Crystallex International Corp v. Bolivarian Republic of Venezue

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

Nos. 21-1276, 21-1277, 21-1289

___________

CRYSTALLEX INTERNATIONAL CORPORATION

v.

BOLIVARIAN REPUBLIC OF VENEZUELA

CITGO PETROLEUM CORPORATION; PDV HOLDING,

INC.; PETROLEOS DE VENEZUELA, S.A.,

(Intervenors in D.C.)

Citgo Petroleum Corporation and PDV Holding, Inc.,

Appellants in No. 21-1276

Petróleos De Venezuela, S.A.,

Appellant in No. 21-1277

Bolivarian Republic of Venezuela

Appellant in No. 21-1289

____________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No. 1-17-mc-00151)

District Judge: Honorable Leonard P. Stark

____________

Argued: December 7, 2021

Before: SHWARTZ, PORTER, and FISHER,

Circuit Judges.

(Filed: January 18, 2022 )

____________

Nathan P. Eimer

Lisa S. Meyer

Gregory M. Schweizer

Eimer Stahl LLP

224 South Michigan Avenue

Suite 1100

Chicago, IL 60604

Robert E. Dunn

Eimer Stahl LLP

99 South Almaden Blvd.

Suite 642

San Jose, CA 95113

Counsel for Intervenor-Appellants CITGO Petroleum

Corporation and PDV Holding, Inc.

Joseph D. Pizzurro

Kevin A. Meehan

Julia Mosse

Juan O. Perla

Curtis Mallet-Prevost Colt & Mosle

2

101 Park Avenue

35th floor

New York, NY 10178

Counsel for Intervenor-Appellant Petróleos de

Venezuela, S.A.

Donald B. Verrilli, Jr. [ARGUED]

Brendan B. Gants

Elaine J. Goldenberg

Ginger D. Anders

Munger Tolles & Olson

601 Massachusetts Avenue, N.W.

Suite 500

Washington, D.C. 20001

Counsel for Defendant-Appellant Bolivarian Republic

of Venezuela

Robert L. Weigel

Rahim Moloo

Jason W. Myatt

Gibson, Dunn & Crutcher LLP

200 Park Avenue

New York, NY 10166

Miguel A. Estrada [ARGUED]

Lucas C. Townsend

Matthew S. Rozen

Gibson, Dunn & Crutcher LLP

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

3

Travis S. Hunter

Jeffrey L. Moye

Richards Layton & Finger

920 North King Street

One Rodney Square

Wilmington, DE 19801

Counsel for Plaintiff-Appellee Crystallex International

Corporation

____________

OPINION OF THE COURT

____________

PORTER, Circuit Judge.

In these consolidated appeals, the Bolivarian Republic

of Venezuela (“Venezuela”) and other appellants ask us to

intervene for a second time in ongoing execution proceedings

against Venezuela. Our jurisdiction to hear the appeals turns

on whether the District Court has reached a final decision. 28

U.S.C. § 1291. It has not, so we lack jurisdiction over these

appeals.

I

A decade ago, Venezuela expropriated valuable mining

rights owned by Crystallex International Corporation

(“Crystallex”), a Canadian mining company. Crystallex Int’l

Corp. v. Bolivarian Republic of Venezuela, 932 F.3d 126, 132

(3d Cir. 2019). After prevailing in an arbitration proceeding,

Crystallex asked a federal district court to confirm the award

and obtained a $1.4 billion judgment. Id. at 133. Crystallex has

since been trying to collect. Id. at 133–35.

4

In the execution action before the District Court,

Crystallex seeks to auction shares owned by Venezuela’s state-

owned energy company, Petróleos de Venezuela, S.A.

(“PDVSA”), to satisfy its judgment against Venezuela. Id. at

134. At stake are PDVSA’s shares in PDV Holding, Inc.

(“PDVH”), a Delaware holding company that owns CITGO

Petroleum Corporation (“CITGO”), a U.S. petroleum refiner.

Id. at 132.1 Venezuela and PDVSA oppose the auction, as a

sale would end PDVSA’s control over CITGO, one of

PDVSA’s most important assets in the United States.

A

In an earlier round of proceedings, Crystallex sought to

seize PDVH’s shares through a “writ of attachment” under

Delaware law, as allowed by Federal Rule of Civil Procedure

69(a). Id. at 134. PDVSA intervened and resisted the attach-

ment on grounds of sovereign immunity. Id.

The District Court rejected PDVSA’s defenses after

careful consideration. Crystallex Int’l Corp. v. Bolivarian

Republic of Venezuela, 333 F. Supp. 3d 380, 406, 418 (D. Del.

2018), aff’d and remanded, 932 F.3d 126 (3d Cir. 2019).

Among other things, the District Court held that it had ancillary

jurisdiction to enforce the judgment against Venezuela in this

execution proceeding, and that PDVSA could not assert its

own sovereign immunity as a defense because PDVSA was

Venezuela’s alter ego under federal common law. Crystallex

1

PDVSA, a Venezuelan corporation, wholly owns PDVH, a

Delaware holding corporation, which wholly owns CITGO

Holding, Inc., which wholly owns CITGO Petroleum.

