“Section 1292(b) does not contemplate appellate review of a district court’s threshold decision about whether to certify a question for appeal.”
How later courts described this case
- “Section 1292(b) does not contemplate appellate review of a district court’s threshold decision about whether to certify a question for appeal.”
Written by the judges who cited it.
The opinion
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 12, 2021 Decided December 3, 2021
No. 20-7078
AGUDAS CHASIDEI CHABAD OF UNITED STATES,
APPELLEE
v.
RUSSIAN FEDERATION, ET AL.,
APPELLEES
STATE DEVELOPMENT CORPORATION VEB.RF, FORMERLY
KNOWN AS VNESHECONOMBANK,
APPELLANT
Appeal from the United States District Court for
the District of Columbia
(No. 1:19-mc-00146)
David Y. Livshiz argued the cause for appellant. With him
on the briefs were Timothy P. Harkness, Scott A. Eisman, Maria
Slobodchikova, and Elvira Sihvola.
Steven Lieberman argued the cause for appellees. With
him on the brief was Robert P. Parker.
2
No. 20-7080
AGUDAS CHASIDEI CHABAD OF UNITED STATES,
APPELLEE
v.
RUSSIAN FEDERATION, ET AL.,
APPELLEES
TENEX-USA INCORPORATED,
APPELLANT
Appeal from the United States District Court for
the District of Columbia
(No. 1:05-cv-01548)
Nicolle Kownacki and David Riesenberg argued the causes
for appellant. With them on the briefs were Carolyn B. Lamm
and Ena Cefo.
Steven Lieberman argued the cause for appellees. With
him on the brief was Robert P. Parker.
Mark B. Feldman, Jack Blumenfeld, and Michelle
Streifthau-Livizos were on the brief for amicus curiae Former
State Department Deputy Legal Advisor Mark B. Feldman in
support of appellees.
3
Before: SRINIVASAN, Chief Judge, ROGERS, Circuit Judge,
and SENTELLE, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
Rogers, CIRCUIT JUDGE: These appeals arise out of the
efforts of appellee Chabad to recover 17th century religious
materials taken in the 1900s. Specifically as relevant here,
Chabad served appellants with subpoenas seeking to identify
whether either held assets that could be attached on the fines
imposed by the district court when the Russian Federation and
three of its affiliates failed to comply with an order to produce
certain materials. Both appellants moved to quash the
subpoenas. Neither, however, appealed the district court
denials of their motions. They each now attempt to appeal the
district court denials of their efforts to present immunity
defenses. The court dismisses the appeal in No. 20-7078 and
affirms the district court in No. 20-7080.
In No. 20-7078, the court has no jurisdiction to review
either the December 2019 order denying appellant’s motion to
quash or the July 2020 order denying certification of the
December order for interlocutory review. The court also has no
jurisdiction to review the December order as a collateral order
pursuant to 28 U.S.C. § 1291 because the appeal was filed after
the 30-day statutory deadline for appeal. The district court
denied in turn certification of the December order for
interlocutory review, an essential prerequisite to this court’s
jurisdiction over an interlocutory appeal pursuant to 28 U.S.C.
§ 1292(b), and the statute does not contemplate appeals of such
denials. And the court denies mandamus review because there
was an alternative avenue for review (the collateral order appeal
that was filed too late).
4
In No. 20-7080, the court affirms the denial of relief
pursuant to Federal Rule of Civil Procedure 60(b). As the
district court concluded, the movant is not a “party or its legal
representative” for purposes of bringing a motion for relief
under Rule 60(b) to seek vacatur of the underlying default
judgment and the sanctions order against the Russian
Federation.
I.
Chabad Chasidism is a religious movement that traces its
roots to the 18th century when Rabbi Schneur Zalman
established religious and educational activities in Russia. A
series of 20th century geopolitical events — World War I, the
Bolshevik Revolution, the Russian Civil War, and World War
II — forced leaders of Chabad Chasidism to flee Russia, first
to Latvia, then to Poland, and ultimately to the United States.
