12‐5018‐cv

SEC v. Olins

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.    CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.  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.

1 At a stated term of the United States Court of Appeals for the Second Circuit,

2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the

City of New York, on the 15th 3 day of October, two thousand thirteen.

4

5 PRESENT: JOHN M. WALKER, JR.,

6 DEBRA ANN LIVINGSTON,

7 DENNY CHIN,

8 Circuit Judges.

9                                                                                           

10

11 SECURITIES AND EXCHANGE COMMISSION,

12 Plaintiff‐Appellee,

13

14 ‐v‐ No. 12‐5018‐cv

15

16 ROBERT OLINS, ARGYLE CAPITAL MANAGEMENT CORP.,

17 Defendants‐Appellees,

18

19 AMERICAN BANK & TRUST COMPANY,

20 Respondent‐Appellant.

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22

23
1 JAMES H. FORTE (David H. Herrold, Doerner,

2 Saunders, Daniel & Anderson, L.L.P., on the

3 brief), SAIBER LLC, Florham Park, NJ, for

4 Respondent‐Appellant.

5

6 THEODORE J. WEIMAN (Anne K. Small,

7 Michael A. Conley, Jacob H. Stillman,

8 William K. Shirey, on the brief), Securities and

9 ExchangeCommission,Washington,D.C.,for

10 Plaintiff‐Appellee.

11

12 UPON DUE CONSIDERATION,ITIS HEREBY ORDERED, ADJUDGED,

13 AND DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.

14 Respondent‐Appellant American Bank & Trust Company (“AB&T”) appeals

15 from two orders of the United States District Court forthe Southern District of New

16 York (Cote, J.), issued on October 18, 2012, and November 8, 2012, in connection

17 with a receivership in which AB&T is both receiver and a secured creditor with

18 regard to receivership assets.  The district court ordered that AB&T, in its capacity

19 as receiver, use the receivership funds first to pay the secured debt owed to AB&T

20 and secondto pay anunsecuredjudgment owed to Plaintiff‐Appellee Securities and

21 Exchange Commission (“SEC”), including interest accrued on each debt until the

22 date of the order establishing the receivership, after which the parties would be

23 permitted to address the payment to either party of any interest accruing after the

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1 appointment of the receiver.  AB&T argues that the district court erred by ordering

2 that the SEC be paid the amount of its judgment and pre‐appointment interest

3 before AB&T is paid in full – which, according to AB&T, includes payment of both

4 its pre‐ and post‐appointment interest.  We assume the parties’ familiarity with the

5 underlying facts and the procedural history of the case.

6 The appellate jurisdiction ofthe courts of appeals is “generally limitedto ‘final

7 decisions of the district courts.’”  In re World Trade Ctr. Disaster Site Litig., 521 F.3d

8 169, 178 (2d Cir. 2008) (quoting 28 U.S.C. § 1291).  Between them, the parties cite

9 several exceptions to this generalrule in asserting that this matteris properly before

10 us.  These include two statutory exceptions:  28 U.S.C. § 1292(a)(1), allowing appeals

11 from certain orders regarding injunctions, and § 1292(a)(2), allowing appeals from

12 certain orders regarding receiverships.   AB&T also contends that jurisdiction is

13 proper pursuant to Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and

14 Forgay v. Conrad, 47 U.S. (6 How.) 201 (1848).   We conclude that none of these

15 exceptions is applicable and that we lack jurisdiction in the absence of a final

16 judgment.  Accordingly, we dismiss this appeal.

17

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1 A. Statutory Jurisdiction

2 Section1292(a)(1) allows immediate appeals ofdistrict court orders “granting,

3 continuing, modifying,refusing or dissolving injunctions, orrefusing to dissolve or

4 modify injunctions.”    While this provision may, at times, permit interlocutory

5 review of orders regarding receiverships,see SEC. v.Credit Bancorp, Ltd., 290 F.3d 80,

6 86‐87 (2d Cir. 2002), such orders must fall within the terms of § 1292(a)(1).  Here, the

7 challenged orders constituted neitherthe modification of an injunction norits grant,

8 continuation, refusal, or dissolution.    Instead, as contemplated in the original

9 receivership order (which grants AB&T the authority to “mak[e] legally required

10 payments to creditors and agents of the Receivership Estate” and further states that

11 “[f]ollowing a determination by the Court of the amounts owed by the Defendants

12 to each creditor as well as the priorities of each creditor, . . . the Receiver may,

13 without further order of the Court, pay down such indebtedness in order of

14 priority”),the orders here merelydetermined the amounts owedtoAB&Tandto the

15 SEC as of the appointment of the receivership, and then permitted AB&T, as

16 receiver, to disburse funds to pay those debts.  A party “cannot now appeal from an

17 order which has neitherfurthermodifiedthe terms ofthepreliminary injunction nor

18 the powers of the receiver, but which merely permits an expenditure in accordance

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1 with the provisions of these previous orders.” IIT v. Vencap, Ltd., 519 F.2d 1001, 1020

2 (2d Cir. 1975), abrogated on other grounds, Morrison v. Natʹl Austl. Bank Ltd., 130 S. Ct.