5

Int’l Corp., 333 F. Supp. 3d at 399, 406. In other words, while

PDVSA, not Venezuela, is the nominal owner of the PDVH

shares, the District Court concluded that given Venezuela’s

history of extensive control over PDVSA, PDVSA is

Venezuela for purposes of this suit. Id. at 393, 399. Some days

later, the District Court issued the writ of attachment, ordering

PDVH’s registered agent to retain the stock until further order.

PDVSA appealed, and Venezuela intervened.

Crystallex Int’l Corp., 932 F.3d at 134. In that earlier appeal,

we agreed with the District Court’s reasoning, rejected all of

PDVSA’s immunity defenses, and affirmed the District

Court’s orders, including the writ of attachment. Id. at 151–52.

The Supreme Court denied certiorari, and the case returned to

District Court. Bolivarian Republic of Venezuela v. Crystallex

Int’l Corp., 140 S. Ct. 2762 (2020).

B

While the case was pending on appeal, political condi-

tions in Venezuela changed. In January 2019, following a

fraudulent reelection bid a year earlier, Nicolás Maduro tried

to install himself as President of Venezuela for a second term.

The Venezuelan National Assembly, an elected body, invoked

Venezuela’s constitution and declared Juan Guaidó interim

president. The United States recognized Juan Guaidó as the

legitimate interim President of Venezuela, but Maduro still

clings to power.

“[I]n light of the continued usurpation of power by

Nicolas Maduro,” then-President Trump broadened existing

economic sanctions against Venezuela and blocked any trans-

fer or dealing in PDVSA’s property. Exec. Order No. 13,884,

6

§§ 1, 6 (Aug. 5, 2019), 84 Fed. Reg. 38,843 (Aug. 7, 2019).

Implementing this order, the Office of Foreign Assets Control

(“OFAC”), an agency that administers U.S. economic sanc-

tions, published the following rule:

[T]he entry into a settlement agreement or the

enforcement of any lien, judgment, arbitral

award, decree, or other order through execution,

garnishment, or other judicial process purporting

to transfer or otherwise alter or affect property or

interests in property blocked pursuant to [regula-

tion], is prohibited unless authorized pursuant to

a specific license issued by OFAC.

84 Fed. Reg. 64,415, 64,417 (Nov. 22, 2019), codified at 31

C.F.R. § 591.407. OFAC’s rule looms large in this case.

C

On remand, PDVSA, now joined by PDVH as the gar-

nishee and CITGO as an intervenor, asked the District Court to

quash the writ of attachment. In an argument that raised the

District Court’s sense of déjà vu, they sought to litigate the alter

ego status of PDVSA once again, arguing this time that

Delaware alter ego law controlled.2 Delaware law requires

showing fraud—not just extensive control—to seize the prop-

2

Before it lost its prior appeal to this Court, PDVSA conceded

that “the legal standard for alter-ego . . . applied in this case [is]

federal common law.” J.A. 144; see also First Nat’l City Bank

v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611,

622 n.11 (1983) (holding that federal common law, not state

law, governs the alter ego status of foreign instrumentalities).

7

erty of a non-debtor like PDVSA. See Crosse v. BCBSD, Inc.,

836 A.2d 492, 497 (Del. 2003) (“To state a ‘veil-piercing

claim,’ the plaintiff must plead facts supporting an inference

that the corporation, through its alter-ego, has created a sham

entity designed to defraud investors and creditors.”). And

Crystallex, they argued, has not made that showing.

Crystallex, on the other hand, viewed the attachment’s

validity as a settled matter and moved for a contingent auction

of PDVSA’s shares pending a license from OFAC. Venezuela,

PDVSA, and PDVH opposed, arguing that OFAC’s regula-

tions prohibit a contingent sale and urging the District Court to

stay sale proceedings until Crystallex obtains an OFAC

license.

D

On the eve of the District Court’s hearing on the pend-

ing motions, the United States filed a statement of interest urg-

ing the District Court not to authorize a contingent sale of the

shares. Elliot Abrams, the U.S. Special Representative for

Venezuela at the time, filed a letter asserting that “immediate

steps toward a conditional sale” of CITGO would damage the

legitimacy of the Guaidó government. J.A. 309. Abrams

explained that CITGO’s “loss through a forced sale in a U.S.

court would be a great political victory for the Maduro

regime,” as Maduro could blame the Guaidó government for

the loss of PDVSA assets on U.S. soil. J.A. 309. This, Abrams

said, would “greatly” harm U.S. foreign policy interests.

J.A. 309.

The United States, through OFAC, separately argued

that “U.S. sanctions involving Venezuela require a license for

8

any sale of PDVH shares.” J.A. 300. The United States noted

that OFAC was then considering Crystallex’s specific license

application and asked the District Court to “refrain from

authorizing an auction and sale of Venezuela’s largest and

most important foreign asset while Crystallex’s licensing

application is pending before OFAC.” J.A. 304.3

At the hearing on the pending motions, the United

States clarified its position in response to the District Court’s

questions. It assured the District Court that “the United States

[w]asn’t tak[ing] the position that [the District Court was]

blocked from moving forward” and that “the Court can do

whatever it wants.” J.A. 523. It also clarified, though, that

“Crystallex might well be in violation of OFAC regulations if

it takes these proposed steps.” J.A. 523.

