In re ALBA Petróleos de El Salvador S.E.M. de C.V.

82 F.4th 105

IN RE ALBA PETRÓLEOS DE EL SALVADOR S.E.M. DE C.V.^*

No. 22-317

August Term 2022

United States Court of Appeals, Second Circuit

Submitted: March 17, 2023

Decided: September 18, 2023

On Appeal from the United States District Court for the District of Connecticut (Meyer, J.)

Claire A. DeLelle, Nicole Erb, Susan Grace, White & Case LLP, Washington, DC, for Appellant.

Marcos D. Jiménez, León Cosgrove Jiménez, LLP, Miami, FL, for Appellee.

Before: Park and Lee, Circuit Judges, and Stein, District Judge.^†

Park, Circuit Judge:

This case involves a dispute between two law firms, each of which claims the right to represent a Salvadoran company in its efforts to stave off a transnational judgment-collection effort. Specifically, the two firms are vying to defend ALBA Petróleos de El Salvador S.E.M. de C.V. ("ALBA") in the U.S. District Court for the District of Connecticut from the enforcement of a $45 million default judgment obtained against Colombian narco-terrorist organizations. Marcos D. Jiménez appeared to represent ALBA.¹ White & Case LLP moved to substitute itself as ALBA's counsel. Both purport to represent ALBA. White & Case argued that the political-question doctrine, the act-of-state doctrine, and Venezuelan law required the district court (Meyer, J.) to allow it to represent ALBA. Jiménez responded that he had the right to represent ALBA under Salvadoran law. The district court denied White & Case's motion, holding that Salvadoran law governed and authorized Jiménez's representation. White & Case filed this interlocutory appeal and, in the alternative, a petition for a writ of mandamus.

We lack appellate jurisdiction over this interlocutory appeal of the denial of a third-party motion to substitute counsel. Such an appeal fails to satisfy the requirements of the collateral order doctrine because the denial of a motion to substitute counsel is effectively reviewable after final judgment and does not implicate an important issue separate from the merits of the underlying action. White & Case also does not meet the demanding standard required to obtain a writ of mandamus. We thus dismiss the appeal and deny the petition for a writ of mandamus.

I. BACKGROUND

A. ALBA

ALBA is a Salvadoran corporation that distributes Venezuelan oil in El Salvador. ALBA has two shareholders. The majority shareholder, with sixty percent ownership, is a subsidiary of Petróleos de Venezuela, S.A. ("PDVSA"), the national oil company of Venezuela. The minority shareholder is a nonprofit organization owned by a group of Salvadoran municipalities. The minority shareholder appointed Jaime Alberto Recinos Crespin, a Salvadoran national, to the ALBA board, and Crespin also serves as ALBA's legal representative.

B. The Caballero Litigation

The plaintiff in the underlying lawsuit is Antonio Caballero, whose father, a former Colombian ambassador to the United Nations, was kidnapped, tortured, and assassinated by the Revolutionary Armed Forces of Colombia ("FARC"). See Caballero v. Fuerzas Armadas Revolucionarias de Colombia, No. 18-cv-25337, 2020 WL 7481302, at *1 (S.D. Fla. May 20, 2020). Caballero sued FARC and the Norte de Valle Cartel in the U.S. District Court for the Southern District of Florida under the Anti-Terrorism Act, 18 U.S.C. § 2333, and obtained a default judgment of over $45 million. See id. at *7.

Caballero alleges that ALBA is an agency or instrumentality of FARC due to its connection to PDVSA. He sued ALBA in the U.S. District Court for the District of Connecticut, seeking to enforce the default judgment from the Southern District of Florida against ALBA's account at Interactive Brokers, LLC of Greenwich, Connecticut. Initially, no parties appeared to oppose Caballero, so the district court entered a default judgment.²

Following the entry of default judgment, ALBA sought to intervene, represented by Jiménez and his local counsel. White & Case and its local counsel then moved to substitute themselves for Jiménez as ALBA's counsel. The district court held its decision on the motion to intervene pending its ruling on the motion to substitute counsel. It ordered the attorneys to brief their authority to act for ALBA.

Developments in Venezuela provide context for the disagreement. Beginning in 2019, two groups claimed control of the Venezuelan government: one affiliated with Nicolás Maduro and the other with Juan Guaidó. The United States and El Salvador both recognized the Guaidó government.³ White & Case alleges that the Maduro faction "seized and maintained unlawful control of" PDVSA, after which the Guaidó faction established an "ad hoc administrative board to manage PDVSA's affairs." Appellant's Br. at 2, 7.

