Opinion
19-mc-412 (LAK)
2020-02-27
IN RE: ENFORCEMENT OF PHILIPPINE FORFEITURE JUDGMENT Against All Assets of Arelma, S.A., Formerly Held at Merrill Lynch, Pierce, Fenner & Smith, Incorporated, Including, but Not Limited to, Account Number 16
Lewis A. Kaplan, District Judge.
ORDER
Lewis A. Kaplan, District Judge.
Duran's motion for summary judgment [DI-37] is denied, and the United States's cross-motion for summary judgment [DI-46] is granted, substantially for the reasons set forth in the report and recommendation of Magistrate Judge Gorenstein. Duran's objections are overruled.
SO ORDERED.
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, United States Magistrate Judge
The United States brought this action under 28 U.S.C. § 2467 on behalf of the Republic of the Philippines to enforce a Philippine forfeiture judgment against an asset held in the United States. Jose Duran, who purports to represent a class of judgment creditors, is a respondent. Both Duran and the Government have moved for summary judgment on the issue of whether this action is barred by the applicable statute of limitations, 28 U.S.C. § 2462. For the reasons stated below, Duran's motion for summary judgment should be denied and the Government's cross-motion for summary judgment should be granted.
See Motion for Summary Judgment, filed Sept. 18, 2019 (Docket # 37); Memorandum in Support of Summary Judgment, filed Sept. 18, 2019 (Docket # 38) ("Duran Mem."); Rule 56.1 Statement of Material Facts, filed Sept. 18, 2019 (Docket # 39); Declaration of Robert A. Swift in Support of Motion for Summary Judgment, filed Sept. 18, 2019 (Docket # 40); Affirmation of Federico R. Agcaoili in Support of Motion for Summary Judgment, filed Sept. 18, 2019 (Docket # 41); Cross-Motion for Summary Judgment, filed Oct. 2, 2019 (Docket # 46); Memorandum in Support of United States' Opposition and Cross-Motion for Summary Judgment on Statute of Limitations, filed Oct. 2, 2019 (Docket # 46-1) ("US Mem."); Reply Memorandum of Law in Support of Motion for Summary Judgment, filed Oct. 9, 2019 (Docket # 54) ("Duran Reply"); Reply Memorandum of Law in Support of Cross-Motion for Summary Judgment, filed Oct. 16, 2019 (Docket # 57) ("US Reply").
I. BACKGROUND
A. Factual Background
The assets that are the subject of this action belonged to an entity called Arelma S.A., as described in previous litigation regarding these assets. See Republic of Philippines v. Pimentel, 553 U.S. 851, 128 S.Ct. 2180, 171 L.Ed.2d 131 (2008) ; Swezey v. Merrill Lynch, Pierce, Fenner & Smith Inc., 19 N.Y.3d 543, 950 N.Y.S.2d 293, 973 N.E.2d 703 (2012). In brief, Ferdinand Marcos was the President of the Republic of the Philippines from 1965 to 1986. Swezey, 19 N.Y.3d at 546-47, 950 N.Y.S.2d 293, 973 N.E.2d 703. Marcos committed human rights violations and transferred public assets to his personal control — amassing a fortune worth billions of dollars. Id. at 547, 950 N.Y.S.2d 293, 973 N.E.2d 703. In 1972, Marcos arranged to incorporate Arelma, S.A. under Panamanian law and Arelma in turn opened a brokerage account with Merrill Lynch, Pierce, Fenner & Smith, Inc. in New York. Pimentel, 553 U.S. at 857, 128 S.Ct. 2180. Arelma deposited $2 million into the Merrill Lynch account, id., and the assets are now worth over $40 million, Registration and Enforcement of Foreign Forfeiture Judgment, filed June 27, 2016 (Docket # 1) ("Application") ¶ 1.
Marcos was forced out of office and fled the Philippines to Hawaii in 1986. See Swezey, 19 N.Y.3d at 547, 950 N.Y.S.2d 293, 973 N.E.2d 703. The Philippine Presidential Commission on Good Governance (the "PCCG") was then created to recover property he wrongfully acquired. Pimentel, 553 U.S. at 858, 128 S.Ct. 2180 ; see also Swezey, 19 N.Y.3d at 547, 950 N.Y.S.2d 293, 973 N.E.2d 703. Because Marcos had moved assets to Switzerland, the PCCG "almost immediately" sought help from the Swiss government in recovering and freezing assets that included shares in Arelma. Pimentel, 553 U.S. at 858, 128 S.Ct. 2180. In 1991, the PCCG asked the Sandiganbayan, a court in the Philippines with special jurisdiction over corruption cases, to "declare forfeited to the Republic any property Marcos has obtained through misuse of his office." Id.