3 2869 (2010).  These orders were among “the scores of discretionary administrative

4 orders a district court must make in supervising its receiver,” id., and thus do notfall

5 within the scope of § 1292(a)(1).

6 We likewise lack jurisdictionunder § 1292(a)(2), whichprovides forthe appeal

7 of “[i]nterlocutory orders appointing receivers, or refusing orders to wind up

8 receiverships or to take steps to accomplish the purposes thereof, such as directing

9 sales or other disposals of property.”   AB&T argues that jurisdiction is proper

10 because the district court’s order constitutes a refusal “to take steps to accomplish

11 the purposes” of the receivership.  In IIT v. Vencap, Ltd., however, we rejected this

12 very argument,holding that § 1292(a)(2)didnotprovide jurisdiction overthe appeal

13 of an orderpermittingdisbursement ofreceivershipfunds andnoting thatthe clause

14 on which AB&T relies “seems to have been properly read as directed only to

15 situations in which an application has been made by an interested party to have the

16 receivership completed by sales or other dispositions and the district court has

17 refused so to order.”  Vencap, 519 F.2d at 1020; see also SEC v. Am. Bd. of Trade, Inc.,

18 829 F.2d 341, 344 (2d Cir. 1987) (dismissing an appeal of orders invalidating a

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1 judicial sale because they “dealt with an administrative matter within the discretion

2 of the district court, and do not fall within that class of interlocutory orders from

3 which an appeal may be taken under Section 1292(a)(2)” (alterations and internal

4 quotation mark omitted)).  Because the orders in this case similarly did not reject a

5 request by AB&T to complete the receivership by sale or other disposal of property,

6 § 1292(a)(2) does not support our review.

7 B.  Prudential Jurisdiction

8 AB&T’s reliance on Cohen and Forgay is also misplaced.   As to Cohen, we have

9 previously held that the collateral order doctrine does not permit appeal of the

10 “scores of discretionary administrative orders a district court must make in

11 supervising its receiver,” even in cases where a particular order does “finally

12 dispose” of certain receivership funds.  Vencap, 519 F.2d at 1020.  The collateral order

13 doctrine permits appeals of interlocutory orders only when three conditions are

14 satisfied: “that anorder[1] conclusivelydetermine thedisputedquestion,[2]resolve

15 an important issue completely separate from the merits of the action, and [3] be

16 effectively unreviewable on appeal from a final judgment.”  Will v. Hallock, 546 U.S.

17 345, 349 (2006) (alterations in original) (internal quotation marks omitted); see also

18 Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 146 (2d Cir. 2013) (noting that

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1 “[t]hese conditions are stringent, and the justification forimmediate appeal must . . .

2 be sufficiently strong to overcome the usual benefits of deferring appeal until

3 litigation concludes” (internal citation, quotation marks, and alteration omitted)).

4 Focusing on the third prong alone, we see no reason that the decisions of the district

5 court will not be reviewable on appeal.  AB&T argues that because the United States

6 and its agencies are generally immune from suit, see Robinson v. Overseas Military

7 Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994), it will be unable to recover from the SEC

8 in the event that disbursements are improperly made.  The federal government,

9 however, is a party in this litigation, and is subject to the jurisdiction of the district

10 court in which it is a plaintiff up to the amount of its claim.  See United States v.

11 Bedford Assocs., 618 F.2d 904, 917 (2d Cir. 1980) (citing United States v. Shaw, 309 U.S.

12 495 (1940)).  Because this amount would suffice to satisfy any of AB&T’s claims of

13 overpayment to the SEC, there is no evidentreason that the district court’s decision

14 would not be effectively appealable in the regular course after a final judgment is

15 entered.

16 Last, we do not have jurisdiction under Forgay.  “Under the Forgay doctrine,

17 an order is treated as final if it directs the immediate delivery of property and

18 subjects the losing party to irreparable harm if appellate review is delayed.”  HBE

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1 Leasing Corp. v. Frank, 48 F.3d 623, 632 n.4 (2d Cir. 1995) (internal quotation marks

2 omitted).  For the reasons already stated, there is no showing here that AB&T will

3 be irreparably harmed by delaying appellate review until the district court enters a

4 final judgment.    Moreover, this Court reads Forgay narrowly, limiting its

5 applicability to orders directing “immediate delivery of physical property and . . .

6 an accounting which has not been completed.” Cinerama, Inc. v. Sweet Music, S.A.,

7 482 F.2d 66, 71 (2d Cir. 1973) (internal quotation marks omitted).  Thus, because the

8 challenged orders do not involve “a transfer of real property or chattels,” In re

9 ChateaugayCorp., 922 F.2d 86, 91 (2d Cir. 1990), and because the orders do not subject

10 AB&T to irreparable harm, the Forgay doctrine does not support appellate

11 jurisdiction.

12 CONCLUSION

13 For the foregoing reasons, the appeal is DISMISSED for lack of appellate

14 jurisdiction.

15 FOR THE COURT:

16 Catherine O’Hagan Wolfe, Clerk

17

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