribbean Trading & Fid. Corp. v. Nigeria Nat’l Petroleum Corp., 948 F.2d 111 (2d Cir.) (posting security/attachment generally reparable)
- Walters v. Indus. & Comm. Bank of China, Ltd., 651 F.3d 280 (2d Cir.) (courts must confirm subject-matter jurisdiction before attachment)
- Lora v. O’Heaney, 602 F.3d 106 (2d Cir.) (reiteration of an earlier appealable ruling does not create a new collateral order)
- Bridgeport Guardians, Inc. v. Delmonte, 537 F.3d 214 (2d Cir.) (narrow scope of § 1292(a)(1) for interlocutory injunctions)
- In re Feit & Drexler, Inc., 760 F.2d 406 (2d Cir.) (distinguishing appealable injunctions that require bringing property into the state)
- Koehler v. Bank of Bermuda, Ltd., 544 F.3d 78 (2d Cir.) (turnover requiring bringing property into state is appealable)
- Sahu v. Union Carbide Corp., 475 F.3d 465 (2d Cir.) (urgency standard for interlocutory appeals)
- Huminski v. Rutland City Police Dep’t, 221 F.3d 357 (2d Cir.) (immediacy/urgency considerations for interlocutory review)