E

On January 14, 2021, the District Court acted on the

pending motions. The District Court refused to quash the

attachment. In the District Court’s view, it had already decided

the alter ego issue and issued the attachment, and we had

affirmed, so (1) issue preclusion prevented PDVSA and its

subsidiaries from relitigating the validity of the attachment

under Delaware law, and, in any event, (2) the state-law chal-

lenge was untimely because PDVSA and its subsidiaries had

failed to preserve the issue after an adequate opportunity to do

so. Crystallex Int’l Corp. v. Bolivarian Republic of Venezuela,

3

While these appeals were pending OFAC denied Crystallex’s

license application, without prejudice if foreign policy

considerations change.

9

No. 17-mc-151-LPS, 2021 WL 129803, at *8–11, *12–15 (D.

Del. Jan. 14, 2021).

The District Court also granted Crystallex’s motion in

part. The District Court decided “to set up the sales procedures

and then to follow them to the maximum extent that can be

accomplished without a specific license from OFAC.” Id. at

*16. The District Court noted, however, that “[a]ll parties agree

that, under current law and policy, a sale of PDVH shares can-

not be completed without a specific OFAC license.” Id. With

that understanding, the District Court decided that “all the pre-

paratory steps that can be taken without such a license can, and

should, be taken.” Id. The District Court also “set out some of

the contours of the sales procedures that it will follow”—

including appointing a special master to aid the District Court

in designing procedures for an eventual judicial sale. Id. at

*17–18.

Venezuela, PDVSA, PDVH, and CITGO appealed the

order.

II

We have “jurisdiction of appeals from all final decisions

of the district courts.” 28 U.S.C. § 1291. “A final decision ends

the litigation on the merits and leaves nothing for the court to

do but execute the judgment.” Hall v. Hall, 138 S. Ct. 1118,

1123–24 (2018) (quotation marks omitted).

The Venezuela appellants seek review of two decisions.

They first ask us to review the District Court’s refusal to quash

the attachment, arguing that the attachment must be quashed

because it conflicts with Delaware alter ego law. They also ask

10

us to review the District Court’s decision to determine final

sale procedures in the future, arguing that it conflicts with

OFAC regulations and disregards U.S. foreign policy interests.

Neither decision is final, so we lack authority to entertain these

arguments.

A

We first address whether the District Court’s refusal to

quash the attachment is a final decision. We consider—and

reject—Crystallex’s argument that refusals to quash post-

judgment attachments are never final. We hold instead that an

attachment in aid of execution, or a refusal to quash one, is

final when “all that remains is for a non-judicial officer to take

and dispose of the defendant’s property.” United States v.

Parker, 927 F.3d 374, 380 (5th Cir. 2019). We lack jurisdiction

over the refusal to quash under that practical test because the

litigation remains ongoing. The District Court must, at the very

least, still rule on pending legal objections to the special

master’s recommended judicial sale procedures. The District

Court’s judicial involvement is ongoing, so the refusal to quash

the attachment is interlocutory. Venezuela and other appellants

will have an adequate opportunity to appeal the refusal to quash

the attachment at a later stage, so there is no practical finality.

1

a

“The archetypal final decision is one that triggers the

entry of judgment.” Hall, 138 S. Ct. at 1124 (quotation marks

and alterations omitted). When a party files an appeal from a

final decision disposing of all claims, our jurisdiction

11

ordinarily presents no difficult question. Id. Orders that

precede a final disposition of claims are, on the other hand,

usually interlocutory and unappealable unless Congress says

otherwise. See 28 U.S.C. § 1292. “The general rule [is] that a

party is entitled to a single appeal, to be deferred until final

judgment has been entered.” Digital Equip. Corp. v. Desktop

Direct, Inc., 511 U.S. 863, 868 (1994) (citation omitted). Faith-

ful adherence to the single appeal rule promotes clear jurisdic-

tional rules, allows district judges room to manage complex lit-

igation, and avoids the costs of piecemeal appeals.

The single appeal rule prevents appellate review of

many important litigation decisions that affect property rights.

That includes prejudgment attachments or similar remedies

under Rule 64 “to secure satisfaction of the potential judg-

ment.” Fed. R. Civ. P. 64(a) (emphasis added). A prejudgment

“[a]ttachment is an ancillary remedy by which a plaintiff

acquires a lien upon the property of a defendant in order to

obtain satisfaction of a judgment that the plaintiff may ulti-

mately obtain at the conclusion of the litigation.” Mitsubishi

Int’l Corp. v. Cardinal Textile Sales, Inc., 14 F.3d 1507, 1521

(11th Cir. 1994). These kinds of remedies are “intended to pre-

serve the subject-matter in dispute from waste or dilapidation,

and to keep it within control of the court until the rights of the

parties concerned can be adjudicated by a final decree.”

Forgay v. Conrad, 47 U.S. (6 How.) 201, 204–05 (1848). They

are necessarily “interlocutory,” as they merely allow litigation

to continue toward a final decision. Id. at 204.

For this reason, orders granting or refusing to vacate

prejudgment attachments have long been held unappealable. In

Cushing v. Laird, the Supreme Court held that a foreign attach-

ment on a vessel was not final, as an “attachment is auxiliary

12

and incidental to the principal cause,” which was yet to be liti-

gated. 107 U.S. 69, 76 (1883).4 “Neither the principal defend-

ant nor the garnishees can appeal until after a final decree

against them.” Id. The Supreme Court later cited Cushing with

approval, noting that unlike in a case denying an attachment,

“where an attachment is upheld pending determination of the

principal claim . . . the rights of all the parties can be ade-

quately protected while the litigation on the main claim pro-

ceeds.” Swift & Co. Packers v. Compania Colombiana Del

Caribe, S.A., 339 U.S. 684, 689 (1950).