Nearly two decades later, in April 2009, the Sandiganbayan entered a judgment forfeiting the Arelma account "in the estimated aggregate amount of US $3,369,975.00 as of 1983, plus all interests and all other income that accrued thereon, until the time or specific day that all money or monies are released and/or transferred to the possession of the Republic." Application, Exhibit 1 at *4-57. That judgment was appealed and on April 25, 2012, the Philippine Supreme Court affirmed the judgment. Id. at *61-94. It denied a motion for reconsideration on March 12, 2014. Id. at *98-103. On March 31, 2014, the Philippine Supreme Court Clerk entered judgment stating the forfeiture judgment was "final and executory and ... recorded in the Book of Entries of Judgments." Id. at *105-106.
"*__" indicates a page number assigned by the Court's ECF system.
B. Procedural History
In January 2015, the Philippines submitted a request for the United States to enforce the Sandiganbayan forfeiture judgment. See Application, Exhibit 4 (Affidavit of Leila M. De Lima); see also Reply, Exhibit 4 ¶ 3. The request outlined the Sandiganbayan decision and indicated that the Marcos estate and heirs were notified of the proceedings, and that some challenged the Sandiganbayan decision on appeal. Id. ¶ 4. It further stated:
The Supreme Court has issued an Entry of Judgment, pursuant to which the Sandiganbayan has issued a Writ of Execution. These issuances are not subject to further review or appeal.
Id. ¶ 5.
Per the procedure stated in 28 U.S.C. § 2467(b), the request was certified by the Assistant Attorney General for the Criminal Division on February 11, 2016. See Application, Exhibit 1 at *2. The United States in turn filed the instant case as an "Application to Register and Enforce a Foreign Forfeiture Judgment Pursuant to 28 U.S.C. § 2467" in the United States District Court for the District of Columbia on June 27, 2016.
II. GOVERNING LAW
A. Standard for Summary Judgment
Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Beard v. Banks, 548 U.S. 521, 529, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ); Celotex, 477 U.S. at 322, 106 S.Ct. 2548 (quoting Fed. R. Civ. P. 56(c) ). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[O]nly admissible evidence need be considered by the trial court in ruling on a motion for summary judgment." Raskin v. Wyatt Co., 125 F.3d 55, 66 (2d Cir. 1997) (citations omitted); see also Fed. R. Civ. P. 56(c)(4) (parties shall "set out facts that would be admissible in evidence"). In this case, there are no disputes about material facts.
B. Enforcement of a Foreign Judgment
The Government filed its application to enforce the Philippines' forfeiture judgment pursuant to 28 U.S.C. § 2467, a statute entitled "Enforcement of a foreign judgment." To have a forfeiture judgment registered and enforced by an United States district court under section 2467, a foreign nation must first submit a request to the Attorney General that includes
(A) a summary of the facts of the case and a description of the proceedings that resulted in the forfeiture or confiscation judgment;
(B) [a] certified copy of the forfeiture or confiscation judgment;
(C) an affidavit or sworn declaration establishing that the foreign nation took steps, in accordance with the principles of due process, to give notice of the proceedings to all persons with an interest in the property in sufficient time to enable such persons to defend against the charges and that the judgment rendered is in force and is not subject to appeal; and
(D) such additional information and evidence as may be required by the Attorney General or the designee of the Attorney General.
28 U.S.C. § 2467(b)(1). If, "in the interest of justice," the Attorney General certifies the request, "such decision shall be final and not subject to either judicial review or review under ... the Administrative Procedure Act." Id. § 2467(b)(2) (internal quotation marks and parentheses omitted).
The Attorney General is allowed to designate his authority with regard to 28 U.S.C. § 2467. See 28 U.S.C. § 2467(b)(1).