Neither side questioned the factual basis of the other's authorization:

• Jiménez claimed that Crespin, ALBA's legal representative, hired him to defend ALBA. No party disputes that Crespin was ALBA's legal representative or that, under Salvadoran law, ALBA's legal representative was responsible for retaining counsel.

• White & Case claimed the Guaidó-backed ad hoc board of PDVSA, the parent of ALBA's majority shareholder, hired it to defend ALBA. It argued that under Venezuelan law, the ad hoc board had the authority to retain counsel for ALBA.⁴

The district court reasoned that "the dispute is ultimately about whether the law of El Salvador or the law of Venezuela should control." Caballero v. Fuerzas Armadas Revolucionarias de Colombia, 579 F. Supp. 3d 315, 321 (D. Conn. 2022). It held that the law of El Salvador governs based on the "presumption that the law of a company's state of incorporation governs . . . issues involving the internal affairs of a corporation." Id. (cleaned up). The district court rejected White & Case's argument that "the act of state doctrine require[d] [it] to defer to the law of Venezuela." Id. at 325. It thus concluded that Jiménez was ALBA's rightful counsel and later granted ALBA's motion to intervene.

White & Case filed this interlocutory appeal and petitioned for a writ of mandamus, putatively on behalf of ALBA. Jiménez moved to dismiss the appeal for lack of appellate jurisdiction.⁵

II. DISCUSSION

Before considering the merits of an appeal, "we are obliged to assure ourselves that appellate jurisdiction exists." Uniformed Fire Officers Ass'n v. de Blasio, 973 F.3d 41, 46 (2d Cir. 2020). We lack jurisdiction over the appeal and deny the petition for a writ of mandamus.

A. The Collateral Order Doctrine

We have appellate jurisdiction over "appeals from all final decisions of the district courts." 28 U.S.C. § 1291. "A final decision is typically one by which a district court disassociates itself from a case," "terminat[ing] an action." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (cleaned up). In other words, the statute "disallow[s] appeal from any decision which is tentative, informal or incomplete." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The final-judgment rule ensures "efficient judicial administration" and respects "the prerogatives of district court judges." Mohawk Indus., 558 U.S. at 106, 130 S.Ct. 599.

But final decisions also include "a 'small class' of collateral rulings that, although they do not end the litigation, are appropriately deemed 'final.' " Id. (quoting Cohen, 337 U.S. at 545-46, 69 S.Ct. 1221). "That small category includes only decisions that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Swint v. Chambers Cnty. Comm'n, 514 U.S. 35, 42, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995). "All three of the requirements for appeal under the collateral order doctrine must be met." Fischer v. N.Y. State Dep't of Law, 812 F.3d 268, 274 (2d Cir. 2016).

The Supreme Court has "repeatedly stressed" that the collateral order doctrine must not "swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment." Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868, 114 S.Ct. 1992, 128 L.Ed.2d 842 (1994) (internal citation omitted). "This admonition has acquired special force in recent years with the enactment of legislation designating rulemaking, 'not expansion by court decision,' as the preferred means for" regulating interlocutory appeals. Mohawk Indus., 558 U.S. at 113, 130 S.Ct. 599 (quoting Swint, 514 U.S. at 48, 115 S.Ct. 1203); accord Microsoft Corp. v. Baker, 582 U.S. 23, 39-40, 137 S.Ct. 1702, 198 L.Ed.2d 132 (2017).

We apply the collateral order doctrine to "the entire category to which a claim belongs," ignoring the "particular injustice[s]" alleged in "the litigation at hand." Digit. Equip. Corp., 511 U.S. at 868, 114 S.Ct. 1992 (cleaned up). Cases do not receive "individualized jurisdictional inquiry." Mohawk Indus., 558 U.S. at 107, 130 S.Ct. 599.

Here, White & Case appeals from the district court's denial of its third-party motion to substitute counsel. The Supreme Court has categorized similar collateral orders according to the orders' functions, rather than their rationales. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 426, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) ("orders disqualifying [opposing] counsel in a civil case"); Flanagan v. United States, 465 U.S. 259, 260, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) ("pretrial disqualification of defense counsel in a criminal prosecution"); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 369, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) ("order[s] denying a motion to disqualify counsel for the opposing party in a civil case").

White & Case argues, however, that the relevant "category" of order is the "authoriz[ation] [of] representatives of an unrecognized government to appear in U.S. courts." Appellant's Br. at 52. There are two problems with this argument. First, it refers to the "particular injustice" White & Case alleges, not "the entire category to...