Securities & Exchange Commission v. Olins

541 F. App'x 48
CourtCourt of Appeals for the Second Circuit
DecidedOctober 15, 2013
DocketNo. 12-5018-cv
StatusPublished
Cited by1 cases

This text of 541 F. App'x 48 (Securities & Exchange Commission v. Olins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Securities & Exchange Commission v. Olins, 541 F. App'x 48 (2d Cir. 2013).

Opinion

SUMMARY ORDER

Respondent-Appellant American Bank & Trust Company (“AB & T”) appeals from two orders of the United States District Court for the Southern District of New York (Cote, J.), issued on October 18, 2012, and November 8, 2012, in connection with a receivership in which AB & T is both receiver and a secured creditor with regard to receivership assets. The district court ordered that AB & T, in its capacity as receiver, use the receivership funds first to pay the secured debt owed to AB & T and second to pay an unsecured judgment owed to Plaintiff-Appellee Securities and Exchange Commission (“SEC”), including interest accrued on each debt until the date of the order establishing the receivership, after which the parties would be permitted to address the payment to either party of any interest accruing after the appointment of the receiver. AB & T argues that the district court erred by ordering that the SEC be paid the amount of its judgment and pre-appointment interest before AB & T is paid in full — which, according to AB & T, includes payment of both its pre- and post-appointment interest. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.

The appellate jurisdiction of the courts of appeals is “generally limited to ‘final decisions of the district courts.’” In re World Trade Ctr. Disaster Site Litig., [50]*50521 F.3d 169, 178 (2d Cir.2008) (quoting 28 U.S.C. § 1291). Between them, the parties cite several exceptions to this general rule in asserting that this matter is properly before us. These include two statutory exceptions: 28 U.S.C. § 1292(a)(1), allowing appeals from certain orders regarding injunctions, and § 1292(a)(2), allowing appeals from certain orders regarding receiverships. AB & T also contends that jurisdiction is proper pursuant to Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and Forgay v. Conrad, 47 U.S. (6 How.) 201, 12 L.Ed. 404 (1848). We conclude that none of these exceptions is applicable and that we lack jurisdiction in the absence of a final judgment. Accordingly, we dismiss this appeal.

A. Statutory Jurisdiction

Section 1292(a)(1) allows immediate appeals of district court orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” While this provision may, at times, permit interlocutory review of orders regarding receiverships, see SEC. v. Credit Bancorp, Ltd., 290 F.3d 80, 86-87 (2d Cir.2002), such orders must fall within the terms of § 1292(a)(1). Here, the challenged orders constituted neither the modification of an injunction nor its grant, continuation, refusal, or dissolution. Instead, as contemplated in the original receivership order (which grants AB & T the authority to “mak[e] legally required payments to creditors and agents of the Receivership Estate” and further states that “[fjollowing a determination by the Court of the amounts owed by the Defendants to each creditor as well as the priorities of each creditor, ... the Receiver may, without further order of the Court, pay down such indebtedness in order of priority”), the orders here merely determined the amounts owed to AB & T and to the SEC as of the appointment of the receivership, and then permitted AB & T, as receiver, to disburse funds to pay those debts. A party “cannot now appeal from an order which has neither further modified the terms of the preliminary injunction nor the powers of the receiver, but which merely permits an expenditure in accordance with the provisions of these previous orders.” IIT v. Vencap, Ltd., 519 F.2d 1001,1020 (2d Cir.1975), abrogated on other grounds, Morrison v. Nat’l Austl. Bank Ltd., 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). These orders were among “the scores of discretionary administrative orders a district court must make in supervising its receiver,” id., and thus do not fall within the scope of § 1292(a)(1).

We likewise lack jurisdiction under § 1292(a)(2), which provides for the appeal of “[ijnterlocutory orders appointing receivers, or refusing orders to wind up receiverships or to take steps to accomplish the purposes thereof, such as directing sales or other disposals of property.” AB & T argues that jurisdiction is proper because the district court’s order constitutes a refusal “to take steps to accomplish the purposes” of the receivership. In IIT v. Vencap, Ltd., however, we rejected this very argument, holding that § 1292(a)(2) did not provide jurisdiction over the appeal of an order permitting disbursement of receivership funds and noting that the clause on which AB & T relies “seems to have been properly read as directed only to situations in which an application has been made by an interested party to have the receivership completed by sales or other dispositions and the district court has refused so to order.” Vencap, 519 F.2d at 1020; see also SEC v. Am. Bd. of Trade, Inc., 829 F.2d 341, 344 (2d Cir.1987) (dismissing an appeal of orders invalidating a [51]*51judicial sale because they “dealt with an administrative matter within the discretion of the district court, and do not fall within that class of interlocutory orders from which an appeal may be taken under Section 1292(a)(2)” (alterations and internal quotation mark omitted)). Because the orders in this case similarly did not reject a request by AB & T to complete the receivership by sale or other disposal of property, § 1292(a)(2) does not support our review.

B. Prudential Jurisdiction

AB & T’s reliance on Cohen and Forgay is also misplaced. As to Cohen, we have previously held that the collateral order doctrine does not permit appeal of the “scores of discretionary administrative orders a district court must make in supervising its receiver,” even in cases where a particular order does “finally dispose” of certain receivership funds. Vencap, 519 F.2d at 1020. The collateral order doctrine permits appeals of interlocutory orders only when three conditions are satisfied: “that an order [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” Will v. Hallock, 546 U.S. 345, 349, 126 S.Ct. 952, 163 L.Ed.2d 836 (2006) (alterations in original) (internal quotation marks omitted); see also Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 146 (2d Cir.2013) (noting that “[t]hese conditions are stringent, and the justification for immediate appeal must ... be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes” (internal citation, quotation marks, and alteration omitted)).

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Bluebook (online)
541 F. App'x 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/securities-exchange-commission-v-olins-ca2-2013.