Appeals from prejudgment attachments and similar

remedies have “shatter[ed] on the rock” of these Supreme

Court precedents. West v. Zurhorst, 425 F.2d 919, 921 (2d Cir.

1970) (Friendly, J.). In United States v. Pearce’s Estate, for

example, we held a “sequestration order” seizing stock—a

device we said was “analogous to foreign attachment at law”—

unappealable. 498 F.2d 847, 849 (3d Cir. 1974) (en banc). We

found no finality because liability was still to be adjudicated

and “[i]n essence, all that ha[d] happened to date is that shares

of stock ha[d] been seized.” Id. at 850. In Petroleos Mexicanos

Refinacion v. M/T King A (Ex-Tbilisi), we similarly held a

refusal to vacate a “warrant of arrest” for a vessel—another

device analogous to attachment—not final, because “the arrest

itself is not the immediate precursor to execution of a judg-

ment.” 377 F.3d 329, 334 (3d Cir. 2004). The refusal to vacate

the warrant of arrest was also unappealable under the

collateral-order doctrine, we held, based on “our long-

4

The purposes of a foreign attachment are “to secure a

respondent’s appearance and to assure satisfaction in case the

suit is successful.” Swift & Co. Packers v. Compania

Colombiana Del Caribe, S.A., 339 U.S. 684, 693 (1950).

13

established precedent from an analogous area”—cases involv-

ing “prejudgment attachments.” Id. at 336 (emphasis added).

Thus, orders granting or refusing to vacate Rule 64 remedies

are not final decisions and immediate appeals are barred unless

the law allows an interlocutory appeal. See, e.g., 28 U.S.C.

§ 1292(b).

Crystallex asks us to extend these prejudgment prece-

dents to post-judgment attachments in aid of execution under

Rule 69(a). Fed. R. Civ. P. 69(a). But post-judgment attach-

ments are different. Post-judgment attachments are used to sat-

isfy a final judgment by seizing and selling property. They

come after, not before, an archetypal final decision. So they do

not lend themselves to the single appeal rule we usually apply

to property seizures that precede a final decision on liability,

including prejudgment attachments under Rule 64. In an exe-

cution proceeding, there has already been at least one oppor-

tunity to appeal the final decision on the merits. There cannot

be just one “final decision.”

The better analogy is not attachments under Rule 64, but

other execution process awarded under Rule 69 or Rule 70, like

a writ of execution directing “the marshal to not only levy but

also to sell the property.” Parker, 927 F.3d at 380. Like a writ

of execution and unlike a prejudgment attachment, a post-

judgment attachment may sometimes be “the immediate pre-

cursor to execution of a judgment.” Petroleos Mexicanos, 377

F.3d at 334. When an execution sale immediately follows an

attachment, the district court’s judicial involvement in the civil

action is over, and all that is left is a ministerial superintending

of the sale. These kinds of post-judgment decisions are “often

appealable” under our precedent. Isidor Paiewonsky Assocs.,

Inc. v. Sharp Props., Inc., 998 F.2d 145, 149 (3d Cir. 1993).

14

b

Crystallex argues, however, that nineteenth-century

Supreme Court precedent requires us to hold that refusals to

quash attachments are never final. Crystallex’s reading of prec-

edent is anachronistic, so we decline to follow that path.

Crystallex’s main authority is Boyle v. Zacharie (Boyle

II), 31 U.S. (6 Pet.) 648 (1832) (Story, J.). In Boyle, the U.S.

circuit court for the district of Maryland—a trial court in diver-

sity cases—entered a money judgment for Louisiana creditors

against Hugh Boyle, a Baltimore merchant. Boyle v. Zacharie

(Boyle I), 31 U.S. (6 Pet.) 635, 641–42 (1832) (Story, J.).5 The

court ordered an attachment, and the U.S. marshal seized

Boyle’s ship, the General Smith. Id. at 642. The court later

issued “a writ of venditioni exponas”—an order requiring the

U.S. marshal to sell the General Smith. Boyle II, 31 U.S. at 655.

Boyle moved to quash the sale order, arguing that a pending

proceeding in equity required staying any sale, but the court

denied Boyle’s motion to quash. Id. Boyle then took his case

to the Supreme Court under section 22 of the Judiciary Act of

1789, authorizing a “writ of error” from “final judgments and

decrees.” Judiciary Act of 1789, ch. 20 § 22, 1 Stat. 73, 84; see

also Boyle II, 31 U.S. at 656.

The Supreme Court addressed “whether a writ of error”

could be brought to review the refusal to quash the sale “upon

mere motion.” Boyle II, 31 U.S. at 656. “In modern times,”

Justice Story noted, “courts of law will often interfere by sum-

5

Under the Judiciary Act of 1789, U.S. circuit courts had

original jurisdiction in diversity of citizenship cases like Boyle.

Judiciary Act of 1789, ch. 20, 1789, § 11, 1 Stat. 73, 78.