In 1940, Agudas Chasidei Chabad of the United States
(“Chabad”) was incorporated under New York law and has
been attempting to recover materials taken from its religious
community.
In 2004, Chabad sued the Russian Federation and three of
its Russia-based affiliates (together, “Russia”) in the United
States District Court for the Central District of California. That
court transferred the case here. In 2006, the U.S. District Court
for the District of Columbia entered a partial judgment for
Russia, granting its motion to dismiss the claim to the Library
Materials. Agudas Chasidei Chabad of United States. v.
Russian Federation, 466 F. Supp. 2d 6, 31 (D.D.C. 2006). This
court reversed regarding the Library Materials and otherwise
affirmed. Agudas Chasidei Chabad of United States v. Russian
Federation, 528 F.3d 934, 955 (D.C. Cir. 2008) (“Chabad I”).
Upon returning to the district court, Russia eventually withdrew
from the case. The district court entered a default judgment
5
against Russia in 2010, ordering it to return the materials to
Chabad. Agudas Chasidei Chabad of United States v. Russian
Federation, 729 F. Supp. 2d 141, 148 (D.D.C. 2010). When
Russia failed to comply, the district court authorized Chabad to
enforce the default judgment by attachment, Agudas Chasidei
Chabad of United States v. Russian Federation, 798 F. Supp.
2d 260, 274 (D.D.C. 2011), and imposed daily fines to
encourage compliance, Agudas Chasidei Chabad of United
States v. Russian Federation, 915 F. Supp. 2d 148, 155 (D.D.C.
2013). In 2015, the district court entered a judgment for
Chabad in the amount of the accrued fines. Agudas Chasidei
Chabad of United States v. Russian Federation, 128 F. Supp.
3d 242, 249 (D.D.C. 2015).
Chabad thereafter served third-party post-judgment
subpoenas on a number of entities that it considered to have a
connection to the Russian Federation. As relevant, it sought
discovery from two entities located in the United States to
determine the nature of their relationship to the Russian
Federation and whether they held its attachable assets. In No.
20-7078, Chabad subpoenaed the State Development
Corporation VEB (hereinafter, “VEB”); in No. 20-7080,
Chabad subpoenaed Tenex-USA (hereinafter, “Tenam”). VEB
is a self-proclaimed “instrumentality” of the Russian
Federation, which asserts that it functions as the Russian
Federation’s equivalent to the U.S. “Export-Import Bank” and
alleges that it is organized under the Federal Laws of the
Russian Federation. Tenam is incorporated in the State of
Maryland and is wholly owned “indirectly” by the Russian
Federation. Decl. of Fletcher Newton of Non-Party Tenex
USA Inc. ¶¶ 6-8 (Apr. 11, 2019); Br. of Appellant at v
(corporate disclosure). Neither VEB nor Tenam participated in
the underlying litigation filed in 2004 by Chabad against
Russia.
6
Individually, VEB and Tenam filed motions to quash
Chabad’s subpoenas. The district court denied their motions.
Order, at 1 (Dec. 20, 2019); Mem. Order, at 8 (Dec. 20, 2019).
Neither VEB nor Tenam appealed the denial of its motion to
quash. Instead, VEB sought to file an interlocutory appeal
pursuant to 28 U.S.C. § 1292(b), alleging it had immunity from
suit that was independent of the Russian Federation’s
immunity. The district court denied VEB’s request. Order, at
1 (July 28, 2020). Tenam, instead, moved for reconsideration
pursuant to Federal Rule of Civil Procedure 60(b) of the district
court’s 2010 default judgment and its 2015 sanctions order,
arguing in part that the court had never addressed the Russian
Federation’s claim of immunity. The district court denied
Tenam’s motion based on the plain text of Rule 60(b) referring
to “a party or its legal representative” as proper persons to seek
Rule 60(b) relief. Tenam was neither. In addition, the district
court confirmed that its denial of immunity to the Russian
Federation had been affirmed by this court in Chabad I, 528
F.3d at 955. See Mem. Order, at 3 (July 28, 2020).