Once the request is certified by the Attorney General, the Government "may file an application on behalf of a foreign nation in district court of the United States seeking to enforce the foreign forfeiture or confiscation judgment as if the judgment had been entered by a court in the United States." Id. § 2467(c)(1). The Government becomes "the applicant and the defendant or another person or entity affected by the forfeiture or confiscation judgment shall be the respondent." Id. § 2467(c)(2)(A). Section 2467 defines "forfeiture or confiscation judgment" as
a final order of a foreign nation compelling a person or entity —
(A) to pay a sum of money representing ... any violation of foreign law that would constitute a violation or an offense for which property could be forfeited under Federal law if the offense were committed in the United States, or any foreign offense described in section 1956(c)(7)(B) of title 18, or property the value of which corresponds to such proceeds; or
(B) to forfeit property involved in or traceable to the commission of such offense.
Once an application is made,
The district court shall enter such orders as may be necessary to enforce the judgment on behalf of the foreign nation unless the court finds that —
(A) the judgment was rendered under a system that provides tribunals or procedures
incompatible with the requirements of due process of law;
(B) the foreign court lacked personal jurisdiction over the defendant;
(C) the foreign court lacked jurisdiction over the subject matter;
(D) the foreign nation did not take steps, in accordance with the principles of due process, to give notice of the proceedings to a person with an interest in the property in sufficient time to enable him or her to defend; or
(E) the judgment was obtained by fraud.
Id. § 2467(d)(1) (apparent typographical error corrected).
C. Statute of Limitations
The parties agree that 28 U.S.C. § 2462 is the statute of limitations applicable to section 2467. That statute provides:
[A]n action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued if, within the same period, the offender or the property is found within the United States in order that proper service may be made thereon.
III. DISCUSSION
While the parties agree that enforcement of a foreign judgment under section 2467 is governed by the five-year statute of limitations contained in section 2462, the parties disagree on when the "claim first accrued" for purposes of section 2467. Duran argues that the claim accrued "no later than November 1972 when the $2 million was deposited into a Marcos controlled account at Merrill Lynch," though he argues in the alternative that it accrued "no later than February 1986 when Marcos fled the Philippines and the Republic learned of the Arelma account." Duran Mem. at 9, 12. The Government argues that the claim did not accrue "until the Philippine judgment became ripe for enforcement under section 2467," which the Government argues was at the "earliest" 2014, the year when "all appeals in the underlying Philippine action were exhausted and a writ of execution issued." US Mem. at 1. In a footnote, the Government states that "[t]here is a strong argument that the U.S. Government's cause of action did not accrue until 2015, when the Philippines formally requested that the U.S. Government enforce the Philippine judgment." Id. at 5 n.1.
To answer the question of when the "claim" in this case "accrued," we begin our discussion with the text inasmuch as "[e]very exercise in statutory construction must begin with the words of the text." Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003) (citations omitted). "The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (citations omitted). "Where the statute's language is plain, the sole function of the courts is to enforce it according to its terms." United States v. Kozeny, 541 F.3d 166, 171 (2d Cir. 2008) (internal quotation marks omitted) (quoting United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) and citing Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992) ); accord Greenery Rehab. Grp. v. Hammon, 150 F.3d 226, 231 (2d Cir. 1998) (citing Rubin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981) ). We look to the legislative history and other tools of statutory construction only if the statutory terms are ambiguous. Greenery, 150 F.3d at 231 (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1073 (2d Cir. 1993) ); accord United States v. Dauray, 215 F.3d 257, 260, 264 (2d Cir. 2000).
We first examine the word "claim" and then turn to the question of when the claim in this case "accrued."
A. What is the "claim"?
A court may use a dictionary to determine the "ordinary, common-sense meaning of the words." United States v. Rowland, 826 F.3d 100, 108 (2d Cir. 2016) (quoting Dauray, 215 F.3d at 260 ). The relevant law dictionary definition defines "claim" as "[a]n interest or remedy recognized at law; the means by which a person can obtain a privilege, possession, or enjoyment of a right or thing." Black's Law Dictionary 301-02 (10th ed. 2009); accord In re Bridge Const. Servs. of Fla., Inc., 140 F. Supp. 3d 324, 334 n.6 (S.D.N.Y. 2015). Of course, the word "claim" cannot be read in isolation but rather must be read in the context of sections 2462 and 2467. See King v. Burwell, ––– U.S. ––––, 135 S.Ct. 2480, 2483, 192 L.Ed.2d 483 (2015) ("oftentimes the meaning — or ambiguity — of certain words or phrases may only become evident when placed in context. So when deciding whether the language is plain, the Court must read the words ‘in their context and with a view to their place in the overall statutory scheme.’ " (quoting Food Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) )).
