15-1147 (L)
Vera v. The Republic of Cuba


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY
ORDERS FILED AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 3rd
day of June, two thousand sixteen.

PRESENT:
            ROSEMARY S. POOLER,
            BARRINGTON D. PARKER,
            DEBRA ANN LIVINGSTON,
                              Circuit Judges.
______________________________________

ALDO VERA, JR., as Personal Representative of the Estate of Aldo Vera, Sr.,
                     Plaintiff-Appellee,

        and

JEANNETTE FULLER HAUSLER, as Successor Personal Representative of the Estate of Robert Otis
Fuller; GUSTAVO E. VILLOLDO, individually and as Administrator, Executor, and Personal
Representative of the Estate of Gustavo Villoldo; ALFREDO VILLOLDO,
                      Petitioners-Appellees,

                    -v.-
                                                                 Nos. 15-1147 (L), 15-1796 (CON)
THE REPUBLIC OF CUBA,
                   Defendant,

        and

BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
                  Respondent-Appellant.1


              1
                  The Clerk of Court is directed to amend the caption as set forth above.
FOR APPELLANT:                                        KENNETH A. CARUSO, Kelly A. Bonner &
                                                      Harold W. Williford, White & Case LLP,
                                                      New York, New York.

FOR PLAINTIFF-APPELLEE:                               ROBERT A. SWIFT, Kohn, Swift & Graf,
                                                      P.C., Philadelphia, Pennsylvania; Jeffrey E.
                                                      Glen, Anderson Kill P.C., New York, New
                                                      York.

FOR PETITIONER-APPELLEE                               JAMES W. PERKINS & David Baron,
JEANNETTE FULLER HAUSLER:                             Greenberg Traurig, LLP, New York, New
                                                      York; Robert Martinez, Esq. & Ronald W.
                                                      Kleinman, Esq., Coral Gables, Florida.

FOR PETITIONERS-APPELLEES                             ROARKE MAXWELL & Andrew C. Hall,
Hall,
GUSTAVO VILLOLDO & ALFREDO                            Lamb & Hall, P.A., Miami, Florida; Edward
VILLOLDO:                                             H. Rosenthal & Beth I. Goldman, Frankfurt
                                                      Kurnit Klein & Selz, P.C., New York, New
                                                      York.

     UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
DECREED that the appeals are DISMISSED for lack of appellate jurisdiction.

       In this turnover proceeding brought pursuant to the Foreign Sovereign Immunities Act, 28

U.S.C. §§ 1330, 1602–1611 (“FSIA”), and Federal Rule of Civil Procedure 69(a) to enforce the

Petitioners’ judgments against the Republic of Cuba, third-party defendant Banco Bilbao Vizcaya

Argentaria, S.A. (“BBVA”) appeals from March 17 and May 8, 2015 orders of the United States

District Court for the Southern District of New York (Alvin K. Hellerstein, Judge). The district

court directed BBVA to turn over funds held in an account at its New York branch that were

originated in an electronic funds transfer by an agency of the Cuban government, and denied

BBVA’s motion for reconsideration. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal. Because the orders are not final under

28 U.S.C. § 1291 and are not appealable interlocutory orders under the collateral order doctrine or

§ 1292(a)(1), the appeals are dismissed for lack of jurisdiction.


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        Our appellate jurisdiction is generally limited to “final decisions” of the district court. 28

U.S.C. § 1291. The final judgment in Rule 69(a) proceedings is the “judgment that concludes the

collection proceedings.” EM Ltd. v. Republic of Argentina, 695 F.3d 201, 205 (2d Cir. 2012).

BBVA concedes that the district court’s orders do not conclude the collection proceedings and are

therefore not “final” under § 1291, but contends that they are nonetheless appealable under the

collateral order doctrine.

        An order is collateral if it (i) “conclusively determines the disputed question,” (ii) “resolve[s]

an important issue completely separate from the merits of the action,” and (iii) would “be effectively

unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006). BBVA

argues that the district court’s orders are collateral because they conclusively determine the issue

of whether the Petitioners’ judgments are void for lack of subject matter jurisdiction, that issue is

separate from the merits issue of “collection of assets,” and the orders would be effectively

unreviewable on appeal from a final judgment because they involve a denial of Cuba’s immunity

from suit. Appellant’s Br. at 1–2.

        In the context of the FSIA, however, we have repeatedly distinguished between claims of

immunity from suit, denials of which are appealable collateral orders, and claims of immunity from

attachment, denials of which are not appealable. Blue Ridge Investments, L.L.C. v. Republic of

Argentina, 735 F.3d 72, 80 (2d Cir. 2013) (citing Kensington Int’l Ltd. v. Republic of Congo, 461

F.3d 238, 240 (2d Cir. 2006)). That distinction exists because immunity from suit is effectively lost

if a party is wrongfully required to endure the burdens of litigation, while an order denying

immunity from attachment is akin to an order requiring the posting of security, which will “generally

cause no irreparable loss in that parties posting security will be repaid with interest if they prevail.”


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Caribbean Trading & Fid. Corp. v. Nigeria Nat’l Petroleum Corp., 948 F.2d 111, 114 (2d Cir.

1991); see also Kensington, 461 F.3d at 241–42 (holding that order requiring foreign sovereign to

post security, which is “indistinguishable from an order of attachment,” was not immediately

appealable and could be considered only on petition for a writ of mandamus). Here, because the

district court’s orders require BBVA to turn over funds held on behalf of a Cuban agency or

instrumentality, they involve the denial of immunity from attachment, rather than suit, and are not

collateral.