15

mary proceedings on motion, and quash an execution errone-

ously awarded,” instead of correcting a judgment through for-

mal post-judgment writs. Id. But quashing execution by sum-

mary motion was a matter of judicial “discretion,” not a legal

“judgment.” Id. at 657. As Justice Story explained:

We consider all motions of this sort to quash

executions, as addressed to the sound discretion

of the court; and as a summary relief, which the

court is not compellable to allow. The party is

deprived of no right by the refusal; and he is at

full liberty to redress his grievance by writ of

error [coram nobis], or audita querela; or other

remedy known to the common law. The refusal

to quash, is not in the sense of the common law

a judgment, much less a final judgment. It is a

mere interlocutory order.

Id.6 Boyle, properly understood, was tied to review by writ of

error. The writ of error was far more limited than the civil

appeal. Chief Justice Oliver Ellsworth, the primary author of

the Judiciary Act, explained it this way: “An appeal is a process

of civil law origin, and removes a cause entirely; subjecting the

6

An audita querela was a suit by a judgment debtor to present

a defense to a judgment that could not have been raised earlier,

and coram nobis was similar. See James Wm. Moore &

Elizabeth B.A. Rogers, Federal Relief from Civil Judgments,

55 Yale L.J. 623, 659–74 (1946) (explaining the writs). The

appellate writ of error should not be confused with the post-

judgment writ of error coram nobis, as coram nobis was a writ

asking a court to set aside its own judgment because of an error

of fact. Id. at 669.

16

fact as well as the law, to a review and re-trial: but a writ of

error is a process of common law origin, and it removes noth-

ing for re-examination but the law.” Wiscart v. D’Auchy, 3 U.S.

(1 Dall.) 321, 327 (1796). One of the writ of error’s settled lim-

itations was that it could not be used to review discretionary

orders. See Boyle II, 31 U.S. at 657 (citing cases). As Chancel-

lor James Kent put it, “[t]here seems to be no position more

uniformly admitted, than that [a writ of] error will not lie on a

matter resting in discretion.” Clason v. Shotwell, 12 Johns. 31,

49 (N.Y. 1814); see also Alfred Conkling, A Treatise on the

Organization and Practice of the Courts of the United States

672 (3d ed. 1856) (“A writ of error will not . . . lie for an

alleged error in deciding upon an application addressed to the

discretion of the court . . .”).

By the time Boyle was decided, the New York Supreme

Court had already concluded that orders on motions to quash

execution were discretionary and so unreviewable by writ of

error. Brooks v. Hunt, 17 Johns. 484, 486–87 (N.Y. Sup. Ct.

1820). Justice Story agreed. Under the forms of action, “sum-

mary proceedings on motion” to quash execution are decided

“in the exercise of [] sound discretion,” not as of matter of legal

right. Boyle II, 31 U.S. at 656. At the time, “it [was] by no

means uncommon for the court to refuse to interfere upon

motion,” even “where the [execution] proceedings [were]

clearly erroneous,” and require the filing of a post-judgment

writ. Id.

Courts had good reason to refuse meritorious motions

to quash. Unlike post-judgment writs, orders on motion to

quash execution did not vacate judgments and had little final-

ity. McCargo v. Chapman, 61 U.S. (20 How.) 555, 556 (1857).

Because orders on motions to quash execution did not have

17

preclusive effect on future executions, review of these orders

by writ of error would not settle legal rights with finality. Id. at

556–57. Boyle must be understood in this procedural context.

Having placed Boyle in its proper procedural context,

we now address Crystallex’s reading of Boyle. Crystallex’s

argument that Boyle and its progeny hold that refusals to quash

attachments are unappealable has no basis in Boyle. Boyle, for

starters, involved a sale order, not an attachment. Boyle II, 31

U.S. at 655 (“[N]o error is assigned on the original judgment,

or on the award of the [attachment.]”). The other authority cited

by Crystallex is Loeber v. Schroeder, 149 U.S. 580 (1893). But

Loeber merely applied Boyle’s rule that “an order overruling a

motion to quash an execution”—in that case a post-judgment

attachment—was not a judgment reviewable by writ of error.

Id. at 584–85 (citing Boyle II, 31 U.S. at 657); see also Toland

v. Sprague, 37 U.S. (12 Pet.) 300, 331–32 (1838) (same). So

Loeber adds nothing to Boyle.

Moreover, contrary to Crystallex’s suggestion, nothing

in Boyle or Loeber turned on the outcome being a refusal to

quash. In McCargo, for example, the Supreme Court had no

difficulty applying Boyle’s holding to dismiss a writ of error

brought from an order quashing a post-judgment attachment.

McCargo, 61 U.S. at 557 (“In this case, the Circuit Court

quashed the execution.”). Nor did Boyle categorically forbid a

writ of error. Boyle said courts could review an “erroneous”

execution award. See Boyle II, 31 U.S. at 656 (“If, therefore,

there is an erroneous award of execution, not warranted by the

judgment, or erroneous proceedings under the execution, a writ

of error will lie to redress the grievance.”); see also Johnson v.

Harvey, 4 Mass. (4 Tyng) 483, 484 (1808) (providing exam-

ples of when a writ of error could be brought against execu-

18

tion). Neither Boyle nor Loeber involved a situation where, as

here, a party complains that execution was erroneously

awarded against the wrong party, and Crystallex cited no anal-

ogous caselaw. This alone distinguishes those cases.