Section 2462 states "an action, suit or other proceeding for the enforcement of any civil fine, penalty, or forfeiture ... shall not be entertained unless commenced within five years from the date when the claim first accrued." 28 U.S.C. § 2462. Thus, the claim referenced in section 2462 is the claim that gives rise to the "action, suit or other proceeding for the enforcement of [a] civil fine, penalty, or forfeiture." Id. (emphasis added). In other words, the word "claim" in section 2462, when viewed in the context of section 2467, refers to the enforcement action authorized by section 2467, not to the foreign forfeiture action that is the basis for the U.S. enforcement action.
Duran argues, however, that when a section 2467 enforcement proceeding is at issue, the word "claim" is not the claim that gives rise to the enforcement proceeding but rather is "identical [to the] claim asserted in the foreign forfeiture action," Duran Mem. at 13; see also Duran Reply at 3, and thus the "claim" in section 2462 refers to the Philippine government's claim to Marcos's wealth, which arose in 1972, see Duran Mem. at 9. Duran contends that the language in section 2467 providing that a section 2467 enforcement proceeding is brought "on behalf of a foreign nation" and that the "United States court is bound by the findings of fact of the foreign forfeiture judgment" shows that the "US Attorney General possesses no independent ‘claim’ to the funds." Duran Mem. at 13; see also Duran Reply at 3 ("The claim never becomes a claim of the United States."); Duran Reply at 5 ("[T]he Attorney General's decision to file an application cannot sua sponte transfer ownership of the claim to the Department."). Essentially, Duran's argument is that the United States in a section 2467 action is pursuing the very same "claim" that was pursued by the foreign government, and that as a result the word "claim" in section 2462 refers to the foreign government's right to make a claim on the funds at issue — not to the United States' right to bring the enforcement action. While this argument has some surface appeal, we reject its premise that the "claim" being brought in a section 2467 action is in fact the same "claim" that the foreign government had when it instituted the foreign forfeiture for purposes of section 2462. Certainly, the United States court is bound by the findings of fact of the foreign enforcement proceeding, as expressed in section 2467(e), but the claim the Government makes is of an entirely different character. The foreign claim is a claim seeking to forfeit property. The section 2467 claim is a separate action to enforce an existing foreign forfeiture judgment.
This is evident from the structure of section 2467. Section 2467 provides for a process to enforce a foreign judgment in a district court once the Attorney General certifies the foreign government's request. While section 2467 directs the court to refuse to enforce a foreign judgment if it was procedurally unfair, see 28 U.S.C. § 2467(d)(1), the section 2467 proceeding does not revisit the merits of the foreign judgment. It is of no moment that, as Duran points out, Duran Mem. at 13; Duran Reply at 3-4, 11, section 2467 denominates the United States as an "applicant" rather than a "plaintiff" and that the judgment ultimately entered is for the benefit of the foreign government. It remains the fact that the section 2467 proceeding is a separate enforcement proceeding. It is not the same "claim" that was pursued by the foreign government in its courts.
Apart from the logic of this analysis, we find support in cases interpreting section 2462 in situations where the Government follows an administrative process, such as an administrative sanctions process, before it institutes a domestic forfeiture suit. The vast majority of courts have recognized the five-year period set forth in section 2462 does not begin to run on the date the initial wrongful act took place but rather on the date the administrative process is completed. See, e.g., United States v. Worldwide Indus. Enters., Inc., 220 F. Supp. 3d 335, 342-43 (E.D.N.Y. 2016) (citing cases); accord United States v. Godbout-Bandal, 232 F.3d 637, 639-40 (8th Cir. 2000) ; United States v. Meyer, 808 F.2d 912, 915 (1st Cir. 1987).
Furthermore, section 2467 was needed to create a new claim for relief because, if section 2467 did not exist, a foreign government could not enforce its forfeiture judgment in the United States. See United States v. Federative Republic of Brazil, 748 F.3d 86, 95-96 (2d Cir. 2014). Thus, in order to make foreign forfeiture judgments enforceable in the United States, Congress needed to create a new proceeding by which such judgments could be enforced in a court. Congress chose to do so by enacting section 2467. Because a section 2467 action to enforce a foreign forfeiture judgment is the only "claim" that can be brought with respect to a foreign forfeiture judgment in the United States court system, the word "claim" in section 2462, which governs suits in United States courts, refers exclusively the ability to pursue the section 2467 action in the United States court, not the foreign government's ability to pursue the underlying forfeiture in a foreign court.
