United States District Court 

for the 

Southern District of Florida 

Samuel Barnaby Dyer Coriat, and 

others, Petitioners, 

v. 

United States of America, and 

others, Respondents. 

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Civil Action No. 22-22788-Civ-Scola 

Order Denying Stay Pending Appeal 

This matter is before the Court on the Petitioners’ motion for leave pending 

appeal. (Mot., ECF No. 31.) The Government, as the Respondent, has responded 

in opposition. (Resp., ECF No. 34.) The Petitioners have not filed an optional 

reply, and the time to do so has passed. Having reviewed the motion, the 

response, the record, and the relevant legal authorities, the Court denies the 

motion. (ECF No. 31.) 

1. Background 

The Petitioners—siblings and Peruvian citizens Samuel Barnaby Dyer 

Coriat, Sheyla Dyer Coriat, and Piero Dyer Coriat (collectively, the “Coriats” or 

the Petitioners)—filed petitions to quash IRS summons to bank accounts in their 

names seeking documents on behalf of the Peruvian tax authority, known as 

“SUNAT.” (Mot. at 1.) Previously, the Court adopted Magistrate Judge Jonathan 

Goodman’s report and recommendations and denied the petitions to quash, 

finding that Judge Goodman correctly determined that the IRS acted in good 

faith under the relevant treaty with Peru in issuing the summonses, the 

Petitioners lacked standing to object to any purported overbreadth in the 

summonses, and the Petitioners failed to make any overbreadth arguments in 

front of Judge Goodman. (Order at 2-3, ECF No. 29.) 

Now, the Petitioners seek a stay of the IRS’s enforcement of the 

summonses while they pursue their appeal of the Court’s order denying the 

petitions. (Mot. at 1.) They argue that their appeal has a “probable likelihood of 

success,” that they would suffer irreparable harm if the IRS complied with the 

summonses and transmitted the collected information to SUNAT, and that that 

there will not be any substantial harm to other parties or the public interest 

based on a short stay during appeal. (Mot. at 3-7.) The Government, in response, 

argues that the Coriats cannot establish a likelihood of success on the merits, 

that there are other remedies available to them which belie any irreparable 

harm, and that the Government and the public interest would be harmed by 

noncompliance with the United States’ treaty obligations. (Resp. at 2-7.) 

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2. Legal Standard 

Courts may grant a stay of proceedings pending an appeal. See Fed. R.

Civ. P. 62(c). To determine if such a stay is appropriate, a court must consider

four factors: “(1) whether the applicant has made a strong showing that he is 

likely to succeed on the merits; (2) whether the applicant will be irreparably 

injured absent a stay; (3) whether issuance of the stay will substantially injure 

the other parties interested in the proceeding; and (4) where the public interest 

lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (citing Hilton v. Braunskill, 481 

U.S. 770, 776 (1987)).

3. Analysis 

The Court finds that none of the factors support the issuance of a stay 

pending appeal here. First, the Petitioners do not demonstrate a strong showing 

that they are likely to succeed on the merits. Second, the Petitioners will not be 

irreparably harmed because there are alternative remedies available after the IRS 

submits the documents to SUNAT. Third, and finally, the issuance of a stay 

would injure the Government’s interests (which, in situations like here, meshes 

with the public interest). 

A. The Petitioners Do Not Establish a Substantial Likelihood of Success 

on the Merits 

The Petitioners argue that they establish a substantial likelihood of 

success on the merits because they have raised various viable factual disputes 

regarding the alleged overbreadth of the IRS subpoenas and were never provided 

the opportunity of an evidentiary hearing. (Mot. at 3-4.) Further, they argue, they 

can meet this factor by showing only a “substantial case on the merits” if “the 

balance of equities . . . weighs heavily in favor of granting the stay.” (Mot. at 4 

(quoting Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986).) 

While the Petitioners’ understanding of Garcia-Mir is correct, their 

argument misses crucial details—details that the Court previously pointed out in 

overruling their objections to Judge Goodman’s report and recommendations.

781 F.2d at 1453. The problem for the Petitioners here is twofold. First, the 

Court determined that the Petitioners do not have standing to object to the 

breadth of the subpoenas, because those subpoenas were issued to third parties 

(the banks). (Order at 2.) Second, as Court also observed, the Petitioners never 

raised any of the factual issues they now dispute when the petitions were 

originally argued in front of the Magistrate Judge. (Id.) Instead, they argued them 

for the first time on this Court’s review of the report and recommendations. (Id.) 

Accordingly, the Court does not find the Petitioners to be able to prove a 

substantial likelihood of success on the merits. And, as the Court observes 

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below, the balance of equities does not tip in their favor such that a “substantial 

case on the merits” might do. Garcia-Mir, 781 F.2d at 1453.