Boyle and Loeber, in short, turned on the limited scope

of the writ of error. But Congress “abolished” the writ of error

in 1928 and replaced it with the appeal. Act of Jan. 31, 1928,

ch. 14, 45 Stat. 54 (“That the writ or error in cases, civil and

criminal, is abolished. All relief which heretofore could be

obtained by writ of error shall hereafter be obtainable by

appeal.”); Erwin C. Surrency, History of the Federal Courts

305 (2d ed. 2002) (noting the demise of distinctions between

the writ of error and the appeal). Appeals were not new. Before

1928, appeals were common on the equity side of federal

courts and allowed for broad review of “facts as well as law”

on appeal from a final decree. Buessel v. United States, 258 F.

811, 814 (2d Cir. 1919). Post-judgment decrees in equity were

reviewable for abuse even if they were discretionary. In re

Farmers’ Loan & Tr. Co., 129 U.S. 206, 215–16 (1889).

Whatever substantive distinction remained between

appeals in equity and law after 1928 ended in 1938. The Fed-

eral Rules of Civil Procedure merged law and equity by replac-

ing the forms of action and bills with “one form of action—the

civil action.” Fed. R. Civ. P. 2. And the post-judgment writs

referenced in Boyle were “abolished” by Rule 60 a few years

later. Fed. R. Civ. P. 60(e). Civil actions and motions, not writs

“shrouded in ancient lore and mystery,” are now the exclusive

way to seek relief from execution proceedings in federal dis-

trict court. Advisory Comm. on Rules of Civ. Proc., Report of

the Proposed Amendments to Rules of Civil Procedure for the

District Courts of the United States (1946), reprinted in 5

19

F.R.D. 433, 476. While rules of procedure cannot alter our

jurisdiction, “many of the procedural rules of the district courts

unquestionably affect [our] jurisdiction” by altering when dis-

trict court orders can be considered final decisions. Bendix

Aviation Corp. v. Glass, 195 F.2d 267, 271 (3d Cir. 1952) (en

banc) (upholding Rule 54(b)).

Crystallex does not explain why Boyle and Loeber have

continued relevance under modern civil procedure. As

Crystallex acknowledges, courts of appeals often hear appeals

from final sale orders—like the order at issue in Boyle. “[P]ost-

judgment orders are often appealable,” we have said. Sharp

Props., 998 F.2d at 149. Or as the Fifth Circuit recently

explained, “[o]rders permitting enforcement of judgments or

requiring defendants to transfer property to plaintiffs might not

take the form of judgments, but they certainly dispose of claims

to that property. And these types of orders have long been

treated as final and appealable.” Hewlett-Packard Co. v.

Quanta Storage, Inc., 961 F.3d 731, 741–42 (5th Cir. 2020)

(citing cases, including Boyle II, 31 U.S. at 656).

Given the merger of law and equity and the abolition of

the forms of action, our appellate jurisdiction is not limited to

those “judgments” that would have been reviewable by writ of

error in the law courts of Westminster. We have allowed

appeals from many orders that likely would not have been

“judgments” under the technical rules of the writ of error. In

Sharp Properties, for example, we held that a writ of assistance

ejecting a non-party tenant under Rule 70 was an appealable

final decision, not an unappealable “ministerial or administra-

tive act.” 998 F.2d at 151. Even more telling, the Supreme

Court now allows appeals from orders vacating prejudgment

attachments by motion, which may well have been

20

unreviewable by writ of error at common law. Compare

Compania Colombiana Del Caribe, 339 U.S. at 688–89

(allowing appeal from an order vacating foreign attachment by

motion), with McCargo, 61 U.S. at 558 (rejecting a writ of

error from an order quashing attachment by motion). And as

we have explained, Boyle merely applied the general rule that

discretionary orders were unreviewable by writ of error.

Clason, 12 Johns. at 49. But the federal reporters are chock-

full of appeals reviewing orders for abuse of discretion. Those

precedents sit uneasily with Boyle and Loeber.

By contrast, there are no well-reasoned decisions

applying Boyle and Loeber to reject an appeal after 1938. See

15B Charles Alan Wright & Arthur R. Miller, Federal Practice

and Procedure § 3916 n.8 (2d ed. 1992) (“Wright & Miller”)

(characterizing Boyle as the “old view” of the appealability of

execution orders). The few decisions that apply Boyle or

Loeber to dismiss appeals are perfunctory. See, e.g., United

States v. Moore, 878 F.2d 331, 331 (9th Cir. 1989) (per curiam)

(relying on Loeber to dismiss without explanation); Steccone

v. Morse-Starrett Prods. Co., 191 F.2d 197, 199 (9th Cir. 1951)

(same). This silence speaks volumes. Supreme Court decisions

under the First Judiciary Act are binding and relevant, but we

see no persuasive reason why Boyle’s understanding of the writ

of error and the discretionary nature of motions to quash exe-

cution under the forms of action compels dismissal of these

appeals, and Crystallex offers none. In the contest between the

writ of error and the civil appeal, as in other areas, “[t]he war

between law and equity is over. Equity won.” Douglas

Laycock, The Triumph of Equity, 56 Law & Contemp. Probs.

53, 53 (1993).

