USA V. PETROSAUDI OIL SERV. (VENEZUELA) LTD., ET AL, No. 21-56228 (9th Cir. 2023)
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The United States (“the Government”) initiated a civil forfeiture suit in federal district court against a $380 million arbitration award fund, the majority of which is held in the United Kingdom. The fund belongs to PetroSaudi Oil Services (Venezuela) Ltd. (“PetroSaudi”), a private oil company incorporated in Barbados. PetroSaudi won the award in an arbitration proceeding against Petróleos de Venezuela, S.A. (“PDVSA”), a Venezuelan state energy company. The portion of the fund held in the United Kingdom (“the fund”) is held in an account controlled by the High Court of England and Wales (“the High Court”). The Government seeks forfeiture of the fund on the ground that it derives from proceeds of an illegal scheme to steal one billion dollars from the Malaysian sovereign wealth fund 1Malaysia Development Berhad (“1MDB”). PetroSaudi challenged two orders entered by the district court.
The Ninth Circuit affirmed the district court’s interlocutory orders. The panel held that PetroSaudi’s appeal from the district court’s protective order under 18 U.S.C. Section 983 fell within this exception. Accordingly, the court had jurisdiction to consider the appeals of the two orders. The panel concluded that the sovereign immunity of the United Kingdom, as codified in the FSIA, did not protect the arbitration award fund from the two orders issued by the district court. The panel held that because the district court had in rem jurisdiction over the fund, it did not need in personam jurisdiction over PetroSaudi to issue an order preserving the fund.
Court Description: Civil Forfeiture The panel affirmed the district court’s interlocutory orders entered as part of a civil forfeiture suit brought by the United States against a $380 million arbitration award fund, the majority of which is held in the United Kingdom.
The fund belongs to PetroSaudi Oil Services (Venezuela) Ltd., a private oil company incorporated in Barbados, which PetroSaudi won the award in an arbitration proceeding against Petroleos de Venzuela, S.A., a Venezuelan state energy company. The portion of the fund held in the United Kingdom is held in an account controlled by the High Court of England and Wales. The Government sought forfeiture of the fund on the ground that it derived from proceeds of an illegal scheme to steal one billion dollars from the Malaysian sovereign wealth fund.
PetroSaudi challenged two district court orders: a warrant authorizing the arrest and seizure of any money released from the fund by the High Court, and a protective order directing PetroSaudi to deposit in the district court any money released to it from the fund after entry of the order.
Ordinarily, federal courts of appeals have appellate jurisdiction to review only “final decisions of the district courts.” 28 U.S.C. § 1291. Under the collateral order doctrine, the court has appellate jurisdiction to review an interlocutory order by a district court denying a defense of sovereign immunity. The panel held that PetroSaudi’s appeal from the district court’s order denying its motion to dismiss on the basis of foreign sovereign immunity and authorizing the arrest and seizure of the fund fell within this exception. In addition, 28 U.S.C. § 1292(a)(1) provides appellate jurisdiction to review interlocutory orders concerning injunctions. The panel held that PetroSaudi’s appeal from the district court’s protective order under 18 U.S.C. § 983 fell within this exception. Accordingly, the court had jurisdiction to consider the appeals of the two orders.
PetroSaudi argued that both of the district court’s orders were inconsistent with the sovereign immunity of the United Kingdom. The panel assumed arguendo that PetroSaudi, though not itself a sovereign, could assert as a defense the sovereign immunity of the United Kingdom. Relying on the Foreign Sovereign Immunities Act (“FSIA”), PetroSaudi argued that the sovereign immunity of the United Kingdom prevented the district court from exercising jurisdiction over the arbitration award fund and issuing its two orders. The panel held that PetroSaudi’s argument failed. The FSIA specifies a number of exceptions to immunity. The parties disagreed on the proper reading of 28 U.S.C. § 1609, but both parties agreed that FSIA only protected from “attachment arrest and execution” property that is owned by a foreign sovereign. The panel held that PetroSaudi’s premise that the fund was the property of the United Kingdom or of the High Court was unfounded. The panel held that PetroSaudi rather than the United Kingdom owned the arbitration fund. The panel concluded that the sovereign immunity of the United Kingdom, as codified in the FSIA, did not protect the arbitration award fund from the two orders issued by the district court.
In the alternative, PetroSaudi argued that the doctrine of prior exclusive jurisdiction precluded the district court from issuing the two orders. The doctrine allows the court that has first acquired jurisdiction over the res to adjudicate rights to that res without interference from another court that might later seek to acquire jurisdiction over it and to adjudicate rights to it. The panel held that the doctrine did not apply to these appeals because there was only one in rem suit—the civil forfeiture suit in the United States district court. The High Court proceedings were not themselves, nor were they part of, an in rem or quasi in rem suit. The panel concluded that because the doctrine of prior exclusive jurisdiction did not apply, the High Court’s present control of the arbitration fund was irrelevant.
Finally, PetroSaudi argued that the district court did not have jurisdiction to issue the protective order on December 9, 2021, requiring PetroSaudi to deposit in the court any money released from the fund to PetroSaudi after the date of that order. The panel held that because the district court had in rem jurisdiction over the fund, it did not need in personam jurisdiction over PetroSaudi to issue an order preserving the fund. It followed that under its broad in rem jurisdiction in civil forfeiture suits, a district court could issue injunctions to preserve the availability of property subject to civil forfeiture. The district court could order PetroSaudi to deposit in the district court any money released to it from the fund. Second, PetroSaudi’s appeal of the district court’s October 14, 2021, order, issuing a warrant authorizing attachment and seizure of any portion of the fund that has been or may be released by the High Court, did not deprive the district court of jurisdiction to issue the protective order on December 9. The panel held that at the time of the filing of the appeal from the district court’s October 14 order, the district court had already issued an order whose purpose was to prevent improper dissipation of the res. The purpose of its subsequent protective order issued on December 9, was to further the purpose of its October 14 order. The district court therefore had authority under its in rem jurisdiction to issue the 18 U.S.C. § 983(j) protective order requiring PetroSaudi to deposit any funds that might be released to them or come into their possession.
The panel concluded that the district court had the authority to exercise in rem jurisdiction over the arbitration award fund. In the exercise of this jurisdiction, the district court had the authority to issue the arrest warrant authorizing the attachment and seizure of any portion of the fund released by or retained pursuant to the orders of the High Court and to issue the §983 protective order preserving assets of the fund.
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