B. The Petitioners Would Not Be Irreparably Harmed by the IRS’s 

Compliance with SUNAT’s Requests 

While the first factor in the Court’s analysis is normally the most 

important, the second factor—the presence of irreparable harm—is the most 

determinative here. The Petitioners argue that they will suffer two forms of 

irreparable harm should the IRS be allowed to respond to SUNAT’s requests by 

providing the documents obtained under the subpoenas. First, they assert that 

“if the Petitioners’ appeal is successful, the court could not retrieve the records 

from Peru or prevent the Peruvian authorities from utilizing the information.”

(Mot. at 6.) Second, they claim, once the IRS transmits their records to SUNAT, 

their appeal will become moot. (Id.) 

Neither argument is supported by case law. First, there are remedies 

available to the Petitioners in the event that the IRS does transmit the records—

meaning that any harm is not irreparable. Second, an appeal is not mooted 

where the appellants still have a concrete interest in the outcome of the case, 

even if that interest is small. 

Although the United States Supreme Court and the Eleventh Circuit Court 

of Appeals have not directly addressed the issue of irreparable harm in the 

context of foreign treaties requiring the Government to provide foreign countries 

with tax information, the Supreme Court has addressed irreparable harm in the 

context of responses to IRS subpoenas. Church of Scientology of Cal. v. United 

States, 506 U.S. 9, 12-13 (1992). In doing so, the Supreme Court observed that 

relief may still be afforded even after documents have been turned over to the 

IRS: 

While a court may not be able to return the parties to the status quo 

ante—there is nothing a court can do to withdraw all knowledge or 

information that IRS agents may have acquired by examination of the 

tapes—a court can fashion some form of meaningful relief in 

circumstances such as these. Taxpayers have an obvious possessory 

interest in their records. When the Government has obtained such 

materials as a result of an unlawful summons, that interest is violated and 

a court can effectuate relief by ordering the Government to return the

records. Moreover, even if the Government retains only copies of the 

disputed materials, a taxpayer still suffers injury by the Government's 

continued possession of those materials, namely, the affront to the 

taxpayer's privacy. . . . Even though it is now too late to prevent, or to 

provide a fully satisfactory remedy for, the invasion of privacy that 

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occurred when the IRS obtained the information . . ., a court does have 

power to effectuate a partial remedy by ordering the Government to 

destroy or return any and all copies it may have in its possession. The 

availability of this possible remedy is sufficient to prevent this case from 

being moot.

Id.

This logic is fully applicable to the present circumstances. The Court (or 

the Eleventh Circuit) can order the IRS to destroy or return all of the collected 

information if the Petitioners’ appeal is successful. See id. Accordingly, their 

appeal will not be mooted without a stay. Id.; see also Villarreal v. United States, 

No. 11-1594-CIV, 2013 WL 3200084, at *5 (D. Nev. June 21, 2013) (applying 

Church of Scientology in a tax information treaty case and observing that “[t]his 

court, or the Ninth Circuit (if petitioner were to prevail on appeal), could still 

fashion some form of relief to petitioner because either court could require the 

IRS to return and/or destroy any material gained through the summons.”). 

Additionally, principles of international comity also suggest that, while the 

Court certainly cannot order the Peruvian tax authorities to do anything with the 

documents once received, the IRS can request that SUNAT destroy or return the 

records should the Eleventh Circuit side with the Petitioners. Villareal, 2013 WL 

3200084, at *5 (“Comity and TIEA treaty cooperation and obligations suggest 

that Mexico would comply with the same request to return or destroy materials if 

requested to do so by the United States because courts later found the manner 

the executive branch obtained the records to be procedurally invalid.”). 

C. Enforcing a Stay Would Harm the Government and the Public Interest

Finally, the Court finds that delaying the Government’s response to 

SUNAT’s request would harm the Government (and therefore the public interest) 

by impairing the Government’s ability to abide by its treaty obligations. As the 

Government observes, it is required to use its “best efforts” to assist under the 

treaty, and that includes an obligation to do so in a timely manner. (Resp. at 7); 

United States v. Diversified Grp., Inc., No. M 18-304 PKL, 2002 WL 31812701, at 

*2 (S.D.N.Y. Dec. 13, 2002) (finding that the Government’s, and therefore the 

public’s, interests would be harmed by staying enforcement of IRS subpoena on 

appeal where enforcement of the summonses was supposed to be a summary

proceeding but had been ongoing for seven months). This matter has been 

pending for nine months. The Government, and the public, have an interest in a 

timely resolution of this matter and compliance with the United States’ treaty 

obligations. 

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4. Conclusion 

Accordingly, the Court denies the Petitioners’ motion to stay pending 

appeal. (ECF No. 31.)

Done and ordered in Miami, Florida, on June 2, 2023.

_______________________________

Robert N. Scola, Jr.

United States District Judge

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