21

2

We apply our “practical finality” approach to these

post-judgment orders. Sharp Properties, 998 F.2d at 150. Prac-

tical finality, however, does not mean piecemeal review of

every post-judgment order en route to a final sale. “Appeal

ordinarily should not be available as to any particular post-

judgment proceeding before the trial court has reached its final

disposition.” Wright & Miller § 3916. Generally, the “disposi-

tive question, then, is whether there is anything left for the dis-

trict court to do with respect to execution of the judgment.”

Parker, 927 F.3d at 380. An execution proceeding is final when

“all that remains is for a non-judicial officer to take and dispose

of the defendant’s property.” Id. Or as we said in Sharp

Properties, a post-judgment order is final when it “leaves noth-

ing to be done in the cause save to superintend, ministerially,

the execution of the decree.” 998 F.2d at 150 (quoting In Re

Moody, 825 F.2d 81, 85 n.5 (5th Cir. 1987)). The key word is

“ministerially.” This practical test requires us to determine

whether the District Court’s judicial role is over.

Applying our test, the District Court’s judicial role in

this civil action is far from over. The District Court is proceed-

ing through a judicial sale, not an execution sale, and the sale

process raises several legal questions. To decide judicial sale

procedures, for example, the District Court first needs to rule

on objections to the special master’s proposed judicial sale pro-

cedures. The parties have raised multiple legal objections to

this proposal and continue to brief legal issues. Venezuela, for

example, submitted a district court brief a day after we held

oral argument in this appeal arguing that a contingent auction

pending an OFAC license would violate sanctions regulations.

That is a legal objection calling for the District Court’s judg-

22

ment, not just its ministerial superintendence. More appeals

will likely follow the final order on sale procedures.

Appellants raise several pragmatic arguments for final-

ity, but none are persuasive.

Appellants first argue that the pending judicial proceed-

ings are irrelevant to finality because they involve the sale pro-

cess. The refusal to quash, they say, settled the sole remaining

threshold objection to the sale of PDVSA’s property as a non-

party to the money judgment. In their view, there is no practical

reason to defer review of this separate threshold objection. But

preventing the “harassment and cost of a succession of separate

appeals”—as the law requires—is a fine practical reason to

defer review. Cobbledick v. United States, 309 U.S. 323, 325

(1940). Threshold affirmative dispositive defenses to liability

(like a statute of limitations) are often rejected in interlocutory

orders, but their rejection is not immediately appealable.

Digital Equip. Corp., 511 U.S. at 873. Disappointed litigants

who lose on threshold affirmative defenses must ordinarily

wait “until the end of proceedings before gaining appellate

review.” Van Cauwenberghe v. Biard, 486 U.S. 517, 524

(1988). So too here.

Appellants also argue that further proceedings would be

wasteful if we later hold the attachment invalid. Perhaps. “But

the possibility that a ruling may be erroneous and may impose

additional litigation expense is not sufficient to set aside the

finality requirement imposed by Congress.” Richardson-

Merrell, Inc. v. Koller, 472 U.S. 424, 436 (1985). This rule is

sensible, as we affirm district courts far more often than we

reverse them.

23

Appellants’ core argument, however, is that we should

discount ordinary principles of finality because post-judgment

decisions are more permissive of piecemeal appeals. Sharp

Properties and other decisions of our Court lend some support

to this argument. We have said that “when supplementary post-

judgment orders are involved . . . the policy against . . . avoid-

ing piecemeal review [is] less likely to be decisive.” Sharp

Properties, 998 F.2d at 150 (quoting Ohntrup v. Firearms Ctr.,

Inc., 802 F.2d 676, 678 (3d Cir. 1986)). And in Ohntrup, we

held a post-judgment denial of a motion to withdraw as counsel

immediately appealable even though discovery proceedings in

aid of execution remained pending before the District Court.

Ohntrup, 802 F.2d at 678. But critically, we granted review in

that case only because if the lawyers involved had to wait until

the execution proceedings were over, they “would . . . be

effectively denied meaningful review” of their motion to with-

draw. Id.

Unlike in Ohntrup, Appellants have not shown they will

be denied meaningful appellate review unless we intervene

now. Appellants argue that unless we intervene now, they will

be irreparably injured by a fire sale. But that injury will only

materialize if a contingent auction takes place and they ulti-

mately lose on appeal, so they have not shown an effective

denial of appellate review. If we allowed piecemeal appeals to

prevent the risk of mere financial loss occasioned by litigation

decisions, “Congress’s final decision rule would end up a

pretty puny one.” Digital Equip. Corp., 511 U.S. at 872.

The risk of a fire sale is also speculative. We do not yet

know whether the District Court will order a contingent auction

pending OFAC approval (an issue Venezuela continues to vig-

orously litigate before the District Court), so we have no basis

24

to assume that a contingent auction will happen anytime soon.

Far from it, the special master has recommended against com-

mencing the marketing and bidding process until OFAC’s

position materially changes. Even if the District Court rejects

this recommendation and orders a contingent auction, the

District Court appears to agree that OFAC’s approval would

be necessary to complete the transaction and transfer title.

Nor are appellants without a proper remedy: Once the

District Court enters a final decision, they may seek a stay of

execution pending appeal, preventing an auction from going

forward. Fed. R. Civ. P. 62(b), (e); Fed. R. App. P. 8. Stays,

not judge-made equitable or foreign-policy exceptions to the

jurisdictional requirement of finality, are the proper way to

protect appellants from irreparable injury while they raise their

legal challenges on appeal.