VEB appeals the district court’s denial of its motion to
certify an issue for interlocutory appeal pursuant to Section
1292(b), and, alternatively, requests this court to treat its appeal
as a petition for a writ of mandamus. It also seeks this court’s
review of the district court’s denial of its motion to quash.
Tenam appeals the denial of its Rule 60(b) motion. For the
following reasons this court dismisses VEB’s appeal for lack of
jurisdiction, denies its request for mandamus relief, and affirms
the district court in Tenam’s appeal.
II.
VEB’s appeal, No. 20-7078, invokes 28 U.S.C. § 1292(b),
which provides:
7
When a district judge, in making in a civil action an
order not otherwise appealable under this section,
shall be of the opinion that such order involves a
controlling question of law as to which there is
substantial ground for difference of opinion and that
an immediate appeal from the order may materially
advance the ultimate termination of the litigation, he
shall so state in writing in such order. The Court of
Appeals which would have jurisdiction of an appeal
of such action may thereupon, in its discretion, permit
an appeal to be taken from such order . . . .
There are two requirements for establishing appellate
jurisdiction pursuant to 28 U.S.C. § 1292(b). First, “the district
court must certify that the interlocutory order ‘involves a
controlling question of law as to which there is substantial
ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination
of the litigation.’” Microsoft Corp. v. Baker, 137 S. Ct. 1702,
1708 (2017). “Congress thus chose to confer on district courts
first line discretion to allow interlocutory appeals.” Kilburn v.
Socialist People’s Libyan Arab Jamahiriya, 376 F.3d 1123,
1136 (D.C. Cir. 2004) (quoting Swint v. Chambers Cnty.
Comm’n, 514 U.S. 35, 47 (1995)). A leading commentary has
explained:
Participation of the district court in certifying
permissive interlocutory appeals is the indispensable
first step of [a] Section 1292(b) appeal. . . . The initial
determination that appeal is desirable is confided to
the discretion of the district judge, relying on the
criteria specified in the statute. Many cases have ruled
that no appeal is available unless the district judge
enters the order, and they are right both in terms of the
8
clear language of the statute and the clear purpose of
its history.
16 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H.
COOPER, FEDERAL PRACTICE & PROCEDURE § 3929 (3d ed.
2021) (footnotes omitted). Second, “[t]he court of appeals may
then, ‘in its discretion, permit an appeal to be taken from such
order.’” Microsoft Corp., 137 S. Ct. at 1708 (quoting 28 U.S.C.
§ 1292(b)).
VEB’s appeal fails to meet the indispensable first
requirement of Section 1292(b). The district court denied
VEB’s motion for leave to file an interlocutory appeal. Section
1292(b) does not contemplate appellate review of a district
court’s threshold decision about whether to certify a question
for appeal. VEB also requests that this court treat the district
court’s denial of certification under Section 1292(b) as a
collateral order because that denial had the effect of abrogating
VEB’s immunity. In Briggs v. Goodwin, 569 F.2d 10, 26 n.14
(D.C. Cir. 1977); id. at 60 (Wilkey, J., dissenting), the court
unanimously agreed that “the collateral order doctrine was not
intended to be employed as a vehicle for appellate revision of
the essential determination committed by Congress to the
District Court.” The court therefore lacks jurisdiction to
consider VEB’s jurisdictional contention.
VEB’s alternative request to treat its appeal as a petition
for a writ of mandamus fares no better. Mandamus is a “drastic
and extraordinary remedy” and “only exceptional
circumstances amounting to a judicial usurpation of power or a
clear abuse of discretion will justify [its] invocation.” Belize
Soc. Dev. Ltd. v. Gov’t of Belize, 668 F.3d 724, 729 (D.C. Cir.
2012) (citations and internal quotation marks omitted). In
Cheney v. District Court for District of Columbia, 542 U.S.
367, 380-81 (2004), the Supreme Court identified three
9
requirements that must be satisfied: (1) there must be “no other
adequate means to attain the relief [the petitioner] desires”; (2)
“the petitioner must satisfy the burden of showing that [its]
right to issuance of the writ is clear and indisputable”; and (3)
“the issuing court, in the exercise of its discretion, must be
satisfied that the writ is appropriate under the circumstances.”