Accordingly, we find in this case that the "claim" at issue in section 2462 refers to the enforcement proceeding instituted under section 2467 against the Arelma account — not to the claim pursued by the Philippines in the Sandiganbayan.
B. When did the claim "accrue[ ]"?
The Supreme Court addressed the meaning of the term "accrue" in section 2462 in Gabelli v. SEC, 568 U.S. 442, 448-49, 133 S.Ct. 1216, 185 L.Ed.2d 297 (2013). As Gabelli stated, "a right accrues when it comes into existence." Id. at 448, 133 S.Ct. 1216 (alteration omitted) (quoting United States v. Lindsay, 346 U.S. 568, 569, 74 S.Ct. 287, 98 L.Ed. 300 (1954) ). Another phrasing approved by Gabelli is that "an action accrues when the plaintiff has a right to commence it." Id. (quoting 1 A. Burrill, A Law Dictionary and Glossary 17 (1850)). In a similar formulation, the Supreme Court has stated that "a statute of limitations begins to run when the cause of action ‘accrues’ — that is, when ‘the plaintiff can file suit and obtain relief." Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 105, 134 S.Ct. 604, 187 L.Ed.2d 529 (2013) (emphasis added) (quoting Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 S.Ct. 542, 139 L.Ed.2d 553 (1997) ). In other words, "[a] claim first accrues at the time that a suit could have been brought." Barden Corp. v. United States, 36 Ct. Int'l Trade 934, 941, 864 F.Supp.2d 1370 (2012).
That standard is easily applied here because there are only two possible dates that the section 2467 action could have been brought and both dates are within the limitations period: the date on which the Philippines first could have requested the Attorney General to bring the section 2467 action, or the date on which the Philippines actually requested that the Attorney General file suit.
Of these two, the date on which the Philippines actually requested that the Attorney General commence the enforcement action is the more likely candidate for the accrual date because the request of the foreign government is the event that triggers the ability of the United States to bring suit under section 2467. In other words, the ability of the U.S. Government to bring suit "accrued" to the U.S. Government upon the Philippines' request that the enforcement action be filed. Our conclusion, as stated in the previous section, that the "claim" referenced in section 2462 is the enforcement action under 2467, essentially mandates this conclusion. Indeed, Duran himself concedes that if, as we have found, the "claim" under section 2462 is the U.S. enforcement action, then the statute of limitations runs at the earliest from the date of the Philippine government request — if not from the even later date that the Attorney General certifies the request, see Duran Mem. at 13 ("If Section 2467 applications did create new ‘claims,’ ... Section 2462 would not run until the Attorney General exercises his discretion"). Duran argues, however, that this effectively means that enforcement actions are "not subject to any statute of limitations," id., because a foreign government might wait indefinitely to pursue its request to obtain foreign enforcement of a judgment. In Duran's view, this could not have been Congress's intent. See id. at 13-14.
We agree that this reading of the statutes does not place a time limitation on the foreign government's ability to request that the enforcement action be brought. At the same time, we do not find it strange that Congress might have pretermitted imposing such a limitation given that section 2467 specifically charges the Attorney General to act "in the interest of justice" in deciding whether to pursue the foreign government's request. 28 U.S.C. § 2467(b)(2). Congress could rationally have expected that the Attorney General might choose to decline to bring an enforcement proceeding if the foreign government had engaged in inordinate delay in making its request (or, indeed, in pursuing the forfeiture judgment in the first place). Additionally, Congressional intent to not begin the start of the limitation clock until a request is made is supported by the fact it is common in the United States to allow lengthy time periods — typically twenty years — for a party with a judgment to take steps to enforce that judgment.
See, e.g., Ala. Code § 6-2-32 (2019) ; Fla. Stat. § 55.081 (2019) ; Ind. Code § 34-11-2-12 (2019) ; N.J. Stat. Ann § 2A:14-5 (West 2019) ; N.Y. C.P.L.R. 211 (McKinney 2019) ; Va Code Ann. § 8.01-251 (2019).
For these reasons, we reject Duran's suggestion that Congress could not have intended to run the limitations period from the date the foreign government actually requested enforcement.
In any event, the concern regarding the ability of a foreign government engineering an unnecessary delay in making a request would be eliminated if the limitation is measured from the date the request for an enforcement action could have first been submitted to the United States Government, and even that date is within the limitations period here.