        Attempting to avoid this well-settled rule, BBVA urges that “even if there were some bar to

collateral-order appeal where the case involves immunity from execution, such bar would not apply

here” because the “real issue” is “immunity from suit.” Appellant’s Reply Br. at 7. The only reason

that Cuba has immunity from execution, BBVA contends, is because the judgments are void, and

the only reason that the judgments are void is because Cuba has immunity from suit; consequently,

this case “involve[s] a threshold determination of FSIA immunity from suit.” Id. (alteration in

original) (quoting Blue Ridge, 735 F.3d at 80). We disagree. Although the district court’s orders

implicate Cuba’s immunity from suit, that is the case with every order of attachment in the FSIA

context because a court is always required to confirm that it has subject matter jurisdiction. See

Walters v. Indus. & Comm. Bank of China, Ltd., 651 F.3d 280, 286–87 (2d Cir. 2011). BBVA’s

position would collapse the distinction between orders denying immunity from suit and those

denying immunity from attachment.

        The district court’s orders also are not collateral because they did not “conclusively

determine” the question of Cuba’s immunity from suit. That issue was instead resolved by the

district court’s August 22 and September 9, 2014 orders, which denied BBVA’s motion to dismiss


                                                -4-
for lack of subject matter jurisdiction and denied reconsideration. To be sure, in its March 17, 2015

opinion and order and accompanying turnover order, the district court reiterated that it had subject

matter jurisdiction. Special App’x at 38, 46. Neither order, however, broke new ground as far as

jurisdiction is concerned. The reiteration of a prior determination (made in the August 22 and

September 9, 2014 orders) that was immediately appealable does not render the March 17 order

collateral. See Lora v. O’Heaney, 602 F.3d 106, 111–12 (2d Cir. 2010) (holding that order denying

reconsideration of denial of qualified immunity was not immediately appealable because the earlier

order had “conclusively determined” the qualified immunity question). Had BBVA wished to

appeal the denial of immunity from suit, it could have appealed one or both of the August 22 and

September 9, 2014 orders.

       As an alternative, BBVA asserts that we have jurisdiction under 28 U.S.C. § 1292(a)(1),

which provides that “the courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory

orders of the district courts of the United States . . . granting . . . injunctions.” BBVA relies upon

the following provision in the turnover order:

               Each and every party to this proceeding is hereby and shall be
               restrained and enjoined from instituting or prosecuting any claim or
               action against the Garnishee Banks in any jurisdiction arising from
               or relating to any claim or action against the Garnishee Banks in any
               jurisdiction arising from or relating to any claim to the Noticed Phase
               I Account at BBVA which BBVA turns over to the U.S. Marshal in
               compliance with this Order.

Special App’x at 49. However, § 1292(a)(1) functions only as a narrowly tailored exception to the

policy against piecemeal appellate review. Accordingly, in the absence of a motion specifically

seeking injunctive relief, BBVA must show that the order “(1) might have a serious, perhaps

irreparable consequence; and (2) can be effectually challenged only by immediate appeal.”


                                                  -5-
Bridgeport Guardians, Inc. v. Delmonte, 537 F.3d 214, 220 (2d Cir. 2008). Here, the turnover order

granted injunctive relief to BBVA but did so in response to the Petitioners’ motion specifically

seeking a turnover of funds, and we have recognized that an order providing for attachment or

turnover does not constitute injunctive relief unless the adversely affected party is required to bring

the property in from out-of-state. See, e.g., In re Feit & Drexler, Inc., 760 F.2d 406, 411–12 (2d Cir.

1985) (distinguishing order requiring surrender for attachment of property already in state, which

is not appealable under § 1292(a)(1), from order requiring party to bring property in from out-of-

state, which is); Koehler v. Bank of Bermuda, Ltd., 544 F.3d 78, 82 (2d Cir. 2008) (turnover order

was immediately appealable injunction because it required property to be brought into the state

(citing In re Feit, 760 F.2d at 412)). Indeed, were the rule otherwise, every turnover order in this

sprawling action involving nineteen financial institutions and thousands of accounts would be

subject to immediate appeal.

       Because the court’s order was made in response to the Petitioners’ request for a turnover and

does not require BBVA to bring funds into New York, BBVA must show that the order might have

a serious, irreparable consequence and can be effectively challenged only by immediate appeal. We

do not believe that BBVA has made such a showing for the same reason that orders denying

immunity from attachment are not immediately appealable under the collateral order doctrine: the

mere loss of funds pending final judgment can be remedied on appeal through recovery of the funds

with interest. Nor does the mere possibility that BBVA could be held liable on the discharged debt

in a foreign court demonstrate that we are “dealing with circumstances of some urgency.” Sahu v.

Union Carbide Corp., 475 F.3d 465, 468 (2d Cir. 2007) (alterations adopted) (quoting Huminski v.

Rutland City Police Dep’t, 221 F.3d 357, 360 (2d Cir. 2000) (per curiam)).


                                                 -6-
       We have considered BBVA’s remaining arguments and find them to be without merit.

Accordingly, we DISMISS the appeals for lack of appellate jurisdiction.

                                            FOR THE COURT:
                                            CATHERINE O’HAGAN WOLFE, Clerk of Court




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