3

In a conclusory footnote, appellants also argue that the

refusal to quash is appealable as a collateral order. This argu-

ment lacks merit for the same reason as their finality argument:

appellants have not shown that refusals to quash an attachment

are effectively unreviewable on appeal later. See Mohawk

Indus., Inc. v. Carpenter, 558 U.S. 100, 108–09 (2009) (an

appellant must show that “deferring review until final judg-

ment so imperils the interest as to justify the cost of allowing

immediate appeal of the entire class of relevant orders”).

The refusal to quash is not a final decision.

25

B

Venezuela separately appeals the District Court’s deci-

sion to “set up the sales procedures and then to follow them to

the maximum extent that can be accomplished without a spe-

cific license from OFAC.” Crystallex Int’l Corp., 2021 WL

129803, at *16. This preliminary order—a decision to

determine sale procedures in the future with the advice of a

special master—is interlocutory and unappealable.

1

Before addressing our jurisdiction, we pause to explain

what the District Court did not decide. Appellants say that the

preliminary decision on sale procedures “contemplates a con-

tingent auction” without prior OFAC approval. Appellants’

Opening Br. 44 (emphasis added); see also Oral Argument at

14:10–14:44 (asserting the decision requires steps toward a

contingent auction). But saying that an order contemplates a

contingent auction is an admission that the order is tentative

and not final on at least that disputed issue. The District Court

docket confirms this. In its briefing before the District Court,

Venezuela continues to litigate the legality of a contingent auc-

tion and insists that the District Court has yet to decide whether

to approve a contingent auction.

Our own review of the January 2021 order confirms that

the District Court has not approved a contingent auction. The

District Court said it would go only as far as OFAC’s regula-

tions allow and acknowledged that OFAC’s approval will be

needed to complete a sale. The final sale procedures order, not

the preliminary decision on appeal, will govern if, when, and

26

how, a sale can begin and end.7 To be sure, the District Court

did not foreclose the possibility of a contingent auction pend-

ing OFAC’s approval. But neither did it endorse that possibil-

ity. That issue will be decided in the final sale procedures

order, with the benefit of the special master’s recommenda-

tions after further briefing. Venezuela’s assertion that a contin-

gent auction would violate OFAC’s regulations is therefore

unripe for resolution in this appeal. Toilet Goods Ass’n, Inc. v.

Gardner, 387 U.S. 158, 162–63 (1967). We reject Venezuela’s

attempt to inject this premature issue into this appeal.

2

The only decision before us, then, is the District Court’s

decision to begin the process for deciding sale procedures.

Venezuela argues that we have jurisdiction to review this deci-

sion under the collateral-order doctrine. We do not.

7

Appellants read a contingent-sale requirement into the

District Court’s decision to allow “[t]he winning bidder . . . a

reasonable amount of time to pursue any necessary and

desirable regulatory approvals.” Crystallex Int’l Corp. v.

Bolivarian Republic of Venezuela, No. 17-mc-151-LPS, 2021

WL 129803, at *17 (D. Del. Jan. 14, 2021). But this part of the

order refers to regulatory approvals generally, not OFAC

approvals. OFAC is far from the only regulator in Washington,

D.C. As Crystallex explained, a winning bidder may need

merger approval from the Federal Trade Commission and the

Department of Justice before closing the acquisition. See 15

U.S.C. § 18a. Similarly, bidders from outside the United States

may need approval from the Committee on Foreign Investment

in the United States. See 50 U.S.C. § 4565.

27

The collateral-order doctrine is a narrow exception from

the general rule that a party is entitled to a single appeal.

Digital Equip. Corp., 511 U.S. at 868. It allows appeals from a

“small class” of orders “which finally determine claims of right

separable from, and collateral to, rights asserted in the action,

too important to be denied review.” Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 546 (1949). “That small category

includes only decisions that are conclusive, that resolve

important questions separate from the merits, and that are

effectively unreviewable on appeal from the final judgment in

the underlying action.” Swint v. Chambers Cnty. Comm’n, 514

U.S. 35, 42 (1995).

Orders that “substantially overlap” or are intertwined

with the “factual and legal issues of the underlying dispute” are

not separate from the merits under Cohen, “making such deter-

minations unsuited for immediate appeal as of right under

§ 1291.” Biard, 486 U.S. at 529. The District Court’s prelimi-

nary order is not separate from the merits of the pending pro-

ceedings. The preliminary order is but a “tentative, informal,

[and] incomplete” step on the issue of how far the District

Court can go toward a final sale. Cohen, 337 U.S. at 546. The

District Court will decide how far is too far in the forthcoming

order on sale procedures, after further briefing. Crystallex Int’l

Corp., 2021 WL 129803, at *16–17. Venezuela’s claim that

this preliminary decision to determine sale procedures goes too

far will substantially overlap with and merge into the merits of

the forthcoming final decision on sale procedures, so it is not

collateral to the pending proceedings.

* * *

28

We lack jurisdiction over the appeals, so we will dis-

miss them. In doing so, we express no opinion on the merits,

as they are not before us. Venezuela or other appellants may

raise their arguments in a future appeal from a final decision,

and we will consider their arguments then.

29