Duran argues, however, that the date the Philippines could have requested that the enforcement action be filed was not in fact 2014, when the appeal of the forfeiture judgment finally concluded, but rather was the date of the original judgment in the Sandiganbayan, or April 2009. Duran Mem. at 5, 14-15.
Once again, we reject Duran's argument. While Duran focuses on the fact that section 2467(a)(2) defines a "forfeiture ... judgment" as a "final order," and argues that the Sandiganbayan judgment was "final" in 2009, see Duran Mem. at 14-15, section 2467 also provides that a foreign government cannot make a request that an enforcement action be initiated unless it can certify that the judgment at issue "is not subject to appeal." 28 U.S.C. § 2467(b)(1)(c) ; see also In re Trade and Commerce Bank, 890 F.3d 301, 304 (D.C. Cir. 2018) ("an action for enforcement of a foreign judgment cannot be filed until that judgment ‘is not subject to appeal’ "); In re Seizure of Approximately $12,116,153.16 and Accrued Interest in U.S. Currency, et al., 903 F. Supp. 2d 19, 28 (D.D.C. 2012) ("[a]lthough the [foreign] courts entered judgments of convictions and forfeiture against these individuals, the convictions and forfeitures are not final because appeals are pending" (emphasis in original)). For purposes of determining when the ability to bring the forfeiture "accrued," the accrual date cannot be any earlier than the date on which the Philippines could have made a lawful request to the U.S. Government. As a result, the date must be on or after the date the judgment is no longer "subject to appeal." Case law applying section 2462 in instances where administrative proceedings must be completed before the Government may bring a domestic forfeiture suit judges the finality of an administrative order in exactly this fashion. See, e.g., SEC v. Mohn, 465 F.3d 647, 654 (6th Cir. 2006) (while initial administrative order was "final," "the administrative proceeding against Defendant was not final [under section 2462 ] until he either exhausted or ceased to pursue his administrative appeals"); SEC v. Pinchas, 421 F. Supp. 2d 781, 784 (S.D.N.Y. 2006) (order denying reconsideration was the "final order" that began the section 2462 statute of limitations).
Duran's scattered other arguments fare no better. Duran makes frequent reference to the Gabelli decision, arguing that it favors his interpretation of section 2462. See Duran Mem. at 6-7, 9-11; Duran Reply at 6-8. The holding of Gabelli is irrelevant to this case, however. Gabelli addressed whether a cause of action for fraud subject to section 2462 accrues on the date the fraud occurred or the date the fraud was discovered. 568 U.S. at 444-45, 133 S.Ct. 1216. Gabelli is irrelevant because, as already discussed, the "claim" at issue here is the United States' application for enforcement of the foreign judgment — not any "fraud" that might have triggered the foreign government's pursuit of the underlying forfeiture action. Moreover, in Gabelli, there was a "complete and present cause of action" for the Government to act upon at the time of the fraudulent conduct, see 568 U.S. at 448, 133 S.Ct. 1216 (citation omitted). Here, by contrast, the Government could take no action until the Philippines submitted its request — a request that could not be made until the forfeiture judgment was no longer subject to appeal.
Duran argues that the ability of the Government to seek a restraining order separate from any filing of an enforcement action as provided in 28 U.S.C. § 2467(d)(3), somehow bears on the interpretation of section 2462. See Duran Reply at 7 ("If the Republic could obtain a restraining order from a federal court in 1987, it surely had a full and complete claim at that time."); see also id. at 9-10. The ability to obtain a restraining order, however, which by statute is temporary, see 28 U.S.C. § 2462(d)(3)(A)(ii)(I) (incorporating 18 U.S.C. § 983(j)(2) ), is a process entirely separate from the process for bringing an application to enforce a "final ... order." Thus, the restraining order provision has no relevance to our construction of section 2467.
Duran makes various policy and other arguments, which we do not address because they do not grapple with the structure and the language of the relevant statutes. It is enough to say that under any rational construction of section 2467, the instant application was timely filed.
IV. CONCLUSION
For the foregoing reasons, Duran's motion for summary judgment (Docket # 37) should be denied and the United States' cross-motion for summary judgment (Docket # 46) should be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed. R. Civ. P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court, with copies sent to the Hon. Lewis A. Kaplan at 500 Pearl Street, New York, New York 10007. Any request for an extension of time to file objections or responses must be directed to Judge Kaplan. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985) ; Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).
Dated: January 30, 2020