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. 

 
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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. 
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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.