Id. at 380-81 (citations and internal quotation marks omitted).
Because VEB fails to meet the first requirement, its request for
mandamus relief must be denied.
VEB had the opportunity to raise its sovereign-immunity
claim through an appeal pursuant to 28 U.S.C. § 1291 of the
district court’s denial of its motion to quash. To the extent that
VEB states that it was unsure of whether it could challenge the
discovery subpoena through such an immunity defense, Oral
Arg., at 8:30-45; 10:20-11:50 (Oct. 12, 2021), its own citations
show that a jurisdictional objection is the type of issue that
could have been raised. For instance, in Phoenix Consulting
Inc. v. Republic of Angola, 216 F.3d 36, 38-39 (D.C. Cir. 2000),
cited by VEB, Angola relied on Section 1291 to appeal from
the district court’s denial of its motion to dismiss for lack of
subject matter jurisdiction under the Foreign Sovereign
Immunities Act.
VEB also requests that this court review the district court’s
denial of its motion to quash. VEB does not dispute that it
failed to timely appeal that denial. Rather, VEB maintains that
it could still seek review once another appealable order is
entered, namely the order denying certification pursuant to
Section 1292(b). The court has no occasion to consider that
argument because, for the reasons explained, the order denying
Section 1292(b) certification is not an appealable order.
10
III.
Turning to Tenam’s appeal, No. 20-7080, Federal Rule of
Civil Procedure 60(b) provides, in relevant part:
On motion and just terms, the court may relieve a
party or its legal representative from a final judgment,
order, or proceeding . . . .
Tenam did not appeal the district court’s denial of its
motion to quash Chabad’s subpoena and instead sought
vacatur, pursuant to Rule 60(b), of the 2010 default judgment
and the 2015 sanctions order against the Russian Federation.
The district court concluded that Tenam did not qualify as a
Rule 60(b) movant because it was neither “a party or its legal
representative” in the underlying litigation commenced by
Chabad in 2004. See Mem. Order, at 3.
In fact, Tenam did not participate in any way in the
underlying 2004 litigation resulting in the judgments it seeks to
have vacated. Neither does Tenam make a plausible argument
that it is even currently proceeding as the legal representative
of the Russian Federation. Because the Federal Rules of Civil
Procedure are to be accorded “their plain meaning,” Pavelic &
LeFlore v. Marvel Ent. Grp., 493 U.S. 120, 123 (1989), the
district court did not err in denying Tenam Rule 60(b) relief,
see Twelve John Does v. District of Columbia, 841 F.2d 1133,
1138 (D.C. Cir. 1988). The district court quoted a leading
hornbook stating: “The reference to a party’s legal
representative has been construed to refer solely to persons who
effectively stand in the shoes of a party, such as a trustee or
guardian.” Mem. Op., at 16 (Nov. 6. 2020) (quoting 11
CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY
KANE, FEDERAL PRACTICE AND PROCEDURE § 2852 (3d ed.
2012)). As this court recognized in Ratner v. Bakery &
11
Confectionery Workers International Union, 394 F.2d 780, 782
(D.C. Cir. 1968), “Rule 60(b) by its own terms is available only
to ‘a party or [its] legal representative’ seeking relief from a
final judgment.”
Tenam’s reliance on the narrow exception in Grace v. Bank
Leumi Trust Co., 443 F.3d 180, 188 (2d Cir. 2006), is
misplaced. In that case, the “plaintiffs enter[ed] into a
settlement agreement with a judgment-proof, pro se defendant
with the intent . . . to collect from a third party that allegedly
received fraudulent conveyances,” and “[the plaintiffs]
attempt[ed] to use the judgment as a predicate for a fraudulent
conveyance action against the third party.” Id. at 188. That is
far from the instant case, where no such fraud or deception of
the court occurred. The Grace exception therefore does not
apply.
Accordingly, appeal No. 20-7078 is dismissed for lack of
jurisdiction, and the district court’s judgment in appeal No. 20-
7080 is affirmed.